ZELKIN & DEBNER

[2020] FCCA 2982

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZELKIN & DEBNER [2020] FCCA 2982

Catchwords:
FAMILY LAW – Parenting – relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (3), 61DA(1), 61DAA(1)

Cases cited:

Paskandy & Paskandy (1999) FLC 92-878

Taylor & Barker (2007) FLC 93-343

Champness & Hanson [2009] FamCAFC 96

Applicant: MR ZELKIN

Respondent: MS DEBNER

File Number: MLC 9108 of 2019

Judgment of: Judge McGuire

Hearing dates: 14 & 15 October 2020

Date of Last Submission: 15 October 2020

Delivered at: Burnie

Delivered on: 12 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Robertson

Solicitors for the Applicant: Armstrong Legal

The Respondent: Appeared in person

Counsel for the Independent Children's Lawyer: Mr Lynch

Solicitors for the Independent Children's Lawyer: Peter Lynch

ORDERS

1. That the parents have equal shared parental responsibility for the children X born in 2011 (“X”) and Y born in 2013 (“Y”).

2. That X and Y live with the father.

3. That X and Y spend time and communicate with the mother as follows:

   (a)In each gazetted Victorian term school holiday as agreed between the parties but failing agreement then from the first Friday until the second Tuesday;

   (b)For a block period of four weeks in each summer school holiday such to commence on or before 24 December in 2020 and in each alternate year thereafter and such not to commence prior to 26 December in 2021 and in each alternate year thereafter;

   (c)At any reasonable time in Victoria as agreed between the parties;

   (d)At any reasonable times by telephone or other available media; and

   (e)Such other times or variations of the above as agreed between the parties from time to time.

4. That the parties share equally the cost of airfares for the children to spend time in Queensland with the mother with the mother to purchase and pay for all return airline tickets with no less than thirty (30) days prior notice to the father in writing together with provision of copies of the tickets or other evidence of the payment of the tickets whereupon the father must reimburse the mother as to one half of such travel costs within seven (7) days of receipt of evidence of payment by the mother and by direct deposit into the mother’s nominated bank account or otherwise agreed between the parents and provided that should the mother not comply strictly with this order then the father be entitled to assume that the mother has elected not to spend time-with the children on that particular occasion and then be free to make other arrangements for the children accordingly.

5. That pursuant to S65DA(2) and S62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure “A” and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Zelkin & Debner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

MLC 9108 of 2019

MR ZELKIN

Applicant

And

MS DEBNER

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings in respect of the parties’ two children being, X born in 2011 (“X”) and Y born in 2013 (“Y”). 

2. Each parent seeks orders giving them primary care of X and Y where the mother lives in Brisbane and the father lives in Melbourne.

3. Although his case summary document asks for sole parental responsibility of the children, it became apparent during the course of his evidence that the father had little understanding of the definition of ‘parental responsibility’ and readily (and properly) conceded that there should be equal shared parental responsibility for the children which is an order agreeable to the mother.

4. Regardless of whether the children live in Brisbane with their mother or in Melbourne with their father, each of the parents proposes school holiday time for the children with the other parent.  However, there remains a dispute between the parents as to the costs of such travel.  Each claim to be impecunious and effectively ask for an order for the other parent to meet the costs of travel.

Background

1. Both parties are 37 years of age.  They commenced their relationship in 2010.   They separated in 2015.

2. During the course of the relationship the mother was effectively a stay-at-home parent whilst the father was in employment.  The mother stayed in the rented former matrimonial home with the children upon separation.  She says, and her evidence is un-contradicted that the landlord introduced four relatively quick rental rises when he became aware that his tenant was a single parent.  This resulted in the mother accruing rental arrears and being evicted from the property.  The mother says that she was unable to obtain immediate alternative accommodation for herself and the children.  At this time the father was spending alternative weekends and Wednesday evenings with the children without the need for Court intervention.

3. The father commenced a new relationship with his now wife in late 2016 and they commenced living together in 2017. 

4. The children did not spend time with the father from October 2018 until September 2019.  There appeared to be some conflict between the parents at the time.  Further, the father and his current wife travelled to the Country B for a relatively lengthy stay in early 2019. 

5. The father commenced these proceedings in an application filed 13 August 2019.  There was difficulty in effecting personal service on the mother.  It eventuated that in or about October 2019 the mother removed herself and the children from Melbourne to Brisbane.  She did so without notice to or consent of the father.  The mother now says that she was forced to leave Melbourne because she was on a ‘blacklist’ of tenants owing rent and there was a two year waiting list for public housing.  She says that she had no other options to house herself and the children.

6. On 29 October 2019 my colleague Judge Kirton made orders inter alia for a recovery order for X and Y to Victoria.  That order was executed.  The mother has not returned to Victoria.  The children have since lived with the father in Melbourne.  The parents and the children attended a Child Inclusive s.11F conference on 28 November 2019 resulting in a report from Family Consultant Ms C of the same date.  Interim consent orders were made on that date providing inter alia for the children to live in Melbourne with the father and to spend time with the mother in January 2020 and such other time as agreed between the parties.

7. The matter was listed in the Callover of Defended Hearings before Judge McGuire in Melbourne in early March 2020.  An order was made for a family report.  Further specific orders were made in respect of the children’s time with the mother in Melbourne.  The matter was listed for trial.

8. A family report by Family Consultant Mr D was released on 7 September 2020.  The matter proceeded to trial in the Federal Circuit Court at Melbourne over two days commencing 14 October 2020.  It eventuated that the mother was self-represented at the trial.  The father was represented by Counsel.

9. The Court had the benefit of an Independent Children’s Lawyer, Mr Lynch, throughout the later part of the procedural matters and for the trial.  Mr Lynch has a primary view that the mother should return to Melbourne and there follow a regime of substantial and significant care of the children between the parents.

10. The father is now married to his partner Ms E. She provided an affidavit and was briefly cross-examined. 

11. The mother is now in a relationship with a man by the name of Mr F.  He is resident in the Country B.  Apparently he works in primary industry.   The mother’s evidence is that Mr F intends to relocate to Australia and for them to pursue their relationship.  Mr F did not give evidence.

12. The mother lives in rented accommodation in Brisbane. She is currently unemployed.

13. The father and his wife and the children live in Suburb G in Melbourne.  The father works for Employer H as a manager.  He claims some high degree of flexibility in his work hours but adduced no corroborating evidence from his employer.  His wife works as an administration manager also with claimed flexibility. 

14. The mother has her father and a sister who live in Melbourne. The mother’s sister, Ms J, provided an affidavit sworn 18 March 2020.   She gave evidence and was briefly cross-examined. 

15. Both children have had consultations with a psychologist. Y is being assessed for autism/hypervigilance and/or an adjustment disorder.  He has exhibited behavioural difficulties. 

The Issues

1. There is a fundamental issue as to whether the children live with their mother in Brisbane or their father in Melbourne.  Both parties argue strongly that the other should be responsible for the travel costs between Melbourne and Brisbane regardless of the children’s primary residence arrangements.

2. There are a number of specific evidentiary issues.  The mother claims that the father has a history of alcohol and opioid abuse and addiction.  She also claims to be the victim of family violence primarily in the sense of verbal abuse and financial control.  The father claims that the mother is also controlling in her behaviour and was verbally and emotionally abusive.  There has been an interim intervention order in favour of the father and the two children. There are no current intervention orders. 

The Father’s Case

1. The father says that he can provide the children with stability of lifestyle in Melbourne where they have spent the majority of their lives.  He can provide a family unit with male and female adult role models together with financial support from two working adults within the home.  He candidly admits a previous issue with opioid addiction but says that this has been addressed and similarly he claims no current problems with the use of alcohol which he says is evidenced by his secure, long term and responsible employment.  The implication from the father’s argument is that, to the contrary, the mother’s life in Melbourne post-separation became transient and she was at times homeless.  He says that she has no connections or support in Brisbane but simply chooses to live there as a lifestyle choice.  He says that the mother thwarted his relationship with the children for a 12 month period in 2018 and 2019 and as such does not have the necessary insight into the children’s needs to have a relationship with both their parents.   He says that the children’s preferences are to have a relationship of proximity with both parents but to live in Melbourne. 

The Mother’s Case

1. The mother says that she has been the primary and delegated primary parent for the children during most of their lives.  She was a stay-at-home mother during the relationship whilst the father worked.  She says that she received no actual or proper financial support from the father following separation and removed herself and the children from Melbourne to Brisbane because of necessities of accommodation where she was ‘blacklisted’ in Melbourne.  She says that the father did not actively pursue a relationship with the children during late 2018 and into 2019 and at a time that he enjoyed a prolonged holiday in the Country B with his current wife. 

2. The mother says that the father’s parenting, historically and currently, is compromised by his addictions to opioids and alcohol with a consequent and related propensity for family violence.  The mother says that she can provide full time care for the children whereas the father and his wife are both employed and require pre and after school care for the children.

3. The mother says that she cannot return to Melbourne as she has no options for accommodation for herself and the children. 

4. The implication of the mother’s argument is that the children’s preference ultimately would be to live with her and to live with her in Brisbane. 

The Evidence

1. Both parents provided affidavits, gave evidence and were cross-examined.  Both were good witnesses albeit keen to shore up their own cases and at times negative in respect of the other parent. 

2. The mother’s sister, Ms J, provided an affidavit and gave evidence.  She conceded that she may be able to accommodate the mother and the children for short periods if the mother was to travel to Melbourne but otherwise corroborated the mother’s evidence as to a lack of any long term or consistent accommodation for her in Melbourne.  Ms J also corroborated the mother’s evidence in so far as being critical of the father’s historical use of alcohol and of the mother being the primary carer for the children during the relationship. 

3. The father’s wife, Ms E, provided an affidavit sworn 30 September 2020.  She gave evidence and was cross-examined briefly.  Ms E impressed as supportive of both the father and the children in their household.  She deposed as to a poor personal relationship with the mother and was generally critical of the mother’s parenting capacity. 

4. Mr D provided a family report dated 7 September 2020 prepared after interviews of the 27 August 2020.  He gave evidence and was cross-examined.  Mr D’s recommendations are equivocal and conditional upon the Court’s views as to the mother’s proposed relocation of the children from Melbourne to Brisbane.  Clearly, however, Mr D’s preferred option for these two children is set out at [62] of his report where he says:

   The children have made it clear that they need both their parents to be living within a reasonable proximity to each other so they can see them regularly.  I consider the preferred option to be that Ms J returns to Melbourne and obtains a rental property under an hour’s drive from where Mr Zelkin is living in Suburb G.  However the issue of her being blacklisted from rentals needs to be explored and verified.  If it is the case, then she needs advice and assistance from housing services for people on low incomes who require priority accommodation.

   The status of Mr Zelkin’s past addiction to opioids and possibly alcohol is not known.  However he holds down a responsible management position with the Employer H and is able to work full time as well as exercise responsibilities toward caring for his wife and the two children.

5. Mr D was able to give an opinion in respect of the children’s behavioural problems detailed in the father’s material.  At [57] of his report Mr D says:

   I believe the children are experiencing behavioural problems, particularly the adjustment disorder, because their mother denied them contact with their father for ten months and moved to Brisbane without them knowing when they would ever see their father.  As they were getting settled in Brisbane, both at home and school, their lives were disrupted when they were taken from their mother back to their father without knowing when they would see their mother again.

6. Mr D interviewed X and Y.  At [49] Mr D reports:

   She [X] would like her father to move to Brisbane so she could see both of her parents regularly.  X is confident her mother won’t move.  She thinks her father understands why it is important for her and Y to see both parents and will move.  She thinks her mother also knows she and Y want to see both parents regularly.  However she believes her mother does not think that it is important enough for her to move.

7. Further at [51] Mr D reports Y as follows:

   However Y made it clear he wants to see both his parents ‘at the same time.’  When asked if he thought they should both live in Melbourne or Brisbane, he stated ‘they should both live in Australia, because that’s where I live.’ Y admitted he misses his mother because he hasn’t seen her for a long time and can only speak to her on the phone.  He stated that he will be able to live with them both ‘when the corona virus stops.’  Y stated that he ‘had two Mums’ and that he was happy about it.

Relevant Law

1. The orders that I am asked to make are parenting orders and as such I am obliged pursuant to s.60CA of the Family Law Act 1975 (“the Act”) to have the best interests of X and Y as my paramount consideration.

2. In determining the children’s best interests I am to reference the parties’ proposals and the probative evidence to the numerous factors set out in s.60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out at s.60B which provides as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   …

3. Section 61DA(1) provides a presumption that it be in the best interests of children for their parents to have equal shared parental responsibility for them.  ‘Parental responsibility’ is usually defined as the rights and obligations of parents for long term and important decision making for children in matters such as education, religion, medical procedure and the like.  The presumption at s.61DA(1) does not apply if the Court is satisfied that the parents (or another person living with the parent) has engaged in abuse of a child or family violence.  Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence persuading the Court that it would not be in the children’s best interests for the parents to exercise equal shared parental responsibility.

4. In the matter now before me, and given the concession by the father in the witness box, it seems that both parents propose orders for equal shared parental responsibility for X and Y. This is a matter in which both parties raise issues consistent with the broad definition of family violence in the Act. However, these matters appear to be historical and perhaps situational to their separation. Further, the evidence easily satisfies me that the personal relationship between these parents remains antagonistic and distrustful. Their communication is limited at best with a history of each retaining possession of the children to the exclusion of the other which does not argue well for cooperation into the future. Nevertheless, each in their evidence professed a desire to improve that communication and cooperation with the other.

5. Should the presumption of equal shared parental responsibility apply and not be rebutted or the Court determine, in any event, to make such an order then the legislation provides a statutory and intellectual course of consideration as to the children’s living and parenting arrangements.  Firstly, pursuant to s.65DAA(1) the Court is to consider whether the children spending equal time with each of the parents would be both in the children’s best interests and reasonably practicable.  However, given the positions taken by the mother and the father in this matter that they are steadfast in their commitments to living in Brisbane and Melbourne respectively, such an arrangement of equal time for the children between the parents is not reasonably practicable although I do note and emphasise the preferences of the children themselves as articulated to Mr D that their preference would be to having their parents live in close proximity.  If the Court is of the view that it is not both in the children’s best interests and reasonably practicable for an equal time arrangement then the Court is to consider whether the children living in a regime of ‘substantial and significant’ care with both parents is both in the children’s best interests and reasonably practicable.  ‘Substantial and significant time’ is defined in the Act as time that includes both school days and weekend/holiday days and again would not be a reasonably practicable solution in circumstances where the parents are determined to live so far apart. Consequently, the options for the Court’s consideration of these children’s best interests in respect of their living arrangements is effectively limited to whether they live primarily with their mother in Brisbane or their father in Melbourne with quality time for the children and the other parent essentially to involve only school holidays or perhaps the odd weekend.

1. It is important to understand what the Act itself is silent as to the notation of ‘relocation’.  That is, the proposed relocation of children is neither prohibited by law nor is there a presumption against it.  Rather, a proposal by a parent to relocate children is simply one factor to be considered amongst numerous others in arriving at orders which, on balance, are in the best interests of the children.  Further, superior Court authorities[1]&[2] both before and after the significant amendments to the Act in 2006, confirm that there can be no dissection of a parenting matter into discrete issues of, firstly, with whom the child shall live and then a further or separate consideration as to whether a relocation should be ‘permitted’. Again, a proposal to relocate a child is encompassed in or subsumed by the relevant parent’s proposals generally in respect of the parenting and living arrangements for the child and the considerations under s.60CC(2) and (3) of the Act.

   [1] Paskandy & Paskandy (1999) FLC 92-878

   [2] Taylor & Barker (2007) FLC 93-343

2. As the Court in Taylor & Barker (supra) noted:

   In our view, his Honour dealt with the relocation proposed in the context of his considerations of s.60CC and s.65DAA at least insofar as it was possible to do so.  It should be implicit in our conclusion in relation to this ground, that a relocation proposal should constitute to be considered and evaluated, so far as is possible, in the context in the making of the necessary findings in relation to the s.60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s.65DAA.

3. Trial judges have been assisted in the difficult determination of parenting matters involving a potential relocation by the extraction of a number of principles in relevant Full Court decisions. Those ‘principles’ can be summarised as follows:

   ·Relocation matters are to be determined generally with reference to Part VII of the Act;

   ·The child’s best interests remain the paramount but not the sole consideration;

   ·A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child’s best interests (s.60CC matters) and, where appropriate s.65DAA (reasonably practicable);

   ·The Court must consider the parties’ proposals including the advantages and disadvantages of the proposed relocation, and the Court may be required to formulate proposals itself in the best interests of the child;

   ·Neither party bears an onus to establish that a relocation or a continuation of an existing regime would best promote the best interest of the child;

   ·An applicant for relocation needs not show ‘compelling reasons’ in support of the relocation but must produce probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation is in the best interests of the child; and

   ·The child’s best interests must be weighed and balanced  with the ‘right’ of the proposed relocating parent’s’ ‘freedom of movement’ but such an adult ‘right’ must ultimately defer to the child’s best interests.

Section 60CC Factors

s.60CC(2)(a) - the benefit to the child of having a meaningful relationship with both parents

1. The family report makes it abundantly clear that these two young children are craving a frequent direct relationship with both of their parents.  The children are just nine and six years of age.  They have variously since their parents’ separation been denied direct contact with one or other of the parents.  This will have an impact on the development and maintenance of those important relationships.

2. This consideration is, of course, a ‘primary’ consideration for the Court under the legislation.  This does not mean, however, that it achieves determinative status.  Rather, it is just one of the many matters that the Court must weigh and balance in its ultimate consideration as to the children’s best interests.[3]

   [3] Champness & Hanson [2009] FamCAFC 96

3. As numerous superior Courts have observed, the ‘meaningfulness’ of a relationship between child and parent is to considered on a qualitative rather than quantitative basis.  These children, however, are desirous of a high frequency relationship which for them may well contribute directly to the quality of their eventual relationships with each of their parents.  It follows that geographical and logistical considerations are likely to impact negatively on the quality of these important relationships for such young children. 

s.60CC(2)(b) - the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. The family consultant at the s.11F meetings in November 2019 noted that each of the parents made allegations against the other of family violence in the form of verbal and emotional behaviour.  The mother alleges that she was subject to financial control by the father.  Interestingly, and whilst armed with the information from the s.11F report, the family reporter, Mr D, did not focus on these issues and it is reasonable to assume that such matters were highlighted during the period leading to and post-separation of the parents.  The mother, however, maintains that the father has a propensity for such violent behaviour and perhaps connected with what she says are his ongoing issues with opioid and/or alcohol addictions.  Quite obviously, there is now a significant distance between each of the parents physically and their communications are limited.

s.60CC(3)(a) - any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children views

1. The children are clear that they would prefer their parents to live in close proximity and maintain a high level of frequency in direct contact with each of them.

s.60CC(3)(b) - the nature of the relationship of the children with each of the  parents and  any other persons (including grandparents or other relatives

1. The nature of the relationship with each of these children’s parents has and will be impacted by the geographical choices of residence of each of the mother and the father.  These children will inevitably live primarily with one parent and their time with the other parent will be limited such that they will be almost ‘visitors’ to the other parent’s home.  That is, again, no option of equal or shared care is available to me given the positions taken by the parents.  Further, and as a result, the parent with whom the children lives will assume a greater day-to-day role and the other parent will lose opportunities for spontaneity and flexibility in their relationship with the children.

s.60CC(3)(c) - the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate and make decisions about major long-term issues in relation to the children; and to spend time with the children; to communicate with the children; and  to fulfil their  obligations to maintain the children

1. There have been long gaps for these children in their direct relationships with each of their parents.  On the evidence before me, I can find each of the parents to be in part culpable in this respect.  The father’s evidence as to why he did not more vigorously pursue a relationship with the children in late 2018 is problematic.  The mother has remained living in Brisbane despite the execution of her Honour’s recovery order but where she seems to have few, if any, ties and commitments to Brisbane.  She has no family members in Brisbane.  She has no job.  She lives in rented accommodation.  Her partner continues to live in the Country B.

s.60CC(3)(d) - the likely effect of any changes in the children's circumstances, and the likely effect on the children of any separation from either of their parents or any other child or any other person (including grandparent or other relative), with whom they have been living

1. The family report is enlightening and concerning in this respect where these children clearly crave a relationship with both their parents.  Again, they will be denied a full and meaningful relationship with both of their parents by reason of the parents own lifestyle choices.  The orders I make will inevitably result in one parent assuming a greater and almost primary role for the children’s care including matters such as their education and their extracurricular activities whilst there will be lengthy gaps in the children’s direct contact with the other parent and where that parent will be unlikely to become involved in important aspects of the children’s lives such as their schooling and other interests and activities. 

s.60CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with the remaining parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relationships and direct contact with both parents on a regular basis

1. Both parents appear entrenched in their views and in the orders that they seek that the other parent be responsible for the costs of travel between Brisbane and Melbourne.  Neither is inclined to contribute.  Each claims to be impecunious.  The mother remains unemployed.  The father and his wife are both in full time employment.  Whilst I did not conduct a detailed audit of each parents’ finances, I am left with the impression that the position taken by each of them in this issue prioritises their ongoing animosity and mistrust over any consideration of their children’s best interests.

s.60CC93)(f) - the capacity of each of the parents to provide for the children’s needs, including physical, emotional and intellectual needs

1. Each of these parents is perhaps impeached to a degree in lacking insight into the needs of these two young children to have a relationship with both of their parents.  The evidence suggests otherwise that both parents are capable of attending to the physical needs of the children.  There is some concern as to the mother’s financial situation which she seems to now be long-term unemployed.  Further, the mother’s support network, if any, is limited and certainly she gives no evidence of any ongoing support for herself and in her parenting in Queensland.  The father and his wife say that they offer a solid and stable family unit in Melbourne where both adults are in full time employment.  However, the mother argues that this requires the parents to utilise before and after school carers for the children whereas she can care for the children full time.

s.60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristic of the children that the Court thinks are relevant

1. The relevance here is the children’s ages.  They are young.  They have variously been denied direct contact with one or other of their parents.  They specifically say to the family reporter that they crave frequent direct contact with both their mother and their father. 

s.60CC(3)(h) – if the children are Aboriginal or Torres Strait Islander

1. Not relevant.

s.60CC(3)(i) – the attitude to the children, and the responsibilities of parenthood demonstrated by each of the children’s parents

1. As mentioned above, there are parts of the evidence in this case which suggest that both these parents have a propensity to put their own needs and interests above the best interests of their children.  The mother’s move for the children to Queensland lacked insight into the children’s needs to maintain a relationship with the father.  There are questions in respect of the father’s commitment during 2018 and 2019 to pursuing a relationship with the children.  I maintain concerns in the reluctance of each of these parents to pay or contribute to the children travelling between Melbourne and Brisbane so as to maintain relationships with whichever parent will not be their primary carer.

s.60CC(3) (j) and (k) – family violence involving the children or any members of the children’s families and any family violence orders that are applicable

1. These matters have been canvased above.

s.60CC(3)(l) – the orders that will be least likely to lead to the institution of further proceedings in relation to the children

1. The orders that the Court makes are intended to be prospective in working into the future.  It is also reasonably expected by Courts that the parents will move forward in a cooperative parenting manner and armed with the orders and reasons supporting those orders.  Nevertheless, any material or significant change in the circumstances of either parent or children can result in further litigation although such is obviously to be discouraged as being generally contrary to children’s best interests.  The unknowns here are many.  The mother’s circumstances appear tenuous.  She maintains a relationship with a man still resident in the Country B.  She has no employment.  Her financial position is not strong.  She has no obvious support network in Brisbane.  Her support network in Melbourne is tenuous and apparently limited to her father and sister.  As such, the orders that she seeks, being to have the children live with her in Brisbane, offer some uncertainties.  Similarly, whilst the father is superficially more stable in his lifestyle in Melbourne, he maintains that he is not financially able to even contribute to the travel costs for the children seeing their mother in Queensland if the Court orders those children to live with him in Melbourne.  As such, there are seemingly real prospects that the children’s relationships between their parents and, especially the maintaining of relationships with the non-primary carer, will be problematic into the future and may lead to further litigation.

Findings and Considerations

1. Applications which involve a proposed relocation of children, and in particular young children, are among the more difficult of those coming before these Courts. Whereas the majority of parenting applications might involve only discrete disputes as to a distribution of time between children and parents over a week or a fortnight, a proposal involving the relocation of a child deals with extremes, limited options, and serious impact on children's relationships.  The relocation of a child will inevitably leave the remaining parent with a significant sense of loss and aggrieved by the process.  The nature of the relationship between that child and the parent will be changed in its frequency and, therefore, in its very nature.  Relationships for that child with extended family members will be similarly impacted.  The feelings of loss in the remaining parent will often be accompanied by a sense of bitterness to the parent successful in the application for relocation of the child, resulting in ongoing mistrust, lack of communication and non-cooperation in the parenting of the child.  The remaining parent will be denied frequency in the relationship with the child and also any opportunity for flexibility and spontaneity in that relationship.  Opportunities for involvement in the child's schooling and extracurricular activities will be lost or at least made onerous.  Practical and logistical issues then arise in respect of travel and costs of travel.  The children, as they grow older, will develop personal relationships and commitments which will test the durability of any Court ordered time with the remaining parent.

2. To the contrary, however, orders denying an applicant parent the relocation of children will either require that parent to live in a place contrary to their preferences, wishes and ambitions or alternatively that parent will themselves become the ‘visiting’ parent with all of the attendant difficulty set out above.  Feelings of blame are then understandably attributed to the other parent resulting in a loss of trust, flexibility and cooperation.  As such, parenting matters involving a possible relocation of children will almost inevitably bring with them a sense of ‘win’ or ‘loss’ where the Courts are left with little or no room for subtle construction of orders.

3. I am able to find on the evidence that the parents here maintain an antagonistic, non-communicative, non-cooperative and generally a mutually and distrustful and suspicious relationship.

1. X and Y are just nine and six years respectively.  The family report satisfies me that the focus of their wishes and preferences is that they have a proximate and frequent relationship with both of their parents.  Understandably, therefore, the children are not of an age where they can rationally formulate any preferences as between their parents and are also reluctant to do so. 

2. I am able to find that these young children have variously been denied ongoing relationships with one or other of their parents for significant periods following the parents’ separation.  This is a result of either unilateral action, lack of positive action, or circumstances following the making of a recovery order by my colleague Judge Kirton.  Significantly, however, neither parent has, in my view, responded positively or pro-actively in maintaining relationships for X and Y with the other parent.

3. I am reasonably satisfied that there have been issues of family violence historically between these parents including violence of verbal and coercive type.  The evidence does not satisfy me on the balance of probabilities of any high degree of financial deprivation by the father of the mother during the course of their relationship, but in any event, such is of little relevance in the prospective consideration that I am now required to make.  The parties now live a considerable distance apart.  Their interactions are limited only to issues regarding their children and then very limited by reasons of their choice in that there is little voluntary communication in respect of the children.

4. I am satisfied generally that the father is settled in Melbourne.  His relationship with his current wife appears stable and is of some benefit to the children albeit I harbour concerns as to patent animosity between the mother and the current Ms E which, if to persist, will ultimately be contrary to the children's best interests.

5. I am satisfied that the children have habitually lived in Melbourne save and except for the relatively short period that they were unilaterally removed by their mother to Queensland.  They attend school.  I am satisfied that the father has attended to any relevant emotional or psychological needs presented by the children and is understanding of and sympathetic to those needs.  The father and his partner are both employed and can provide adequately for the financial support of the children.

6. The mother's personal circumstances are tenuous.  I did not have the benefit of evidence from her partner who still lives in the Country B and as such I know little or nothing of him as a prospective male role model in the children's home of the mother.  The mother remains unemployed and I also have little or no evidence as to her potential for employment and hence financial support of the children.  The evidence that I do have suggests that her current financial situation is unhealthy if not precarious.  She gave evidence that she had required financial assistance from family members for travel between Melbourne and Brisbane.

7. I accept that the mother has a preference to continue residing in Brisbane and will not return to Melbourne despite her children's statements to the family reporter.  I accept that the mother justifies this position, at least in part, on what she says was a situation of family violence in its verbal and coercive forms in Melbourne and at the hands of the father as well as her accommodation difficulties in Melbourne.

8. I am satisfied that the father will not to relocate himself and his family unit to Brisbane and this is a reasonable position given his employment and the employment of his wife.

1. I am satisfied that the mother was the primary carer for the children during the relationship if only in the sense of it being a traditional family unit with the father being engaged in employment and the mother being an at-home parent.  This situation continued after separation and until the execution of her Honour's recovery order.

2. I am satisfied generally that the children have attached and loving relationships with each of their mother and their father and that these sentiments are reciprocated.  I fear, however, that the lengthy separations from the children from one or other of their parents has and will impact on those relationships.

3. There are some advantages to the mother's proposal that the children live with her in Queensland.  Firstly, the mother herself has a desire to live in Queensland and, on all of the evidence before me, she would be happier in herself living in Brisbane and it is reasonable to assume, therefore, that the children would be more content with the mother being comfortable and happy.  As mentioned above, the children's experience generally has been of their mother being their primary and always available parent, at least until late 2019.  Leaving aside the issue of the mother’s unilateral relocation of the children from Melbourne to Brisbane in 2019, she presents as having all of the necessary attributes to care for the children except perhaps financial security.  There is no doubt that she loves and is devoted to her children and was quite obviously and understandably emotional in the witness box in respect of being separated from them. Essentially, the children's relationship with the non-primary parent will be the same whether they live with their mother in Brisbane or their father in Melbourne.

4. Nevertheless, there are advantages to the father's proposal which sit in themselves as disadvantages for the children on the mother's proposal.  Firstly, they are now settled in their home, schools and the Melbourne environment.  Melbourne has effectively been their home since their births.  They have already been disrupted by, firstly their parents separation, secondly their mother’s unilateral relocation of the children to Brisbane, and thirdly the execution of the recovery order returning them to Melbourne.  The implication of the contents of the family report and its recommendations is that these children would benefit by no further disruption.

5. Further, on the evidence, the father's position and hence his capacity to care for the children's physical needs is perhaps superior and more settled than that of the mother.  He has long-term, secure and well remunerated employment as does his current wife. Whilst the mother properly submits that she can provide full-time care for the children without the use of carers, the father's position will probably involve some use of before and after school care.  Having considered all of the evidence, however, this is not a factor which in itself would be determinative of my consideration and must be viewed generally against the context of the father providing financial support for the children by way of permanent employment.

6. As is commonly the case in matters involving potential relocation of children, the determination for the Court is a finely balanced one as observed in the positives and negatives of each party's proposal set out above.  In this matter, however, I am persuaded by issues of stability for the children which can be provided by a continuation of living in Melbourne with their father.  Whilst the mother is not required to give 'compelling' reasons for a relocation of the children, she does not, in my view, offer persuasive reasons for a further change in the children's primary care arrangements and from their general residence in Melbourne.  I say this whilst not dismissing or underestimating the fact that the mother was previously the primary carer of the children.  As the Independent Children's Lawyer notes, the evidence suggests that the father's current care for the children is 'more than adequate'.  Any criticisms of the father can also be raised in respect of the mother and, in particular, as to the insight and prioritising of the children's needs to have a relationship with both of their parents.  Perhaps as mentioned a number of times in these reasons, this Court feels somewhat inadequate in attending to these children's best interests where each of the parents maintains that they will not move from their various city locations but, even more relevant, each is unrelenting in any concession that they contribute financially to the travel costs for the children between their parents.

7. In conclusion, and for all of the reasons set out above, and on balance, I am of the view that the best interests of X and Y are served by them remaining living primarily with their father in Melbourne. This will provide them with stability.  I am satisfied as to the father's capacity to care for them.  Frankly, I might make similar conclusions in respect of the mother if she was to reconsider her position and return to Melbourne, or certainly a more shared care arrangement but she has not left the Court with that option.

8. There will be an order for the parents to have equal shared parental responsibility for the children, but an order made with some reservation given their continued animosity, limited communication, and a propensity not to prioritise the children's relationship with the other parent.  I place some weight, however, on their evidence acknowledging these pitfalls and a desire to improve.

9. Whilst I would very much like to make orders for the children's time with the mother on a frequent basis, I am bound by the evidence that is before me.  I will order that the children spend time with the mother during each holiday period in Queensland and, in accordance with some concessions by the father, in a sense loaded or weighed towards the mother during school holidays.  Despite the evidence of the parties, I will make an order that they share the costs of travel.  Both parents should take what is a necessary responsibility so that X and Y spend direct time with their mother.  I cannot emphasise anymore the need for these children, and the wishes of the children, to have an ongoing frequent relationship with each parent. 

10. There will be orders for frequent communication by various media.

11. In his helpful case summary, the Independent Children's Lawyer suggests an order that should the mother relocate to Melbourne then the children should live in a regime of 'substantial and significant time between their parents'.  On the evidence before me, such a situation would indeed be preferable but not one that is available to me now.

I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate:

Date: 12 November 2020