Reeman and Baker

[2011] FMCAfam 981

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REEMAN & BAKER [2011] FMCAfam 981

FAMILY LAW – Children – relocation – best interest – meaningful relationship.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
Taylor v Barker (2008) 37 Fam LR 461
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Collu & Rinaldo [2010] FamCAFC 53
U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36
Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458
G & C [2006] FamCA 994
Champness & Hanson [2009] FamCAFC96; (2009) FLC 93-407

Malcolm & Monroe [2011] FamCAFC 16

Applicant: MS REEMAN

Respondent: MR BAKER

File Number: NCC 1868 of 2009

Judgment of: Foster FM

Hearing dates: 3 and 4 August 2011

Date of Last Submission: 10 August 2011

Delivered at: Newcastle

Delivered on: 20 September 2011

REPRESENTATION

Solicitors for the Applicant: Equilaw Solicitors

Counsel for the Respondent: Mr Sharrock

Solicitors for the Respondent: Baker & Borthwick Solicitors

THE COURT ORDERS THAT:

1. Parenting orders made on the 18 December 2009 be discharged.

2. The Mother and Father have equal shared parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2006. (“the children”).

3. The children live with the mother.

4. The mother be permitted to relocate the residence of the children to the [S], NSW area at the conclusion of School Term 3, 2011.

5. The children spend time with the father as agreed between the father and mother in writing and failing agreement as follows:

   5.1During school term time each alternate weekend commencing on the 1st weekend after the resumption of school term from 5:30pm on Friday until 5.00pm on Sunday except on a long weekend including a Monday whereupon the period shall conclude at 5.00pm on the Monday;

   5.2For the 1st half of the school term holidays for the children or either of them being the 1st half of the school holidays at the conclusion of terms 1, 2 and 3 each year with the period to commence at the conclusion of school on the last day of school term in terms 1, 2 and 3 and the period to conclude at 12 noon on the day that marks the mid point of the school holiday period:

   5.3For the Christmas school holiday period commencing at the conclusion of Term 4 2011, from 5:30pm on the last day of school term in Term 4 until 5.00pm 27 December 2011, from 10.00am 3 January 2012 to 5:00pm 10 January 2012 and from 10.00am 17 January 2012 to 5.00pm 24 January 2012 and thereafter, for each Christmas school holiday period (commencing at Christmas school holidays 2012/2013) from 3.00pm Christmas Day each year until 12 noon the immediately following 14 January.

   5.4On the Father's Day weekend in each year from 5:30pm Friday to 5.00pm Sunday provided always that the father's time with the children shall be suspended on the Mother's Day weekend.

6. Unless otherwise agreed between the parties the following is to apply in relation to the change over time of the children with the father:

   6.1changeovers shall be at the McDonald's Family Restaurant at [R] for the purposes of the children’s weekend time with the father;

   6.2The father be responsible for the collection of the children on the last day of school terms 1, 2 and 3 from the school attended by the child [X] at the conclusion of school and the mother shall do all things necessary to ensure that the children are available for collection promptly.

   6.3 changeovers shall be at the McDonald's Family Restaurant at [R] for the purposes of the children’s time with the father commencing on Christmas day and at the conclusion of the children’s time with the father during school holidays;

7. Each party provide such consents and authorities to allow the provision to the other party of any medical report or reports in relation to the children or either of them as is required by or provided to any treating medical practitioner or practitioners.

8. Each party provide such requisite consents and/or authorities required by the preschool or school of the children or either of them to enable each party to receive report or reports, school photographs or any other notice or notices relating to the children or either of them and to permit both parents to attend the preschool or schools of the children for the purpose of attending special events involving the children or either of them and/or to speak to the teachers of the children concerning the school performance of the children or either of them.

9. Both parties be and are hereby permitted to attend on any occasion relevant to the welfare, health, education, religious undertaking, or other significant event relating to the children or either of them where the attendance of either or both parents is to be reasonably expected.

10. Each party is to telephone the other as soon as practicable upon the children or either of them becoming seriously ill, being hospitalised, or being involved in an accident when such event requires the attendance of the children or either of them upon a medical practitioner.

11. Each party have responsibility for the day-to-day care, welfare and development of the said children or either of them during such period or periods these said children or either of them are with that party.

12. The father be and is hereby restrained from denigrating the mother in the presence of the children or either of them and/or knowingly permitting any other person to do so.

13. The father be and is hereby restrained from denigrating Mr W in the presence of the children or either of them and/or knowingly permitting any other person to do so.

14. Until such time as the Department of Family and Community Services have investigated the complaints of the children in relation to inappropriate sexual behaviour at the hands of children with whom they have been in contact whilst in the care of the father, the father be and is hereby restrained from permitting or allowing or facilitating the children being in the presence of the children complained of.

15. The mother at the earliest practicable date obtain from the children’s general practitioner a referral of the children to the [H] Sexual Assault Service for such professional assistance as may be offered by that Service in relation to the children's complaints the subject of the preceding order.

16. The mother at the earliest practicable date obtain from the children's general practitioner a referral for the child [Y] to have an assessment of his speech by either a private practitioner or with the [H] Health Service and following assessment obey all reasonable recommendations and directions for treatment.

17. The father at the earliest practicable date obtained from his general practitioner a referral for counselling or ongoing counselling to assist the father with his feelings of grief and loss, to help him redirect his anger and give him strategies to manage the anger and stop involving the children in his emotional turmoil and for this purpose the father is at liberty to make available to his general practitioner and/or counsellor a copy of the Family Report released in this matter on 9 February 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1868 of 2009

MS REEMAN

Applicant

And

MR BAKER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in relation to the children [X] born [in] 2004 and [Y] born [in] 2006. (“the children”).

2. The applicant mother seeks orders that would allow her to relocate the residence of the children to [S] NSW. The respondent father at the commencement of the trial sought orders that, in effect preserve the children’s time with him pursuant to orders made on the 18 December 2009 and restrain the mother from relocating the residence of the children to anywhere outside 100km of [F], NSW.

3. The applicant mother relied on the following documents:

   a)Application filed 03 August 2010;

   b)Affidavit of the mother filed 03 August 2010;

   c)Affidavit of the mother filed 29 June 2011; and

   d)Affidavit of Mr W filed 29 June 2011.

4. The respondent father relied on the following documents:

   a)Response filed 28 October 2010;

   b)Minute of Final Order Sought

   c)Affidavit of the father filed 14 October 2009;

   d)Affidavit of the father filed 28 October 2010; and

   e)Affidavit of the father filed 01 July 2011.

Background

1. The mother is aged 38 years. The father is aged 42 years. The parties commenced cohabitation in about June 2003 and separated in November 2008.  There are two children of the relationship referred to above. The mother has a son aged 17 from a prior relationship who lives at [B] NSW. He visits the mother’s household each school holidays.

2. Following the parties separation they implemented a two week about shared care arrangement. This was facilitated as the eldest had not yet started school. At that time the children were aged only 4 and 2. That arrangement appears in hindsight to have been neither age or developmentally appropriate for the children. The looming commencement of schooling for [X] clearly required a change.

3. Proceedings were commenced by the mother in relation to the children in the [omitted] Local Court and subsequently orders were made by consent in this court on the 18 December 2009.

4. Those orders provided for:

   a)Equal shared parental responsibility,

   b)Upon the mother relocating to [G] NSW that the children live with her,

   c)That the children spend time with the father alternate weekends Friday pm. to Sunday, Wednesday afternoons after school, half of the school holidays, provision for special days and various specific issues orders

5. The orders noted that the mother agrees not to move more than 100 kilometres from [F], NSW without the consent of the father.

6. Shortly after the orders of the 18 December 2009 the mother moved to a rented cottage at [omitted] about 14 kilometres from [G]. Following separation at which time the parties and children lived in [S] the father had relocated his residence to [F] to reside with his mother. Prior to separation the parties and the children resided in a cottage on the property owned by Mr W, who at that time was the fathers employer.

7. Following the cessation of the father’s employment by Mr W’s business entity the father commenced proceedings seeking damages for unfair dismissal and workers compensation asserting psychiatric injury. Those proceedings no doubt exacerbate the father’s relationship with Mr W. Those proceedings are continuing.

8. Following her move to [G] the mother attempted to find employment in the [G] area but to no avail. She has remained dependent on Centrelink benefits to provide for her and the children.

9. The relationship between the parties was strained and on the

   
   

   11 February an Apprehended Violence Order was made for the protection of the mother from the father for a period of 12 months. That order has now expired.

10. In May 2010 the mother became engaged to marry Mr W who resides on the outskirts of [S] on a 1600 acre rural property. He has three children aged 21, 19 and 14. The mother and Mr W plan to marry [in] 2012.

11. Following the commencement of the December 2009 orders the father has availed himself of Wednesday time with the children on only the three occasions immediately after the mothers relocation but not otherwise. Otherwise the father has had time with the children substantially in accord with the orders.

12. In mid 2010 the mother expressed her desire to relocate with the children back to [S]. The parties attempted mediation but to no avail. Since moving to [G] the mother and children have spent alternate weekends in [S], staying on Mr W’s property. To the mothers observation the children have a warm relationship with Mr W. The mother has available employment on Mr W’s property as an [omitted] for which it appears she is more than suitably qualified.

13. In August 2010 the mother commenced the present proceedings. In response the father sought orders that the mother be restrained from relocating the children more than 100 kilometres from [F] or in the alternative, the children live with him and spend time with the mother on alternate weekends with each second period to be in [F] and half school holidays.

14. The mother observes that the child [X] has a close and loving relationship with the father, with the father’s relationship with [Y] improving.

15. The child [X] is presently attending [G] School where she is in Year 1. The mother has maintained the child’s enrolment at [M] School in [S] in the event that she is permitted to relocate.

16. The mother asserts that she has received no child support or financial assistance from the father since separation. The father’s child support assessment currently stands at nil. The mother receives benefits totalling $540 per week and pays rent of $200 per week, leaving her precious little to raise two children on in any semblance of a comfortable lifestyle. She relies on financial and other assistance from Mr W to survive.

The Mothers Proposals

1. The mother proposes that in the event that she is able to relocate that the children spend time with the father on alternate weekends Friday pm to Sunday pm and half school holidays. Such proposal is identical to the time the children spend with the father now save for the issue of travel and midweek time. The mother proposes a changeover at [R] which is 2 hours from [S] and 90 minutes from the father’s present residence at [F].

2. The children presently travel for significant times each weekend with the mother to [S] and back, a total about 5 hours depending on the available route. They also travel about three hours of a weekend to spend time with the father.  The mother’s proposal would see the children undertake such travel only once a fortnight and of course allow her to reside with her prospective new husband and undertake paid employment.

3. There is no doubt that the father has involved the children in his conflict with the mother and his animosity towards Mr W.

4. An issue has arisen in relation to the children being exposed to inappropriate sexual behaviour at the hands of children of three neighbours nearby to the father’s residence. The allegations by the children are specific and concerning. The mother sought assistance from the Department of Family and Community Services, Community Health at [G] and a private counsellor. Community Health is to facilitate appropriate counselling for [X]. The father to his credit has to date dealt with the issue by being vigilant and preventing contact between the children and the alleged perpetrators. This situation will continue.

5. The father has made allegations as to inappropriate behaviour by Mr W in 2009 in relation to the children. The mother appropriately responded by seeking professional intervention.  Nothing has come of such allegations. Neither party has filed a Notice of Risk of Abuse.

The Fathers Oral Evidence

1. During the course of the fathers oral evidence the following matters arose:

   a)that the father conceded that since separation the mother and children have been regularly returning the [S],

   b)that compared to the mothers present residence 14km from [G] the property of Mr W is only 1.5 km from [S],

   c)the fathers concession that compared to the community facilities in [S], [G] offers very little for the children,

   d)that notwithstanding the living circumstances of the children the father proposes at some indeterminate time to move to [K] a small hamlet about 40kms from [G] to develop his aunt and uncles property, on which he has already been undertaking unpaid work, as a [omitted].

   e)that notwithstanding making no payments for child support the father has acquired shares in a stallion and two breeding mares since separation,

   f)in April 2009 the father received $22,000 in termination payments and later a settlement of $11,000 from which he has made no effort to provided support for the children notwithstanding that he has $6,000 presently invested on term deposit.

   g)

   the husbands concession that the children’s relationship with

   
   

   Mr W is a positive thing,

   h)that the father conceded that there are employment opportunities for the father in the [S] area, where he could be involved in mid week time with the children, their schooling and their extra curricular activities but emotionally he feels he could not move there at present,

   i)that the father conceded the mothers qualifications to seek [omitted] employment,

   j)that the father continues to see a counsellor for his anxiety and depression and that his general practitioner has prescribed medication for the father but he refuses to take it,

   k)as to travel times the following exchange took place:

   “There's a number of options available to you, it seems, in that you seem perfectly capable of physical work - is that correct – working around the property at [K];  you have got your skills in relation to [omitted] – is that correct?---Yes.

   You could go to [K] in the short term if you wanted to, or in fact - the road [omitted] from [S] to [G], how long would that take, if you don't come down through [omitted] and go around on the [omitted] road?---Go over the [omitted]?

   Yes?---From [S] to [G], probably about two hours.

   So if you were at [K] you could sort of divide the travel up by meeting somewhere on the road between [S] and [G]?---I suppose so.

   Especially if you're at [K].  You wouldn't come down through [omitted] if you were living at [K] to go to [S], would you?  You would go [omitted], would you?---Well it depends on the condition of the road, your Honour.

   Yes.  I know it's a difficult road?---Yes, and it does do a lot of damage and wear and tear to your vehicle, and it is – actually, it is often closed for most of winter.”

   And later:

   “MR POWE:   Just to follow that theme:  if the mother and the children did move to [S], would you be prepared to actually drive to [S] for those weekends on the Friday so that you could go to the school and collect the children?  I'm not talking about which way you went – that would be your choice – but would you be prepared to do that, and then the mother would have to do the reverse trip?---I suppose it's an option to look at.”

   l)that the father has no objection to the child [X] being referred for sexual assault counselling nor the child [Y] for speech therapy.

   m)the fathers concession that if there was to be a move then it should happen before [Y] commences school,

   n)that the father had some insight into the impact of his feelings toward Mr W in so far as they impacted on his relationship with the children.

   o)that the father had no insight into the reality of the wife’s forthcoming marriage in that the following exchange took place:

   “HIS HONOUR:   Just before you rise, Mr Baker, the position is – is it your understanding that Mr W owns the property that he lives on?---Yes.

   It sounds, from the information thus far, that it's a reasonably significant operation.  Is that correct?---I would call it more boutique than commercial.

   All right.  And do I take it that it's your position that once the mother and Mr W marry in January next year, which is only a matter of five or six months away, that your position is they should live apart, is that right, after they marry?---That's - - -

   Is that your position?---No, well, that – that's not my – that' s not up to me.  I – I just want my children living in [G] with their mother and if – I haven't – the – the marriage isn't anything to do with me, and the children didn't ask for it.  That's all I – I can't make that decision.  I'm not asking them to live apart;  I'm just asking them to leave my children where they're happy.

   But do you understand that your position that you take is that that would require, on her re-marriage, that the mother live apart from her husband if he chooses to continue to live on his boutique operation in [S]?---Yes.  If he chooses to live on his operation in [S], yes.

   Much the same as you choose perhaps to stay in [F] or to move to [K] and not go to [S] because that's your choice.  Is that right?---Yes.”

Family Report

1. Admitted as Exhibit A was the Family Report dated 4 February 2011 prepared by Ms R. The Family Report writer was not required for cross examination.

2. The Report covers much of the history between the parties that is set out above. However matters of note are:

   a)That the children expressed concerns at the way in which the father vents to them about Mr W and they were anxious in the context of the assessment being undertaken, fearing the father would assault Mr W (at 42, 54). The Family Reporter identified the father having great difficulty separating his own emotional turmoil from that of the children and not having a clear understanding into the impact of sexual abuse on the children and his need for vigilance.

   b)The father expressed concern that if the mother relocates to [S] that he would be unable to be involved in extra curricular and school activities (at 47).

   c)The child [X] presented as zealous, intelligent and confident child who is doing well at school. [X] however is well aware of the litigation and the conflict between her parents. Particularly she is aware of the father’s strong dislike for Mr W, reciting to the Family Reporter the father’s criticisms and insults about him.

   d)[X] expressed clear views as to her wishes: to move to [S] and go to [M] School where she would be reunited with pre school friends. She clearly has affection for Mr W his children and the activities on the property (at 55). She rejected any idea of living with her father: “I would miss my mum too much.” She enjoys her time with her father but knows she is returning to her mother (at 57).

   e)[X] is primarily attached to her mother and needs to be where her mother is, remaining in her mother’s primary care (at 58). Her relationship with her father is circumspect by reason of his moods and his criticism of Mr W, who the [X] describes as “really nice”.

   f)[X] repeated her disclosures about sexual inappropriate behaviour by the father’s friend’s children to the Family Reporter. (at 60)

   g)The child [Y] separated easily from the mother for the purposes of the assessment.  He exhibited some speech difficulties but otherwise was within normal developmental parameters. He is at preschool two days a week. Due to his age his views were not sought (at 61-64) yet he volunteered that he wanted to move to [S]. He has settled into the mother’s primary care following the period of shared parenting and is enthusiastic about the present arrangement.

   h)[Y] also reflected the father’s conflict with Mr W (at 66-67).

   i)The observations of the children with the father again revealed the children’s anxiety as to the father’s prospective behaviour in regard to Mr W. The father’s interaction with the children and theirs with him was a little abstract (at 71-73).

   j)The children have a good relationship with the maternal grandmother (Mrs B) and maternal step grandfather (Mr R) as well as Mr W and his three children (at 75).

   k)The maternal grandmother and maternal step grandfather father perceptively reported that the father had been unable to move on with his life and focuses his anger at Mr W. They perceive the mother needs to move to [S] for “her own sanity” where she has support and can obtain employment (at 77-79).

   l)More concerning is the expressed concern of the maternal grandmother to whom [X] had also reported inappropriate sexual activity in great detail. Her concern is that the father does not believe [X] and will fail to protect her (at 83-85).

   m)

   The father’s involvement of the children in his anger towards

   
   

   Mr W is unacceptable and damaging to the children (at 94).

   n)The impact on the children of the mother’s proposal is that of time and travel issues and how that might impact on their daily lives (at 96). Yet at the moment they travel each weekend. The mothers proposal is for this to only occur on alternate weekends and to facilitate school holiday time.

3. The Family Reporter recommends:

   a)Equal shared parental responsibility (which is agreed).

   b)That if the mother’s reasons have merit and the move is in the children’s best interests then relocation occur with the children to have significant and substantial time with the father.

   c)That [X]’s exposure to inappropriate behaviour be properly investigated by the Department and until that is done the father not bring the children into contact with the alleged perpetrators.

   d)The children be referred to the [H] Sexual Assault Service for professional assistance.

   e)That [Y] be assessed in relation to his speech.

   f)That the father access counselling to assist him with his feelings of grief and loss, to help redirect his anger and develop coping strategies and to stop involving the children in his emotional turmoil.

Legal Principles

Relocation

1. Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration. Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 Fam LR 756 at 792his Honour Justice Kirby said:

   “[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.

3. In determining what is in a child’s best interests the court must consider the matters set out in s.60CC. Section 60CC outlines the primary (sub-s.(2)) and additional (sub-s.(3)) considerations that the court is to take into account in determining what is in the best interests of the child.

4. Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. Sections 61DA(2) & (4) provide that this presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.

5. The Full Court in Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases.

6. This particular case has as one of its elements the issue of relocation.  Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others.  The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.

7. In Taylor v Barker (2008) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:

   [53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:  see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458. 

   Their Honours went on to say:

   [83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.  Not to approach a case involving a relocation proposal  in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a  case to spend “equal time” or substantial and significant time” with each parent.

8. In Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343, Boland J. heard an appeal as a single Judge pursuant to s.94AAA(3) of the Act. At paragraphs 79 to 81, Boland J. identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour stated:

   “In considering whether the child should live with the parent who proposes to relocate a court:

   Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   - that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   - that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   - that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   - the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance”.

9. These principles were recently again cited with approval in Malcolm & Monroe[2011] FamCAFC 16.

10. The parties have attempted to resolve the issue of relocation through mediation and this court’s processes to no avail

11. The court has regard to the objects and principles set out in s.60B.

12. The court will now consider the best interest considerations set out in s.60CC.

13. As the Full Court observed in Collu & Rinaldo [2010] FamCAFC 53 at [335]:

    “There is a possible overlapping of a number of the considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of a child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of a child including the likely effect of separation from a parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2): Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J.”

The additional considerations: s 60CC (3)

Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

1. The child [X], despite her age, has clear views as to her wishes as referred to above. Whilst not unhappy in her present circumstances, she clearly sees herself being with her mother wherever that may be. As the Family Reporter observed [X] presented as zealous, intelligent and confident. Her views must be accorded appropriate weight. The child [Y] volunteered his views but as observed by the Family Reporter by reason of his age his wishes were not sought in a structured way. This consideration favours the mother.

The nature of the relationship of the child with each of the child’s parents

1. The children are clearly primarily attached to the mother but have a developing relationship with the father that is clouded by his emotional turmoil. If he continues without therapy his relationship with the children will be at risk and he needs to understand that. This consideration favours the mother.

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

1. The father’s position is that the children should live with the mother. This quite rightly recognises their primary attachment to her. The mother is clear in that she perceives in her proposal the children continuing to have a relationship with the father not much different to that presently enjoyed. Subject to the fathers emotional clouding and its appropriate treatment, both parties are willing and able to facilitate the children’s relationship with the other. This consideration favours the mother.

The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living

1. This factor is more a question of travel and time more than a significant change in the fathers overall time with the children. Whilst the children will travel longer on the mother’s proposal it will be less frequently than at present is the case. The father of course has a remedy in his own hands should he in the interests of the children move closer to [S] or indeed to [K] as contemplated by him at some indeterminate future time.  This consideration favours the mother

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. This reflects the issues set out in the previous paragraph.

The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs

1. Both parents have such capacity. However the father needs to heed the warnings in the Family Report as to the damage that his continuing emotional clouding wreaks upon the children. His involvement of the children in the conflictual nature of his relationships with the mother and Mr W will if continued damage the very relationships he needs to protect and nurture. If the father continues his behaviour and attitudes the children will require a strong and secure attachment to their mother to cope. She will need to be in circumstances where she has emotional and other support. This consideration favours the mother

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

1. Many of the matters set out above are relevant to this consideration.  In addition the mother has sought to promote the fathers relationship with the children by initially her move to [G] to meet the father’s demands because he chose to move to [F]. That move created financial uncertainty for the mother and children which was not ameliorated by any financial support at all from the father. The court finds the father has demonstrated a less than appropriate attitude to the children and his responsibilities of parenthood.  This consideration favours the mother

Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person

1. Whilst there is an expired order for the protection of the mother from the father this circumstance has no relevance. 

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The mother should she relocate will move into a new marriage, with a partner who has provided her with financial and emotional support. She will be able to work and contribute to the children’s welfare in a real way. [S] is not unfamiliar to the children. Should the father choose to move closer to [S] such would alleviate travel time and facilitate him being able to spend more time with the children and be involved in their activities. It is hoped that in that circumstance the parties can agree to proper arrangements. This consideration favours the mother

The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent s.60CC(4)

1. The court has considered this issue in the context of its findings and observations set out above.

Presumption of Equal Shared Parental Responsibility

1. The parties agree to equal shared parental responsibility and whilst that gives rise to certain considerations the parties have not sought equal time but have in their respective proposals sought that the father have  significant time with the children.

The primary considerations: s.60CC(2)

The benefit to the child of having a meaningful relationship with both of the child’s parents 

1. In Mazorski v Albright[2007] FamCA 520; (2007) 37 Fam LR 518 Brown J. considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In Champness & Hanson[2009] FamCAFC 96; (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83,502:

   “The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)

3. The Full Court also observed at 83,513:

   “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’   

4. The mother’s proposal sees the children retain substantially the same temporal relationship with the father. At present they have a good relationship with him that is subject to threat not from the mother’s proposal to relocate but his own emotional and anger issues. He himself is the risk to his ongoing meaningful relationship with the children. If they are have a relationship with the father that is valuable to them then the answer lies in his hands. He can continue in his present mode of anger and conflict, directly or indirectly involving the children to their detriment. In such a case his relationship with them will be on tenuous ground as they get older.  Otherwise he can stand back and consider the damage he is doing to the quality of their relationship with him and do something about it. This consideration favours the mother

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. The fathers emotional clouding referred to extensively above is an insidious issue. The remedy is in his hands.

2. Otherwise the issues as to the father exposing the children to risk of inappropriate sexual activity is of pressing concern.  It is well to say that he is “vigilant” but the damage is likely to be deepened with any continuing exposure of the children to the alleged perpetrators until the matter is properly investigated. Injunctive orders will be made as to protection and therapeutic intervention.

Conclusion

1. For these reasons the court in weighing the various factors considered above finds that the proposal of the mother is in the best interests of the children. The father’s proposal to limit the mother’s ability to relocate to 100kms of his present town of [F] places the mother in a circumstance not dissimilar to her present predicament: isolated, unemployed and without support from the father. The fathers proposal in reality means that the mother either remains in her present circumstances in [G] or should the mother relocate her only option would be to move to [F], separated from her prospective husband, necessitating a change of schools and uncertain as to her financial security and without employment that meets her skills. The words of Kirby J in AMS and AIF (1999) 24 Fam LR 756 referred to above require the court to consider the children’s best interests not in the abstract separated from their primary carer’s circumstances.

2. The court accordingly makes the orders set out at the commencement of this judgment.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Foster FM

Date:  20 September 2011