Processing your request, Please wait....


Federal Magistrates Court emblem

Webber & Pandor [2012] FMCAfam 1059

Categories: International Relocation, Relocation
Tags: ,

Judge Name: Bender FM
Hearing Date:
Decision Date:03/10/2012
Applicant: Ms Webber
Respondent: Mr Pandor
Solicitor for the Applicant: Peter Baker & Associates
Solicitor for the Respondent: In person
File Number: MLC 3022 of 2012
Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Cases Cited: AMS v AIF (1999) 199 CLR 160U v U (2002) 211 CLR 238
Taylor v Barker (2007) 37 Fam FLR 461
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Cowley & Mendoza [2010] FamCA 597
MRR v GR [2010] HCA 4
Jurisdiction: Family Law Division of the Federal Magistrates Court of Australia
Parental Responsibility Outcome: Not Relevant
Residential Outcome: Not Relevant


 ] Download Decision

media mentions ] 
Select to highlight: Tags | Expert |
Save pagePDF pageEmail pagePrint page

ORDERS

The parties have equal shared parental responsibility for the children X born (omitted) 2007 (“X”) and Y born (omitted) 2010 (“Y”).

X and Y live with the mother.

Until 25 April 2015, the mother be restrained by injunction from changing X and Y’s place of residence to more than 150 kilometres from (omitted), Victoria without the written consent of the father or further order of this Court.

From 25 April 2015, the mother be permitted to relocate with X and Y to the United States of America.

Whilst X and Y are residing within 150 kilometres of (omitted), Victoria, they spend time and communicate with the father as follows:

each alternate weekend from 10.00am Saturday to before school, or 8.00am if not a school day, Monday commencing 6 October 2012 and each alternate weekend thereafter;

upon Y turning three years of age, each alternate weekend from after school Friday or 3.30pm if not a school day, to before school Monday or before school Tuesday if Monday is a public holiday;

for four days in the first and second term school holidays in 2013 on such days as agreed between the parties in writing and failing agreement, such time coincide with the weekend X and Y would otherwise be spending time with the father pursuant to order 5(b) herein;

for five days in the third term school holidays in 2013 on such days as agreed between the parties in writing and failing agreement, such time coincide with the weekend X and Y would otherwise be spending time with the father pursuant to order 5(b) herein;

for two separate periods of one week in the 2013/2014 and 2014/2015 long summer vacation as agreed between the parties in writing and failing agreement, the first and third weeks of the holidays;

for one week in each of the term holidays in 2014 as agreed between the parties and failing agreement, the week immediately following the time X and Y are spending with the father pursuant to order 5(b) herein;

from 3.30pm Christmas Eve to 3.30pm Christmas Day 2012 and 2014;

from 3.30pm Christmas Day to 3.30pm Boxing Day in 2013;

if X and Y are not otherwise spending time with the father on Father’s Day, from 10.00am Father’s Day to before school or 8.00am the following Monday;

on each of X, Y and the father’s birthday, for a period of two hours as agreed between the parties if the birthday falls on a school day and for a period of four hours as agreed between the parties if the birthday falls on the weekend; and

as otherwise agreed between the parties.

The father’s time with X and Y pursuant to order 5 be suspended as follows:

as to his time pursuant to order 5(b) herein, during the school holidays, and such time to resume as if the school holidays had not intervened;

from 3.30pm Christmas Day to 3.30pm Boxing Day in 2012 and 2014;

from 3.30pm Christmas Eve to 3.30pm Christmas Day in 2013;

on Mother’s Day from 10.00am; and

if X and Y are not otherwise with the mother on either of X, Y or the mother’s birthday, for two hours on a weekday as agreed between the parties and for four hours as agreed between the parties on a weekend.

Upon X and Y residing outside of Australia, X and Y shall spend time and communicate with the father as follows:

for one period each year when the mother shall travel to Australia during the United States of America’s summer holidays for at least half of the time the mother is in Australia, but for not more than three quarters of the time that the mother is in Australia and for the purposes of this order, the mother shall notify the father in writing of the date of her arrival and departure to and from Australia no less than 28 days prior to her arrival in Australia;

on any other occasion the mother travels to Australia for at least half the time the mother is in Australia and the mother shall notify the father in writing of her intended travel details to Australia as soon as practicable before such travel;

in the United States of America on any occasion the father travels to the United States of America, subject to the father providing the mother with 28 days written notice prior to his arrival in the United States of America and that such time be during X and Y’s United States of America’s school holidays; and

via Skype, telephone or other electronic communication no less than three times each week at such times as agreed between the parties and for the purposes of this order, both parties shall do all things necessary to ensure each has in place the necessary technology to enable Skype communication between X and Y and the father to occur.

Upon the mother commencing to reside in the United States, she shall ensure the father is advised at all times of her residential address, contact telephone number and a Skype address by which the father may communicate with X and Y.

The mother shall be responsible for the cost of X and Y’s travel to Australia and the father shall be responsible for the costs of travel within Australia for X and Y to spend time with the father other than travel to Melbourne or (omitted).

The mother shall:

keep the father advised at all times of her current residential address and mobile telephone number and, if living outside of Australia, a Skype address for X and Y;

advise the father immediately in the event that either of X or Y suffers any serious illness or injury;

authorise any medical practitioner upon whom X and Y may attend from time to time, to communicate with the father in respect to X or Y’s medical condition and/or requirements; and

authorise all schools at which X and Y may attend, from time to time to:

provide the father, at the expense of the father, copies of all school reports, school notices and school photographs in relation to X and Y;

communicate with the father, either by telephone, in writing or by personal attendance, in respect to X and Y’s progress at their school;

permit the father to attend all school functions to which parents are normally invited;

subject to any school policy in relation thereto.

Whilst the father is spending time with X and Y pursuant to these orders, the father shall:

keep the mother advised at all times of his current residential address and mobile telephone number;

advise the mother immediately in the event that either X or Y suffers serious illness or injury; and

authorise any medical practitioner upon whom X and Y may attend from time to time, to communicate with the mother in respect to X or Y’s medical condition and/or requirements.

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

REASONS FOR JUDGMENT

Introduction

This matter is before the Court as the mother wishes to relocate with the parties’ two children X born (omitted) 2007 (“X”) and Y born (omitted) 2010 (“Y”) from (omitted) to (omitted) in the United States of America.

The father opposes the relocation of X and Y to the United States of America and seeks that the children and the mother remain living within a 150 kilometre radius of (omitted).

Background

The mother was born on (omitted) 1981 and is 31 years of age. She is engaged in home duties and is currently living with her parents in (omitted). She has re-partnered and is engaged to Mr N, who is a (occupation omitted) employed by the United States of America’s (omitted). Mr N is resident in (omitted) in the United States of America.

The father was born on (omitted) 1985 and is 27 years of age. He is employed as a (occupation omitted). The father has re-partnered and lives with his partner Ms T.

The father has an older daughter A aged nine years (“A”) from a previous relationship. A’s mother is deceased and she lives with her maternal grandmother in (omitted). She spends time with the father during school holidays.

The parties commenced cohabitation in December 2005. They separated for a period of six months in 2008.

It is the mother’s evidence that the parties separated on a final basis in January 2010.

It is the father’s evidence that the parties separated in January 2011, when he was told by the mother on the day of X’s fourth birthday that their relationship was over and she was vacating the former matrimonial home.

It is the father’s evidence that at the time of separation, he and the mother were living in rental accommodation at (omitted) (“the (omitted) property”). They had been living at the (omitted) property for four years. It is his evidence that he vacated those premises shortly after separation.

In support of his evidence that separation took place in January 2011, the father provided the Court with correspondence from (omitted) Real Estate Agents dated 23 July 2012, which confirmed the parties rented the (omitted) property from 17 January 2007 to 1 March 2011.

In the mother’s affidavit sworn 29 March 2012 and filed 5 April 2012 she deposes in paragraph 5 that at the time the parties separated and were putting in place arrangements for X and Y to spend time with the father, the father was renting a room from a friend which restricted his capacity to have X and Y for more than one night each week.

If separation occurred in January 2010 as is the mother’s evidence, then shortly after separation when the parties were putting in place arrangements for X and Y to spend time with the father, the father would have been living in the (omitted) property and not renting a room from a friend.

The maternal grandmother gave evidence in support of the mother’s application. It is the maternal grandmother’s evidence that she believed the parties separated in 2010 as she assisted the mother organise her move from the former matrimonial home.

In cross-examination, it was the maternal grandmother’s evidence however that separation had occurred around the time of X’s fourth birthday as she remembers assisting the mother with packing boxes to move at that time. It is also the maternal grandmother’s evidence that the parties separated after Y was born.

I find that the parties separated in January 2011. Such a finding is supported by the maternal grandmother’s evidence that separation occurred around the time of X’s fourth birthday and after Y’s birth and by the mother’s own evidence that the father was renting a room from a friend shortly after separation and not living in the (omitted) property.

When the parties initially separated, the father spent time with X and Y several times each week at the mother’s residence.

Approximately three months after separation, the parties agreed between themselves that X and Y would spend time with the father from 9.00am Sunday to 9.00am Monday each week.

It is the mother’s evidence that despite this agreement, the father regularly cancels his time with X and Y. It is her evidence that on average X and Y only spend time with their father twice each month, and only about half of that time is overnight.

It is the father’s evidence that there have been occasions when he has been unable to spend time with X and Y because he has been required to work but that this would be on average no more than once per month.

Between November 2011 and March 2012, X and Y spent no time with the father. The mother alleges that this occurred after the police spoke to the father about him “harassing” her. The father denies any harassment of the mother and alleges that the mother refused to allow him to see the children after he refused to sign passport application forms for X and Y.

As neither party was cross-examined on this issue, I am unable to make any findings other than that there was a period from November 2011 to March 2012 when X and Y did not spend time with the father.

In March 2012, the parties attended mediation. They entered into a parenting plan which provided for X and Y to live with the mother and spend time with the father from 9.00am Sunday to 9.00am Monday each week.

The mother lived in the United States of America between the ages of 16 and 19 years. During this time, she and Mr N were boyfriend and girlfriend however this relationship ended when the mother returned to Australia.

The mother and Mr N kept in touch with each other and in early 2011 their romantic relationship was rekindled. In mid 2011, the relationship became more serious. Mr N visited (omitted) in August 2011 and again in February 2012. The mother visited Mr N in (omitted) in November 2011. The mother and Mr N speak via Skype or telephone daily.

Mr N is employed by the (omitted) of the United States of America (omitted) as a (occupation omitted). He lives in (omitted) in the United States of America where his family also live. He is in secure, well paid employment that offers him long term benefits including health insurance and a pension after 20 years of service.

The mother and Mr N are engaged and wish to marry as soon as possible. They wish to live with X and Y in (omitted).

The Evidence

The mother’s evidence

In support of her application, the mother relies on her affidavits filed 5 April 2012 and 6 July 2012. The mother also relies on the following affidavits:

Ms W filed 6 July 2012; and

Mr N filed 17 July 2012.

The mother

The mother is seeking to relocate with X and Y to (omitted) in the United States of America so that she can marry her fiancé Mr N, who is a (occupation omitted) employed by the (omitted) in the United States of America.

The mother proposes that the parties have equal shared parental responsibility for X and Y, that the children live with her and spend time with the father.

If permitted to relocate to the United States of America, the mother proposes that the children spend time with the father for one period in each year when the mother shall travel to Australia during the United States of America’s summer school holidays, for any other occasion the mother travels to Australia, in the United States of America on any occasion the father travels to the United States of America and at reasonable times via Skype, telephone and other electronic communication.

If the mother is not permitted to relocate to the United States of America, she proposes that X and Y live with her and that they spend time with the father in accordance with the existing parenting plan being from 9.00am Sunday to 9.00am Monday in each week.

It is the mother’s evidence that she has been the primary carer of X and Y since their birth and that she and the children have a very close and loving relationship.

It is the mother’s evidence that whilst the father loves X and Y, his involvement with them has been very limited.

It is the mother’s evidence that since separation, the father has only spent limited time with X and Y.

It is the mother’s evidence that on average the father only spends time with X and Y twice each month and for half of those times, he does not have the children overnight but returns them to her on a Sunday evening.

It is the mother’s evidence that the father has never sought additional time with X and Y even though she is happy for him to have the children for the whole of the weekend and for longer periods.

It is the mother’s evidence that she does not believe that X and Y have a meaningful relationship with the father because of the limited time they have spent with him arising from the father’s consistent cancellation of his time with X and Y.

It is the mother’s evidence that X in particular becomes very upset when the father cancels his time with the children, to the extent that she has made herself sick with that disappointment.

It is the mother’s evidence that the parties agreed in the parenting plan they entered into in March 2012 that if the father was unable to spend time with X and Y, the father would telephone X himself to explain why he was unable to see her. It is the mother’s evidence that the father has never rung X to explain why he cannot attend when he cancels his time with the children.

It is the mother’s evidence that given the limited time that the father currently spends with X and Y, they will be able to maintain their current relationship with him in the event that they were to move to the United States of America by spending time with their father when the mother and X and Y visit Australia each year and by electronic communication such as Skype and telephone.

In relation to the father’s older daughter A, it is the mother’s evidence that A rarely stayed with them during the parties’ relationship, but would rather stay with the paternal grandmother. It is the mother’s evidence that she does not believe that either X or Y have a relationship with A given the very limited time that they have spent with her.

It is the mother’s evidence that X and Y have formed a positive relationship with Mr N who they have met when he has visited them in Australia and through daily Skype and telephone communication.

If the Court did not allow X and Y to relocate to the United States of America, the mother told Ms S, the Family Report writer, that she would remain in Australia. In her viva voce evidence, the mother indicated that she is not sure what she will do if she is not allowed to relocate to the United States. It is her evidence that she will be devastated and is ambivalent as to whether she will remain in Australia if the children are unable to relocate.

It is the mother’s evidence that whilst she and Mr N have discussed the possibility of him moving to Australia in the event that the Court did not allow relocation, this is not really practical as Mr N’s qualifications will not be recognised in Australia and he will lose the benefits of the secure employment he has in the United States of America.

Ms W

Ms W is the maternal grandmother. She swore an affidavit in these proceedings on behalf of the mother, which was filed on 6 July 2012. She also gave viva voce evidence at the final hearing of this matter.

It is the maternal grandmother’s evidence that while she will miss her daughter and grandchildren if they were to relocate to the United States of America, she is supportive of the mother’s application as Mr N is a “fine, young man” and it is clear that he and her daughter see their future as being with each other.

It is the maternal grandmother’s evidence that when she and her husband were looking after X and Y while the mother was visiting Mr N in the United States of America for four weeks in November 2011, the father only spent time with X and Y on one occasion and that he cancelled his time with them on three occasions. It is the maternal grandmother’s evidence that the father did not seek any additional make-up time with X and Y during this period.

Mr N

Mr N is the mother’s fiancé. He is employed by the (omitted) and as a (occupation omitted) based in (omitted) in the United States of America. Mr N swore an affidavit in these proceedings on behalf of the mother filed on 17 July 2012. Mr N also gave viva voce evidence at the final hearing of this matter.

In his evidence, Mr N confirmed that he and the mother met in the 1990s whilst the mother was living in the United States of America. They had a boyfriend-girlfriend relationship that ended when she returned to Australia.

It is Mr N’s evidence that he and the mother kept in contact and that their relationship rekindled after her separation from the father.

It is Mr N’s evidence that he and the mother wish to marry as soon as possible.

Mr N describes having a good relationship with X and Y, having met them when he has visited the mother in Australia as well as speaking to them on a daily basis via Skype or telephone.

It is Mr N’s evidence that he has recently transferred his employment to (omitted) where there are highly accredited schools and a safe and family orientated community. Mr N’s parents, sister and brother also live in Oregon.

It is Mr N’s evidence that if the Court required X and Y to remain living in Australia, he will seriously consider moving to Australia. However, it is his evidence that his employment with the United States (omitted) is not easily transferable to Australia. Mr N gave evidence that he has made enquiries about employment opportunities in Australia and whether there are similar employment opportunities in the (omitted) region. It is his evidence that the most likely place that he could obtain employment utilising his current qualifications would be in Queensland and that he understands he would have to be an Australian citizen in order to be employed within the Commonwealth system.

It is the evidence of Mr N that he earns approximately $80,000.00 per annum in his current employment and that his employer provides excellent health insurance that would cover the mother, X and Y when he and the mother marry. His current employment also provides a life pension and continued health coverage upon him completing a further 13 years of employment with that service. He indicated that he is most reluctant to lose those benefits.

Mr N impressed as a decent, hardworking young man who is genuinely committed to making a life with the mother, X and Y.

The father’s evidence

The father

The father relied on his affidavit filed 14 June 2012.

As set out previously in this judgment, the father opposes the mother’s application to relocate to the United States of America with X and Y and seeks orders that she be restrained from living with X and Y any further than 150 kilometres from (omitted).

In the father’s response filed in these proceedings, he indicated that he was seeking orders in the terms of the parenting plan entered into by the parties on March 2012. However, in his viva voce evidence, the father indicated that he would like to be able to spend the entire weekend with X and Y as well as holiday time and special occasions.

It is the father’s evidence that he has a close and loving relationship with X and Y.

It is the father’s evidence that there have been occasions where he has had to forgo his time with X and Y on the weekend as a result of his work commitments. It is his evidence that his employer requires him to work at least one weekend in each month and there have been occasions when his employer has given him very short notice of the requirement that he work.

It is the father’s evidence that he has on occasion returned X and Y to their mother on Sunday night rather than Monday morning but that this has only been on the rare occasion and only when he has not been in a position to get X to school the next morning.

The father refutes the mother’s allegations that he has only seen X and Y on average twice each month since separation. It is his evidence that it is, at most, on average one weekend per month that he is unable to see the children.

It is the father’s evidence that the mother has never offered any additional time with X and Y other than the Sunday morning to Monday morning. It is his evidence that the mother dictates the time he is able to spend with the children.

It is the father’s evidence that his eldest daughter A spends time with him during each of the school holidays. It is the father’s evidence that during the parties’ relationship, the mother did not welcome A into their home and accordingly A would stay with the paternal grandmother and spend time with the father away from the then family home.

It is the father’s evidence that when A is spending time with him during school holiday periods, X and Y spend time with her on the Sunday that they are with him.

It is the father’s evidence that his grandmother and aunt live in the (omitted) region and that X and Y are able to spend time with them whilst they are in his care.

It is the father’s evidence that until recently, his mother had been living with he and his now partner Ms T. The paternal grandmother has recently moved to (omitted) and it is the father’s evidence that she regularly visits (omitted) to spend time with him, X and Y.

It is the father’s evidence that he believes that X and Y are too young to be relocated to the United States of America as their relationship with him would greatly suffer because of the distance involved.

It is the father’s evidence that he is also concerned about the capacity of the mother to afford regular travel to Australia to enable him to spend time with the children. He strongly doubts that the mother and the children will travel to Australia annually.

It is the father’s evidence that he does not have the financial resources that would enable him to regularly travel to the United States of America to spend time with X and Y if there were permitted to relocate.

It is the father’s evidence that he believes that the mother does not and will not support his relationship with X and Y and that if they were to relocate to the United States of America then the Court could have no confidence that she would encourage or support his role in their lives.

Ms S

Ms S is a Regulation 7 Family Consultant with the Federal Magistrates Court of Australia. Ms S prepared a Family Report in this matter dated 27 June 2012. Ms S also gave viva voce evidence at the final hearing of this matter.

In paragraph 50 of her Report, Ms S states as follows:

From my observations X and Y have warm and close relationships with Ms W and with Mr Pandor and they seem to be in the process of developing warm and accepting relationships with Ms T. Y would still be very much in the process of forming an attachment (developing a primary relationship with his primary carer, Ms W) to Ms W and forming a relationship with Mr Pandor. The first three years of a child’s life are critical years for this attachment (primary relationship) process but it does not stop after three years as their relationships still continue to develop.

Further in paragraph 50 of her Report, Ms S states as follows:

At this stage Y appears to be developing a secure and trusting relationship with Ms W and also with Mr Pandor. As children move through this process it is essential that they are not separated from their primary carer for too long a period at any one time, as they are unable to tolerate this without suffering serious effects.

In paragraph 51 of her Report, Ms S states as follows:

X is too young and immature to be able to form a view that is in her best interest. X would have no concept of what relocation to America would mean for her; especially in terms of her relationship with Mr Pandor as well as her relationships with her extended families. X would have no perception of the extent of her loss about having Mr Pandor and her extended families close by. It is my view, that maintaining relationships through communication is not the same as having face to face and physical contact on a regular basis and especially for young children. In my view, the physical contact with young children provides them with physical comfort and nurturing that they cannot receive from communication. Communication by Skype, phone or e-mail does assist to maintain a relationship but with young children they cannot understand why they are not having face to face time and especially a two year old child so regular communication while being an essential factor in the maintenance of a relationship may also continually remind the child of their loss.

In paragraph 56 of her Report, Ms S makes the following observations:

The issue of relocation is particularly vexing given that it is overseas and given the distance. If relocation is permitted then in my view this may pose some risk to the relationship that Y has so far developed with Mr Pandor given the age of Y and given that Y would only be able to spend face to face time with Mr Pandor once a year. It is my view that if relocation is permitted then X and Y would feel this loss and would grieve on realising that they would not be spending time with Mr Pandor. Neither X nor Y would understand the concept of waiting so long before they could see Mr Pandor. As mentioned above it is my view that initially X and Y may not only feel the loss but they may also have the feelings of loss resurface each time they communicate with Mr Pandor. Young children are unable to express their feelings of loss as they grieve and often these feelings are suppressed, particularly with a child of Y’s age and this can then have an impact on them through their lives particularly if they are faced with a trauma.

In paragraphs 58 and 59 of her Report, Ms S then expressed the following views:

58. It is my view that if relocation is not permitted then X and Y should spend time with Mr Pandor on alternate weekends from Saturday 10am to Monday at the commencement of school as well as some time during the week depending on Mr Pandor’s work times; from here on, times on the special days through the year including Christmas, Easter and birthdays as well as Father’s Day; when Y turns three on alternate weekends from Friday after school to the commencement of school Monday as well as some time through each week depending on Mr Pandor’s work times. Some school holiday times should also start with two days each school term and in the December/January 2012/2013 holidays in the alternate weeks three days then a week about in the December/January 2013/2014 holidays; from 2013 half of all school term holidays.

59. If relocation is permitted then X and Y should spend time with Mr Pandor at least once a year but more if possible, that is if financially possible; communication once a week by Skype, phone if financially possible or otherwise as much as is possible.

Under the heading ‘Recommendations’ in paragraph 60 to 64 of her Report, Ms S sets out her conclusions in relation to this matter as follows:

60. It is recommended that Ms W and Mr Pandor share parental responsibilities for X and Y.

61. It is recommended that X and Y live with Ms W.

62. If relocation is not permitted it is recommended that X and Y spend time with Mr Pandor as set out in paragraph fifty-eight.

63. If relocation is permitted then it is recommended that X and Y spend time and communicate with Mr Pandor as set out in paragraph fifty-nine.

64. It is recommended that Ms W and Mr Pandor attend a post separation parenting program at an accredited agency such as a Family Relationship Centre, Relationships Australia or Centacare.

When giving her viva voce evidence, it was put to Ms S that she had not expressed a strong view in her Report in relation to whether it would be in the best interests of X and Y if the mother was allowed to relocate with them to the United States of America. It was Ms S’s evidence that she had not done so because it was her understanding that there were some Federal Magistrates who preferred the report writer not to express their view in this regard. Ms S was asked what her view was in this matter. It was her evidence as follows:

This is a very vexing one. If it’s from the point of view of the children’s relationship with their father, then it would be my view that of course it wouldn’t be in their best interests to relocate, given their young ages. If it’s from the point of view of the mother and her future relationship and, I suppose, well-being, then unless Mr N was able to relocate to Australia, it’s a huge ask to not have her be able to, you know, live in a relationship with him so – and then how much that would effect her capacity to parent if her well-being wasn’t the priority.

It was put to Ms S that in their first three years, children are establishing and solidifying their relationships with their primary carer and the other important adult figures in their lives. Ms S agreed with that statement and confirmed that, in her expert opinion, the first three are the most critical years of a child’s life during which they establish those important relationships.

Ms S was then asked that, given the tension between the entitlement of children to a meaningful relationship with both parents and the obvious need for separated parents to get on with their lives and the impact on them of not being able to do to so, whether a possible way forward in this matter was to contemplate relocation but to delay it until such time as both X and Y had been afforded the opportunity to cement their relationship with their father. It was Ms S’s evidence as follows:

Yes, yes. Look, that would certainly be preferable in my view, certainly, yes. I think that would afford the two children that opportunity to at least get to know who their father is, cement that relationship much more. Look, X at five – if they relocate, she may, you know, remember her father, but without that ongoing, regular, consistent, at least, communication, you know, preferably by Skype, that may soon dwindle. Y, I would – you know, it’s – it’s doubtful that he would be able to hold on to those memories. Look, they may be somewhere very, very repressed there in the background, but it wouldn’t hold – I don’t believe it would hold enough – it would be cemented enough for Y to have that bond followed through. It wouldn’t be enough time for Y, so then any extra time would be precious time, I believe, for particularly Y and certainly for X as well.

Ms S was asked that if the Court was minded to allow relocation when the children were older, what would be a more developmentally appropriate age that would accommodate relocation and allow the children to maintain a relationship with their father. It was Ms S’s evidence as follows:

I would be looking at Y being – as much as I don’t like to say it – at least about five years of age.

Ms S was then questioned about the efficacy of electronic communication in assisting children maintain a meaningful relationship with the ‘absent’ parent, particularly for children as young as X and Y. It is Ms S’s evidence as follows:

With X it may work – it may. Y will follow her lead but then it would very much depend on the encouragement and assistance, support, the facilitation given by Ms W. You know, that’s a major part of it too. Children can have long-distance relationships, and they do, with many members of families and sometimes aunties, uncles, grandparents, whatever, but it – a major part of it is how much that’s facilitated and encouraged.

Ms S was questioned as to whether she had formed a view as to the mother’s capacity to promote the children’s relationships with their father. It is Ms S’s evidence as follows:

I had some concerns about that, given the accounts given to me. I suppose I wasn’t totally convinced that Ms W would be promoting their relationships with their father.

It was put to Ms S that the tenor of the mother’s evidence was that she saw little value in X and Y having a relationship with their father. It is Ms S’s evidence that:

Yes, that’s consistent with – certainly consistent with my assessment, given the accounts, yes.

It was then put to Ms S that the mother does not believe that the father is invested in pursuing a relationship with the children given his consistent cancellation of the already limited time that he has with them. Ms S was asked whether she had formed a view in relation to the father’s relationship with X and Y. Ms S replied as follows:

Yes, I did. In my observations it seemed to – he seemed to demonstrate, and the way the children were with him seemed to indicate that they had a very close relationship. They were in the process of developing very close, secure, trusting relationships with him. So, you know, more from the point of view of my observations of how the children were with him certainly indicated to me that they were well on the way to having very worthwhile and trusting relationships with him.

The legal approach

As noted previously in this judgment, this case relates to the mother’s wish to be able to relocate to (omitted) in the United States of America from (omitted) with the parties’ children X and Y.

Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is by following the legislative framework prescribed under the Act to determine what order is in a child’s best interests.

In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:

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 v 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.

In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:

A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.

A relocation case falls to be determined like any other parenting case.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):

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).

Section 60CA of the Act provides that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Presumption of equal shared parental responsibility

In this matter, both parties propose that they have equal shared parental responsibility for X and Y.

Both parties report difficulties in communicating with each other and there being tension, acrimony and argument at changeover from time to time.

The father complains that the mother did not consult him in relation to the school that X commenced at this year, whilst the mother makes complaint that the father has no interest in these issues.

In her Family Report at paragraph 19, Ms S notes as follows:

There is a high level of conflict between Ms W and Mr Pandor and this has been exacerbated by Ms W’s request to relocate. They are unable to communicate effectively about X and Y.

However, in paragraph 54 of her Report, Ms S expresses the following view:

It is my view that Ms W and Mr Pandor should share the parental responsibilities for X and Y. In sharing these responsibilities both parents should be making joint decisions including educational, health, religion, sport and any other major decisions that need to be made. If Ms W and Mr Pandor are unable to negotiate and discuss such issues then they should attend mediation. If relocation is permitted then Ms W would need to ensure that Mr Pandor is included and informed about such issues. Under these circumstances it may be that Ms W and Mr Pandor would need to communicate about X and Y by e-mail.

Despite their current communication difficulties, which have been greatly exacerbated by the mother’s wish to relocate, I am satisfied that it is in X and Y’s best interests that both their parents jointly make the decisions for their future wellbeing.

Accordingly, orders will be made that the parents have equal shared parental responsibility for X and Y.

Consideration of equal time or substantial and significant time

Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. Section 65DAA(1) provides as follows:

1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Sections 65DAA(2) and (3) of the Act provide as follows:

2.If:

(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

the court must:

(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a)the time the child spends with the parent includes both:

(i)days that fall on weekends and holidays; and

(ii)days that do not fall on weekends or holidays; and

(b)the time the child spends with the parent allows the parent to be involved in:

(i)the child’s daily routine; and

(ii)occasions and events that are of particular significance to the child; and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

Section 65DAA(5) of the Act provides as follows:

5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.

In MRR v GR (supra), the High Court held at paragraph 9:

Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

The High Court then held at paragraph 13:

Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

The High Court further held at paragraph 15:

Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in (omitted), Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

Thus, the Court must consider whether it is in the child’s best interests and also whether it is reasonably practicable for the child to spend equal or significant and substantial time with their parents.

Neither party is seeking orders that X and Y spend equal time with both of their parents. Given their very young ages and, in particular Y’s young age, such an order would not be appropriate given the importance of him developing the primary attachment with his mother who is his primary carer.

In the event that the mother is not permitted to relocate to the United States of America with X and Y, the father’s proposal would see him spending significant and substantial time with the children.

In the event that a decision is made that it is in the best interests of the children to relocate, then it will not be practicable for X and Y to spend significant and substantial time with the father given the distance between Australia and the United States of America.

Best interests of the child

When determining what is in the child’s best interests, the Court must consider the matters set out in sections 60CC(2) and (3) of the Act. Each of the matters contained in these subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties’ proposals, or such other arrangement as the Court determines, given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U v U (2002) 211 CLR 238), is in the child’s best interests.

Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

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

X and Y have a close, loving and meaningful relationship with their mother who has been their primary carer since birth.

The mother challenges the quality of the relationship between X and Y and their father. She cites the father’s consistent cancellation of the limited time that he spends with the children and his failure to seek any additional or make-up time over and above that very limited time as proof of their limited relationship.

It is the father’s evidence that he has a close and loving relationship with X and Y.

The father argues that he spends regular time with X and Y and that it is his work commitments that prevent him from seeing the children on every occasion that they have been made available to him. It is the father’s evidence that he has not sought additional time from the mother because of his belief that she would refuse same and the arguments and conflict that would ensue if he were to do so.

Ms S in her Report expresses the view that X and Y enjoy spending time with their father, that she observed a warm and close relationship between the children and their father and was of the view that the children were in the process of developing a very close, secure and trusting relationship with him.

The meaning of ‘meaningful relationship’ was considered by the Full Court in the decision of McCall & Clark [2009] FamCAFC 92. Their Honours noted that the Act contains no definition of ‘meaningful relationship’ and reviewed the decisions where the meaning of that phrase in the context of section 60CC(2)(a) had been considered. Their Honours held at paragraph 118 as follows:

It appears to us that there are three possible interpretations of s 60CC(2)(a):

(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

Their Honours then held at paragraph 119:

We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in Section 60cc(2)(a) is ‘the prospective approach’, that is once the court is satisfied that it is in the child’s best interest to have a meaningful relationship with both their parents, then orders be framed in such a way that the children are given the best possible opportunity to have that meaningful relationship with both their parents.

Therefore when considering what orders to make, the Court must consider what orders will best promote a child having a meaningful relationship into the future if it determines that such a relationship is in the child’s best interests.

Whilst the mother is of the view that X and Y do not have a meaningful relationship with their father, I find to the contrary.

Justice Brown in Mazorski & Albright (2007) 37 Fam LR 518 considered the definition of ‘meaningful’ and having considered the definitions as set out in recognised dictionaries, held at paragraph 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.

There is no doubt that the relationship that X and Y have with their father is important, significant and valuable to them.

Ms S in her evidence raises real concerns about the capacity for X and Y to maintain that meaningful relationship with their father in the event they were to relocate to the United States of America particularly at this time given their very young ages and stages of development.

It is Ms S’s evidence that Y in particular, being only two years of age, would have real difficulty in maintaining a relationship with his father absent a regular and consistent physical interaction with him. It is her clear evidence that until Y achieves primary school age, his relationship with his father is continuing to develop and consolidate and that it will be extremely difficult for that process to occur via electronic communication even with the willing support of the mother.

It is clear from the tenor of the mother’s evidence that she does not acknowledge the importance of the father to X and Y and places very little value on their relationship with him. In these circumstances, the Court must have real concerns about her ability and willingness to facilitate a meaningful relationship between X and Y and their father if permitted to relocate. These concerns are echoed by Ms S.

Section 60CC(2)(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

I am satisfied that X and Y are not at risk of physical or psychological harm in the care of either of their parents or that they would be exposed to neglect abuse or family violence.

Section 60CC(3)

Section 60CC(3) of the Act sets out the additional considerations that the Court must look at when determining what is in the child’s best interest. Each of the matters set out under that section will be considered in turn where applicable in this matter.

Section 60CC(3)(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Given the very young ages of X and Y, this is not a relevant factor.

Section 60CC(3)(b)the nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child)

As previously set out in this judgment, I am satisfied that X and Y have a close and loving relationship with both of their parents.

The mother is X and Y’s primary carer and it is with her that they have their primary attachment and she is the primary source of nurture and comfort to them.

X and Y also have a loving relationship with their father and he too is a significant attachment figure to them.

The father’s partner, Ms T, is someone with whom X and Y are forming a relationship and I am satisfied that it is a positive and happy one.

I am also satisfied that the paternal grandmother and the extended paternal family are all part of X and Y’s lives.

As noted earlier in this judgment, the father has a daughter, A, aged nine years of age, from a previous relationship. A lives with her maternal grandmother and spends time with the father during school holidays. While A stayed with her paternal grandmother rather than the father during the parties’ relationship, it is unclear from the father’s evidence whether A now stays with him when she spends time with him during the school holidays. The Court notes that in the most recent school holidays, A visited the father but also spent a week with the paternal grandmother in Queensland.

It would appear that X and Y currently have limited interaction with their older half-sister, although the father is keen for this relationship to be afforded an opportunity to develop and consolidate.

X and Y are close to their maternal grandparents, particularly given that they have been living in the maternal grandparents’ home for the last six months.

X and Y’s relationship with Mr N is developing and they spoke positively of him with Ms S.

Section 60CC(3)(c)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

In considering this factor, the court must also take into account sub-section 60CC(4) and (4A) which provide as follows:

4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The father expresses real concern about the willingness of the mother to facilitate his relationship with X and Y.

It is the father’s evidence that the mother has dictated the time that X and Y can spend with him and that between November 2011 and March 2012, she refused to allow him to spend time with them because of a dispute in relation to the children’s passports.

It is the mother’s evidence that the father has failed to properly pursue his relationship with X and Y, seeking only very limited time with them and then cancelling at least half of that time on a regular basis. She also argues that, since separation, the father has never sought any additional time with X and Y and when she has offered for the father to care for the children when she has been away on holiday, he has declined to take up the offer of that care on the basis that he was working and was not prepared to put in place alternate childcare arrangements.

The mother was quite frank when giving her evidence of her belief as to the nature of the father’s relationship with X and Y. She does not believe that they have a meaningful relationship with their father because of his limited involvement in their lives.

She is dismissive of his efforts to be their father and is clearly of the view that given his lack of commitment to spending regular consistent time with X and Y, the father shows little interest in his children or in being an active part of their lives. In these circumstances, she has difficulty in accepting that the father has a major role to play in X and Y’s lives into the future.

Whilst there is no doubting the genuineness of the mother’s beliefs in this regard, the reality for X and Y is quite different. They love their father, have a close and positive relationship with him and enjoy spending time with he and his partner Ms T. This is an important, meaningful and valuable relationship to them.

The tenor of the mother’s evidence has to give the Court real concerns as to the mother’s insight into the importance of X and Y’s relationship with their father and her capacity to support, encourage and promote that relationship.

This does not mean however that the mother’s complaints as to the father’s commitment to X and Y are not without some merit. Whilst sympathetic to the father’s need to comply with the requirements of his employment so that he does not lose his job, the father seems to have happily given up his time with the children for things such as his car going to the mechanic, having to drive his mother to the airport or having some mild ailment. It appears that he finds it easier to return X and Y to the care of the mother rather than shouldering his parental responsibilities and juggling those responsibilities with the day-to-day demands of every day life.

Similarly, whilst the father argues that the mother will not allow him any additional time with X and Y, he has never pursued additional time with them through mediation or the court process and seems to have been content to have the relatively limited time with his children that he has had to date.

It is the mother’s evidence that the father stopped paying child support last year when the issue of relocation arose. It is the father’s evidence that the Child Support Agency advised him that he was in credit with child support payments and that he was not required to pay child support.

It is apparent from correspondence from the Child Support Agency that was tendered at the final hearing that the father has only recently contacted the Child Support Agency and acknowledged his responsibility to provide regular ongoing financial support for his children.

Section 60CC(3)(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

In the event that the mother is permitted to relocate with X and Y to (omitted) in the United States of America, there will be a significant impact on their relationship with the father.

Given that X and Y are very young, their capacity to maintain a meaningful relationship with their father would be severely impacted if they were to relocate given that at best X and Y will only be able to see him once per year and will otherwise have only electronic communication via Skype or telephone.

Relocation to the United States of America would also remove X and Y from their extended maternal and paternal families, as they will remain in Australia whilst X and Y are in the United States of America. X and Y will only be able to see them on their occasional visits to Australia and speak to them electronically. This will impact on the development of those relationships.

Section 60CC(3)(e)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

This factor is of real significance in this case. The cost of travel between the United States and Australia is expensive and would limit the capacity of the mother and X and Y to travel to Australia to one trip each year at best.

The father is of limited means and he does not have the capacity to travel to America with any regularity.

The father is concerned about the financial capacity of the mother to be able to travel to Australia without the support of Mr N and he questions whether there will be regular annual trips made by the mother to Australia to enable the children to spend time with him.

Section 60CC(3)(f)the capacity of:

(i)each of the child’s parents; and

(ii)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

I am satisfied that X and Y’s parents have provided for their emotional and intellectual needs to date.

In paragraph 53 of her Report, Ms S states as follows:

It is my view that both Ms W and Mr Pandor have the capacity to meet the intellectual and day to day emotional needs of X and Y and they are both responsible and caring parents.

Consideration has to be given however to the mother’s capacity to continue to provide for X and Y’s emotional and intellectual needs in the event that she is required to remain in (omitted) and is not allowed to relocate to commence her new life with Mr N.

When speaking to Ms S about the impact on her if she was not permitted to relocate, the mother told Ms S that she will be traumatised, will feel trapped and she felt that she could have a breakdown if she was not permitted to relocate. She told Ms S that she did not want to have a breakdown as it would not be good for X and Y.

In her oral evidence to the Court, the mother indicated that she will be devastated if she was unable to relocate to the United States of America where she wishes to marry Mr N and that she really does not know what she will do.

It is the mother’s evidence that Ms S suggested that she might benefit from some counselling in relation to assisting her at this time. It is the mother’s evidence that she has arranged counselling through her general practitioner, has attended upon her counsellor once and is intending to continue to attend upon that counsellor.

There is no independent psychiatric evidence provided on behalf of the mother in relation to the impact on her in the event that she is unable to relocate.

Section 60CC(3)(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The father is of (omitted) background. Both his parents are (omitted) born.

It is the father’s evidence that he would like X and Y to grow up knowing of their (omitted) heritage and for them to learn the (omitted) language and culture.

It is the father’s evidence that whilst he does not read (omitted), he speaks it fluently as do his mother and grandmother.

When asked in cross-examination to detail the steps that he has taken to date to expose X and Y to their (omitted) background, the father was unable to provide any details of overt steps taken by him in this regard other than to indicate that they knew some limited (omitted) words.

Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

This sub-section is not relevant.

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

I am satisfied that both parties in this matter are loving and caring parents.

As set out earlier in this judgment, the mother challenges the father’s commitment to the responsibilities of parenthood, citing his failure to spend time with the children on a regular basis in accordance with the agreement between them as well as his failure to pay child support for an extended period of time as proof of his lack of commitment to X and Y.

As noted previously in this judgment, the mother’s complaints are certainly not without some merit as there have been occasions when the father appears to have prioritised his needs over the need that X and Y have to spend regular time with him.

However, I am satisfied that the mother does not willingly embrace the importance of the children spending time with their father and has not always encouraged or facilitated that time.

The mother has been and is X and Y’s primary carer and has borne the bulk of the responsibility for their care, particularly since separation. I am satisfied that she has done so in a loving, caring and responsible way.

Section 60CC(3)(j)any family violence involving the child or a member of the child’s family

The mother made reference in her evidence to an incident that occurred between she and the father when he broke into her home shortly after separation whilst she was showering. She also raised concerns about ‘burn-outs’ outside her home which she believes were perpetrated by the father.

The father agrees that he did burst into the mother’s home shortly after separation but that she was not in the shower at that time and he only did so because the mother was not allowing him to see X and Y. He denies ever doing ‘burn-outs’ outside the mother’s home.

If these incidences occurred, they were relatively minor and I am satisfied took place in the period of volatility shortly after separation. Such incidents of this type, if they occurred, have not been perpetrated since that time.

Section 60CC(3)(k)any family violence order that applies to the child or a member of the child’s family, if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person

This sub-section is not relevant.

Section 60CC(3)(l)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

Were the mother not seeking to relocate to the United States of America, it is unlikely that these parties would have been involved in any litigation.

After separation the parties were able to reach agreement in relation to the living arrangements for X and Y and despite their communication difficulties, they appeared to be able to ensure that those arrangements stayed in place and have varied them as needed.

It is to be hoped that once the issue of relocation has been finalised by this Court, there will be no need for any further litigation between the parties.

Section 60CC(3)(m)any other fact or circumstance that the court thinks is relevant

It is Ms S’s evidence in this case X and Y’s young ages mean that developmentally they would have real difficulty in sustaining a relationship with their father if they were to relocate to the United States of America at this time.

It is Ms S’s unequivocal evidence that given X and Y’s very young ages, it would be preferable that they be able to cement their relationship with their father before any relocation takes place, as this would best enable them to sustain a meaningful relationship with him when relocation finally occurs.

It is Ms S’s clear evidence that any relocation before Y turns five would impinge on his ability to develop, consolidate and maintain a meaningful relationship with his father.

While X is a little older, it is Ms S’s evidence that she too would benefit from additional time to consolidate her relationship with her father and this would enable her to better maintain a long distance relationship with him once relocation occurs.

Conclusion

This matter relates to the mother’s application to be able to relocate with the parties’ children X, five years, and Y, two and a half years, from (omitted) to (omitted) in the United States of America to enable her to marry Mr N and commence her new life with him in that country.

Mr N is an America citizen with an excellent job with the (omitted) within the United States of America’s (omitted). Whilst open to the concept of moving to Australia in the event that the mother is not able to relocate, Mr N would have to make major sacrifices to do so including giving up secure employment with long-term benefits including a lifetime pension and healthcare.

It is the mother’s evidence that since separation the father has failed to properly participate in X and Y’s lives, regularly cancelling his weekend time with the children for either work or personal reasons. It is her evidence that, in these circumstances, the father’s current relationship with X and Y could be maintained by way of her proposed annual visits to Australia and by way of Skype and telephone communication.

It is the mother’s evidence that if she is not permitted to relocate and move on with her life with the man she wishes to marry and settle down with, she will be devastated. It is her evidence that she is not sure how she will respond but is concerned about the impact on her emotional wellbeing and her ability to care for her children.

The father adamantly opposes the mother’s application to relocate with X and Y. He argues that if they were to relocate, he will effectively be removed from X and Y’s lives and will be denied the opportunity to watch them grow up and be actively involved in their lives. It is the father’s evidence that he does not believe that the mother will support his relationship with X and Y if permitted to relocate as she does not recognise his importance to X and Y.

The father expresses a genuine concern that, if permitted to relocate, the mother will not travel regularly to Australia with X and Y so that they will be able to spend time with him. He also questions her commitment to ensuring X and Y would have regular electronic communication with him once they are in the United States of America.

It is the evidence of Ms S, the report writer, that given X and Y’s young ages, any relocation to the United States of America with their mother at this time would effectively result in them being unable to maintain a meaningful relationship with their father. It is her evidence that it is not until the age of approximately five years that children have the requisite emotional maturity to maintain a long distance relationship with an absent parent.

It is also Ms S’s evidence that in order to be able to maintain a long distance relationship, both parents must be committed to that process and ensure that they do all things necessary to enable and support that relationship continuing.

The evidence of the mother was such that there have to be real concerns about her commitment to enabling X and Y to maintain a relationship with their father.

It is the mother’s evidence that she does not believe that X and Y currently have a meaningful relationship with their father. Further, it is the mother’s evidence that given the father’s lack of commitment to parenthood, there is little benefit to X and Y in having a relationship with the father.

Ms S gave evidence that X and Y do have a meaningful relationship with the father and she expresses concerns in relation to the mother’s willingness to support X and Y continuing that relationship with the father.

After separation the parties reached agreement between themselves for X and Y to live with their mother and for them to spend time with their father from 9.00am Sunday to 9.00am Monday in each week. It is the mother’s evidence that the father fails to spend time with X and Y on average at least twice in each month and further that he only has X and Y in his care overnight on average once each month.

The father denies that he fails to spend time with X and Y as often as is claimed by the mother but concedes that he is required to work at least one weekend in each month and on such occasions he is unable to spend time with X and Y.

It is the mother’s evidence that the father has never sought to have additional time with X and Y other than for one night in each week and that when he has been offered additional time by her, he has not taken up those opportunities claiming work or other commitments.

The father argues that whilst he wishes to have additional time with X and Y, he has not pursued additional time. It is the father’s evidence that this is because the mother has always dictated the amount of time he can spend with X and Y and the arguments that would ensue between himself and the mother if he sought additional time would not be in X and Y’s best interests.

Whilst concerned about the mother’s willingness to facilitate and encourage the relationship between X, Y and their father, I am also satisfied that the father has not always prioritised his time with X and Y over his other commitments. Whilst accepting that the father needs to work on weekends once a month in order to maintain his employment, I am also satisfied that he has been quite happy to forego time with X and Y when day-to-day life and social engagements conflicted with that time.

The tension between a parent’s need to move on in their lives and a child’s right to a meaningful relationship with both parents is at the heart of the difficulty that the Court faces in determining relocation cases. This tension is even greater where the proposal for relocation is out of Australia as the capacity for face-to-face interaction between children and the parent not relocating is measurably reduced. This is particularly so in circumstances where neither of the parties are well placed financially.

At the end of the day however the decision to be made must be based on the best interests of the children having considered all the factors set out under the Act.

Having considered all the evidence, I am of the view that relocation at this time for X and Y is not in their best interests.

The evidence of Ms S that X and Y would be unable to consolidate and maintain their existing meaningful relationship with their father in the event of relocation at this time is compelling. This is particularly so in this matter as the Court cannot be satisfied that the mother will do everything in her power to try and assist the maintenance of that relationship as it is apparent from her evidence that she does not see that relationship as being important for X and Y.

It is Ms S’s evidence that if relocation were to be delayed until such time as Y attains the age of five, then his and X’s relationship with their father would be sufficiently established so that their relationship with the father could be maintained if they were to relocate at that time.

Whilst there is no doubt that the mother will be extremely upset and very resentful of having to delay her departure to the United States of America and therefore put on hold the plans that she and Mr N have for a life together in that country for a further two and a half years, I am of the view that it is in X and Y’s best interests that orders be made that restrict relocation until such time as Y is five years of age.

Accordingly, orders will be made that will restrain the mother from relocating until Y turns five.

I am also satisfied that until such time as relocation occurs, orders should be made for X and Y to spend time with their father in accordance with the recommendations made by Ms S in her Family Report.

Those recommendations are that X and Y spend alternate weekends with their father, initially from 10.00am Saturday to before school Monday, time during the week depending on the father’s work commitments and for special days including Christmas, Easter, birthdays and Father’s Day. Ms S also recommends that when Y turns three, alternate weekend time should be from after school Friday to before school Monday and that holiday time should also start and be gradually built up so that by the 2013/2014 long summer vacation, X and Y are spending holiday time with their father on a week-about basis and half of the term school holidays.

Such an arrangement, particularly alternate weekend time, will ensure that the father can meet his employment commitments to work one weekend in each month without the necessity to cancel his time with X and Y. Such an arrangement will ensure that the father is not causing X and Y disappointment and stress by cancelling his time with them.

As the decision to delay the mother’s capacity to relocate is predicated entirely on affording X and Y the opportunity to consolidate and develop their meaningful relationship with their father, it is absolutely imperative that the father ensures that he takes advantage of all the time that these orders provide him with his children. If he was to consistently fail to take advantage of that time, the mother would be properly entitled to return to this Court and seek orders that she be permitted to relocate at an earlier time than the orders currently allow.

Once X and Y relocate with their mother to the United States of America, it will be vitally important that the mother commit to return to Australia annually and that she ensures that X and Y are afforded the opportunity for telephone and Skype communication with the same regularity that she has ensured that they have been communicating with Mr N while she has been required to remain residing in Australia.

It is hoped that if the father spends as much time as possible with X and Y prior to that relocation, the mother will be convinced of the father’s commitment to his children and accept that their relationship with their father is in X and Y’s best interests and support it fully.

The decision of this Court is no doubt going to disappoint both parties and it is going to be vitally important for X and Y that they work through that disappointment and embrace the importance of improving their communications as X and Y’s parents so that they are able to properly fulfil their obligations of shared parental responsibility and work together in making the important decisions for X and Y now and into the future.

I certify that the precedingtwo hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment ofBender FM

Date: 3 October 2012


DISCLAIMER - This online copy is not an official version of the decision. Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision.