Father Opposes Mother's desire to Relocate with Children
Barton & Haselwood [2021] FCCA 1770 (3 August 2021)
The mother seeks to relocate to City B, Queensland with the children to be with her partner who she is in an open relationship with. The father opposes the relocation. The Court, in deciding whether or not to grant a relocation order, relied upon the evidence of the family consultant and the clear views expressed by children against relocation.
Facts:
The Applicant Mother wishes to relocate to City B in far north Queensland to be with her “primary partner”, Mr C. The Father opposes the relocation. The Mother and Mr C contend that they are in an open relationship. While they profess to be in a committed relationship with each other, they both engage in casual, regular sexual relationships with other persons outside their commitment to each other. In the Mother's Affidavit filed on 8th June 2020, the Mother confirmed that if the children “definitely did not want to go” to City B, she would not pursue her Application to relocate with them.
Both Counsels confirmed that the views of the children recorded in the first of the two Family Reports were uniformly against the relocation. However, the Mother asserts that the children’s views (which she said were confused on the issue) had been accurately recorded in the Family Report. Early in her oral evidence, the Mother confirmed that she was aware that, since his move to City B, Mr C has had, and continues to have, a series of sexual relationships with a number of partners. Later in her evidence, the Mother accepted that, having been lied to by Mr C on at least two occasions, she had been the subject of a systematic program of deception, and that she had been “blind-sided” about a range of matters, by Mr C.
The Mother nonetheless maintains that Mr C, who acknowledged that he lied to her to be with another woman (and on more than one occasion), “enriched” her role as a Mother. The Mother claims that her wish to move to City B is in order to escape the domestic violence and controlling behaviour of the Father.
The Counsel for the mother submitted that there was a solicited plan to provide a letter either by Ms M or by Ms D herself to the mother in an attempt, it appears, to blackmail the mother into withdrawing her application on the basis of the humiliation and embarrassment that will be caused to her by the exposure of the mother's Facebook conversation with Ms M.
Issue:
Whether or not it would be in the best interests of the children to relocate with their mother.
Applicable law:
Family Law Act 1975 (Cth), ss 60CC(3)(a) – (m), 65DAA
AMS v AIF (1999) 199 CLR 160 - Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition".
B & B [2006] FamCA 1207 - provided that in most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration.
Blanding v Blanding [2016] FamCAFC 21; (2017) 55 Fam LR 218 - the Court said that the apportionment of weight or importance to evidence is a matter for the exercise of the trial judge’s discretion.
KB v TC [2005] FamCA 458; (2005) 33 Fam LR 471; (2005) FLC 93-224 - where the over-arching issue is to ensure that any parenting order is in the best interests of the child.
Cales & Cales [2010] FamCAFC 237; (2010) 251 FLR 454; (2010) 44 Fam LR 376 - Full Court authority which confirmed that the earlier decision of A and A[2000] FamCA 751; (2000) FLC 93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted.
Collu & Rinaldo [2010] FamCAFC 53 - endorsed Brown J’s remarks regarding the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) which refers to the concept of a meaningful relationship on a number of occasions.
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 - the High Court set out the foundations for (a) the operation of s.79 of the Evidence Act 1995 (Cth) regarding expert evidence, and (b) the two bases or foundations that need to be satisfied for such evidence to be received and relied upon by the Court.
Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 - provides that the relevant test in apprehended bias looks at the assessment made by a “fair minded and reasonably well informed observer who might conclude that the assessment/decision maker might not approach the issue with an open mind.”
F v F [2007] FMCAfam 831; (2008) 38 Fam LR 52 - set out a summary of relevant principles drawn from High Court and Full Court authorities in relation to relocation.
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 - their Honours said that on the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other hand, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record.
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 - observed that even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212; (2007) 36 Fam LR 422 - where it was held that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child.
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 - Gleeson CJ referred to an expert whose opinion was not based on specialised knowledge but on “a combination of speculation, inference, personal and second-hand views as to the credibility ...”
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - where not calling any witnesses may entitle the Court (in accordance with authority) to find or infer that such witnesses would not have assisted the Mother’s case.
M v S [2006] FamCA 1408; (2008) 37 Fam LR 32 - Dessau J made comments in relation to a long-distance and meaningful relationship and how it is inevitably different from a relationship where people live closer together with regular face-to-face contact.
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 - where the Court need only record without further discussion that “deceit” is a long-recognised tort. The basic features of “deceit” in this regard are “false representation” made by a person who knows it to be false, or without belief in its truth, or recklessly, careless whether it be true or false, and who intends that it should be acted upon to the detriment of the other.
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 - Heydon JA said that a prime duty of experts in giving opinion evidence[is]: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions.
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 - in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act.
McCall v Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483 - where the Full Court cited the comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S with approval.
Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375 - May & O’Reilly JJ agreed to the endorsement of Boland J of Brown J's comments.
Paskandy & Paskandy [1999] FamCA 1889; (1999) 154 FLR 437; (1999) FLC 92-878 - provided that transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact ... with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia.
Payne v Payne [2001] EWCA Civ 166; [2001] Fam 473; [2005] 2 WLR 1826 - where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children.
P & P [2005] FamCA 1032; (2005) FLC 93-239 - the legislative pathway and basal principles to be applied where a party is seeking to relocate are helpfully reviewed by your Honour in this case.
Sealey & Archer [2008] FamCAFC 142 - the Full Court (Bryant CJ, Finn and Thackray JJ) said that while it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied.
Sheldon & Weir (No.3) [2010] FamCA 1138 - provides for an abbreviated summary of relevant principles drawn from High Court and Full Court authorities in relation to relocation.
Sigley v Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 - the Full Court commented that the 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 is an incorrect assumption.
Simmons & Kingley [2014] FamCAFC 47; (2014) FLC 93-581 - the Court observed that numerous authorities of the Full Court of this court make it plain that the ultimate decision was for the trial judge and it was a matter for the trial judge’s discretion as to what weight was given to or what use was to be made of Dr L’s evidence in the context of all of the evidence to be considered.
Taylor & Barker [2007] Fam CA 1236; (2007) 214 FLR 433; (2008) 37 Fam LR 461 - a case which involves a proposal that there be a significant change in the place where a child lives.
U v U [2002] HCA 36; (2002) 211 CLR 238 - Gummow and Callinan JJ stated the perhaps obvious point that becoming a parent has implications for a person’s freedom to do as he or she wishes, including very often where he or she chooses to live. Being a parent necessarily imposes obligations and restrictions.
Wiley & Wiley [2008] FamCAFC 153 - where the Court observed that it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases.
Analysis:
The effect of the planned concealment of the nature and incidents of the mother and Mr C's “open relationship” is that it showed that they sought to put, and to protect, their personal interests above those of the children despite the same not being their primary intention. In the circumstances outlined, how the Mother could maintain that her role as a Mother was enriched by Mr C was entirely unclear if not lacking in certain respects, such as the importance of truth-telling and good judgment. The Mother’s apparent insouciance regarding Mr C’s practice for multiple other sexual relationships with other women while in a relationship with her casts significant doubt upon issues like the stability of their relationship.
The mother's insouciance regarding Mr C's practice for multiple other sexual relationships with other women is exhibited by exchanges between Mr C and other women. For instance, when Ms L saw pictures of the mother and Mr C on Facebook, she got angry with Mr C. The mother was aware of this and even tried to get an AVO against Ms L for sending screenshots of her conversations with the Mr C. There is a mysterious Facebook conversation between a lady called Ms M and the mother. Ms D also asserts
The Mother was challenged about the veracity of her claims, primarily advanced with the Family Consultant, about her wish to move to City B in effect to escape the domestic violence and controlling behaviour of the Father. She accepted that, apart from the Apprehended Violence Order she obtained in 2016, and an extension of it in 2018, there was no independent evidence of the claims she made against the Father in these respects.
Conclusion:
The Court ordered to refuse the Mother’s Amended Application, filed 25 March 2020, to relocate to City B with the children. The parties are to have equal shared parental responsibility for the children, X, Y, and Z. The current five nights per fortnight arrangement for the children to live with the Father shall continue. Both parties are to undertake a post-separation parenting course.
Within 14 days, the parties are to provide to the Court by email a Minute of the agreed Orders confirmed here, including all others that provide for regular telephone time for the non-resident parent, changeovers, and the like, birthdays and special occasions, as well as arrangements for X to be enrolled in high school in the ACT region.