Father Opposes Mother's Application to Relocate

Yarrow & Yarrow [2021] FedCFamC2F 651 (24 December 2021)

The mother seeks to relocate to Country D with the children.  The father, on the other hand opposes relocation and seeks that children live in Australia.  There were conflicting positions by the mother about relocating to Country D if children were not permitted to do so.  The Court, in resolving this dispute, considered what would be in the children's best interests.  

Facts:

The parties commenced cohabitation in City C, Country D in 2007 and married in Country K in 2008.  They predominantly resided in City C until 2017, at which time they spent about 12 months in Country K before moving with the children to Tasmania, Australia.  The father moved out of the family home in 2020.  The father commenced proceedings by way of an Initiating Application filed in the Federal Circuit Court of Australia (as it was then) on 5 March 2020 seeking final and urgent interim orders.

Interim orders were made by her Honour Judge Baker on 29 April 2020 that the parties have equal shared parental responsibility for the children; that the children live with the mother and spend time with the father for five nights a fortnight; neither party remove the children from the State of Tasmania; and the Registry Manager of the City E Registry of the Court hold the children’s passports.  The Application by the father initially sought sole parental responsibility along with live and spend time with orders for the children based on three alternative scenarios: the first premised on the children staying in City E and living between him and the mother; the second premised on the children relocating with the mother to live inCountry D; and the third premised on the mother relocating without the children to Country D.  The father had adopted a position consistent with that of the ICL concerning parental responsibility that the parties should have equal shared parental responsibility except in relation to education and health decisions.  

While the mother seeks an order to relocate with the children to Country D, the mother's replies while questioned by the counsel for the father imply that the mother would not necessarily relocate to City C if the Court orders that the children live in Australia.  The mother failed to make submissions when invited on a number of occasions about what live with and spend time with orders she sought for herself and the children in Tasmania, if the Court concluded that the children were not permitted to live with her in Country D.  In her Case Outline filed 6 September 2021, she also proposes orders according to three alternate scenarios. 

Scenario A and B both seek orders that the children live with the mother in City C and alternatively orders for the father to spend time with the children based on whether he too relocates to City C or remains in Australia.  Scenario C is premised on the alternative that the children are not permitted to live with the mother in City C, in which event she seeks orders that the children live with the father in City E and live with the mother during the Tasmanian school holidays, without specifying where.  The mother contends that she has been the children’s primary carer and has a special and unique bond with them; the father has perpetrated family violence against her, which has been observed by the children; the father had not been engaged as a parent in caring for the children in a meaningful way until separation; the father has abused alcohol and does not present as a good role model for the children; she feels alienated and has no supports, family or friends in City E or Australia and could provide for the children better financially, physically and emotionally in Country D; if the children live in City E, they will not have the opportunity to experience and promote their Nationality K culture and heritage; and she and the children have been discriminated against on the basis of race and that there is a lack of acceptance of cultural diversity in City E.

The ICL opposed an order that the children relocate to Country D and submitted that the children should live with the father in City E.  However, she also submitted that the Court should make orders about the children spending time with the mother premised on three alternatives: the mother moving to Country D, the mother remaining in City E, and the mother living in another Australian city within three hours travel of City E.  The father claimed in his closing submissions that the total value of the father and mother’s Country D superannuation was $260,411 while the mother’s figure is $286,209.   

Issues:

I. Whether or not it is in the best interests of the children to relocate to Country D with the mother to live.

II. Whether or not if the children remain living in Tasmania, it is in their best interests to live primarily in the father’s care.

III. Whether or not it is in the children’s best interests that their parents have equal shared parental responsibility for them

Applicable law:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 8.04 - pursuant to which it was held that the letters attached to the mother's case outline do not constitute admissible evidence as the authors have not made affidavits.
Family Law Act 1975 (Cth), s 60CC - requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence.

A & A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035 - where it is established that the Court’s over-riding task is to make parenting orders about residency and parental responsibility that are consistent with the best interests of the children.
Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 - provides that the assessment required also involves consideration of the many considerations in section 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.
B and B: Family Law Reform Act 1995 (1997) FLC 92-755 - where it is noted that relocation cases are not some separate category within the Family Law Act, to be determined by their own principles and rules.

Dieter & Dieter [2011] FamCAFC 82 - provides that the evaluation of risk of harm required by subparagraphs (a) and (b) of section 60CC(2) is a challenging one to be undertaken on the basis of findings of fact about the nature and degree of risk of harm to the child and the likelihood of it eventuating. 
In the Marriage of Garrett [1983] FamCA 55; (1984) FLC 91-539 - provides that the assessment of contributions and other relevant factors addressed in section 79 of the Act is a matter of judgment, not a mathematical exercise. 
Mayne & Mayne (No.2) [2012] FamCAFC 90; [2012] FLC 93-510 - where the judges of the court took alternate approaches about what allowance or adjustment is to be made if findings warrant it.
McKinnon & McKinnon [2009] FamCA 921 - relied upon in holding that there is no suggestion that the Country D superannuation interests are in a “pension payment phase”, which may justify treating the superannuation interests in a particular way.
MRR & GR [2010] HCA 4 - the High Court provided guidance in relation to how the provisions in section 65DAA are to be applied and I have had regard to that authority. 
Slater & Light [2011] FamCAFC 1 - provides that the assessment required also involves consideration of the many considerations in section 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.
Stanford and Stanford [2012] HCA 52 - relied upon in holding that the parties were in a relationship from 2007 until they separated in 2020. 
Star & Duggan [2009] FamCAFC 115 - where their Honours Boland, Thackray & Watts JJ outlined a ‘logical approach’ in addressing the relevant legislative provisions, being to:

Analysis:

Both children have a close, loving relationship with each parent.   The parties frequently argued and the arguments escalated in intensity as the relationship broke down and then ended.  The father's personality and style of parenting is more relaxed, and he generally provides reasonable and satisfactory care for the children.  The mother is particular, authoritative, a stickler to rules and cautious or risk averse in personality which influences her approach to parenting.  She provides well for the children’s physical needs and is particularly alert to risk, she is highly protective of the children.

There has been a high degree of conflict between the mother and the children’s school in respect of a range of and many issues, and it is unnecessary to individually specify them all.  The mother gave evidence about the loss of the parties’ stillborn child Y and the impact of that loss on her view of the need to protect her children.  This demonstrated a visceral attitude, which is to a degree quite understandable but requires attention to avoid the potential detriment from an over-protective or inflexible approach.  There is likely to be benefit for the children if she engages in psychological therapy.

The mother says she encourages the children’s relationship with the father.  However, there does not appear to be specific evidence from the mother about how the meaningful relationship with the father can be maintained and promoted, should the children live with her in Country D.  Instead there is mere assertion by the mother that she will ensure there is frequent contact and that she will be flexible, without detailing what that means and how it will be achieved.  Logically, if the parties reside in different countries separated by the long distance between Country D and City E, their capacity to maintain or promote a meaningful relationship for themselves or the other parent, depending on where the children live, will be markedly impaired.

There is no evidence that the father has physically harmed the children, but the father has perpetrated family violence against the mother, at its least, being the episode in City C in 2016, when the father admits he grabbed the mother by the chin/jaw.  To the extent that the children may have witnessed the episode in 2016, they were very young and it is unlikely that they have any particular memory of it which may lay a foundation for emotional harm.   However, the child she was holding could easily have been harmed, and to that extent there was a real and material risk of harm to that child, aside from the effect on the mother.  Still, evidence by the school staff attest that the father's less rigorous, non-directive parenting approach is more settling for the children.

The mother brought in the H Road property, which she owned subject to a mortgage, but had contributed the deposit of £17,325 and net sale proceeds of about £34,200 from a flat she previously owned and had sold in 2005.  The mother does not have employment and will have limited earnings for an indefinite period in the future until she secures work, regardless of whether she remains in Tasmania or relocates to Country D.  This is a case involving a relatively long marriage and the parties have both earnestly contributed, dependent on their stages in life. Additionally, the mother has made some non-financial contributions over and above those of the father. 

Conclusion:

All prior parenting orders in relation to the children W (born in 2013) and X (born in 2016) are discharged.  Subject to order 3, the father and the mother have equal shared parental responsibility for the children.  The father has sole parental responsibility for decisions relating to the children’s primary school education, attendance at B Primary School and extra-curriculum activities undertaken in connection with the school.  The father shall inform the mother of all major long-term decisions and significant issues relating to the children’s primary schooling and extra-curriculum activities undertaken in connection with the school and provide the Mother with advance notice of any changes, as soon as practicable and no later than within 3 days of the change occurring.  Until the mother relocates to City C or if she does not relocate, the children are to spend school terms on a rotation of 8 nights in the mother’s care and 6 nights in the father’s care, commencing from and including 26 December 2021.  Half of each term school holiday, the precise arrangements for which are to be agreed between the parties in writing and in default, the mother will have the children for the first week of the holidays and the father for the second week.  Within 28 days the parties do all things necessary to cause the sum of $10,000 to be paid from the father’s Bank E Account to a joint account with the Commonwealth Bank of Australia in City E with both parties as signatories, which sum is to be held in trust for the benefit of the children.  The property known as and situate at F Street, City E in Tasmania, being all that property comprised in Certificate of Title Volume xxxx Folio xx (“the City E Property”), is to be sold forthwith and for that purpose the parties are to each do all which is necessary to effect the sale.