Consideration of factors for relocation

Consideration of factors for relocation

Saunders & Egerton

ection 60CC considerations

S60CC(2)(a) – The benefit to the child of having a meaningful relationship with both parents

62. The evidence of both parents and supported by their witnesses and the Family Reporter is that X currently enjoys a close, bonded, successful and meaningful relationship with both her parents. X is just four years of age and the issue for the Court and as argued by the father is that the change in the nature of the relationship between X and her father as proposed by the mother’s anticipated relocation might damage that relationship?
63. The experts are almost unanimous in suggesting that her frequency of contact is crucial in both establishing and maintaining relationships with young children for their parents. That is, older children might more easily be able to endure longer gaps in direct contact whilst maintaining relationships than can younger children. There is also an issue as to whether the quality of a relationship of direct contact can be substituted or maintained by the use of social media such as telephone, email and Skype?
64. Significantly, however, and whilst this consideration is a ‘primary one’ it is not itself determinative of the dispute as the Full Court in Champness & Hanson^[6] observed when commenting:
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    The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that objective, s60CC(2)(a)directs the Court to consider ‘the benefit to the child’ of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed, along with all of the other relevant factors.

S60CC(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

65. As mentioned above, the definition of family violence/abuse in the Act is a broad one. Nevertheless, the trial before me proceeded without emphasis on matters of family violence. I note only that whilst the paternal grandfather is understandably partisan to his daughter’s situation against the background to the separation of these parents, it would be considered contrary to X’s interests and perhaps abusive behaviour if he was to convey his personal sentiments to his granddaughter. I expect, however, armed with the insightful comments of the Family Reporter, the mother would protect X from any such behaviour.

S60CC(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 the child’s views

66. X is just four years of age and any views and preferences as to her living arrangements as conveyed through her parents should and will be given little or no weight as she would not reasonably be expected to be able to rationalise her own best interests in such complex matters.

S60CC(3)(b) – the nature of the relationship of the child each of the child’s parents and that of any other persons (including any grandparent or other relative of the child)

67. Ms Y identifies the differences in the nature of the relationships for X with each of her parents. The evidence before me confirmed those observations. The mother is and has been undoubtedly the primary parent. X’s attachment to her mother is consequently in those terms. The father, by reason of his complex work commitments or otherwise, has taken a different but no less significant role with X.
68. The mother’s proposed relocation would impact on X’s relationship with both of her parents. Her relationship with her mother would not have the current benefit of the punctuations of spending time with her father. That is, the differences in the nature of the parent/child relationship would be accentuated because of the inevitable gaps in time for X in seeing her father. Further, the father and X would lose any spontaneity and flexibility in their relationship. The father’s ability to participate in school and extracurricular activities would be limited, if not lost. Similarly, X has thus far enjoyed a high-frequency in her relationship with her maternal grandparents. The Family Report suggests some benefit for her in this relationship. Nevertheless, that same Family Report identifies a close relationship for X with her maternal grandparents despite far less frequency in direct contact. The mother’s proposal would be likely to simply substitute the maternal grandparents for the paternal grandparents in the regular caring role. It follows that X would be likely to maintain her current familiar and successful relationship with the paternal grandparents should she relocate to Adelaide.

S60CC(3)(c) – the extent to which each of the child’s parents is taken, or failed to take, the opportunity to participate in making decisions about major long – term issues in relation to the child and to spend time and communicate with the child and the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the obligations to maintain the child

69. The evidence suggests that the differing personalities of these parents have seen them evolve into different roles in respect of X. The mother has taken a more primary role. The father has work commitments and a personality which combine to see him delegate this role to the mother. This is, however, not a criticism of the father in that he has continued to spend time with X and she has benefited from that time. Conversely, the mother’s actions in February 2016 show a capacity to make unilateral decisions for X which could be seen as a lack of insight and respect for the father’s role in his relationship with X. This evidence fits with the observation of the Family Reporter at [40] that the mother takes a more educative approach to parenting whilst Mr Egerton is perhaps more boisterous and fun loving. The Family Reporter does opine, however, at [41]:
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    In any event, Ms Saunders continues to be X’s primary carer. It seems likely that Mr Egerton, with the support of his mother, is meeting X’s physical and emotional needs in his care.

70. There has been a financial dispute between the parents but with the making of final property orders I am confident that their financial issues and obligations in respect of X will become less competitive and more co-operative.

S60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other person (including grandparent or other relative), with whom she has been living.

71. X has lived primarily with the mother. Her time with her father has been complicated by his work roster but, on the evidence before me, has been frequent. X has also enjoyed frequent and regular time with the maternal grandparents.
72. The changes proposed by the mother would undoubtedly be significant for a child of X’s young age and in respect of the relationships with her father and paternal family. Put simply, and despite the mother’s generous proposals, time would become less frequent. It would be complicated by travel logistics. It is problematic, at the very least, as to whether these difficulties can be adequately mitigated by the mother’s proposals for the father to travel to Adelaide and/or use of media to maintain contact. Whilst the mother is undoubtedly X’s primary parent, the benefits of X’s relationship with her father should not be underestimated simply by reason of the different role he assumes and his different personality. The evidence makes it clear that X enjoys her father’s company and would be likely to enjoy and benefit from his attendance at future school, sporting or extracurricular activities. Opportunities for spontaneous interaction and flexible arrangements would inevitably be lost by the child’s relocation to Adelaide with the father remaining in Tasmania.

S60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with the 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

73. The practicalities of the mother’s proposals are in issue here as are the parents’ ability to finance any reasonable travel arrangements even if offered with the best of intentions. The father earns a reasonable income but particularised his expenditure and disposable income in his affidavit material without substantial or successful challenge as to his financial limitations. He says that he cannot afford frequent visits to Adelaide and certainly not in accordance with the mother’s proposals. Similarly, the mother is confident that she will obtain employment in South Australia but her proposed contributions towards X and the father’s travel would inevitably eventually take a lesser priority over the necessary expenses of day-to-day living for herself and X and the financial impost on her would be challenging at the very least. On the evidence before me, neither party is currently in a strong or financial position or could be considered ‘wealthy’ with any substantial residual disposable income after expenses.
74. The mother’s proposal for the father to spend time with X in Adelaide is generous but, I fear, made without informed or considered fore-thought. She offers her house, her car and the contents of her refrigerator for frequent visits by the father to Adelaide whereupon she would vacate her home. Whilst superficially attractive, I am dubious as to the sustainability of such a proposal into the future given the expected intervention of the usual vicissitudes of life.
75. Conversely, the evidence before me suggests that the mother has been able to enjoy at least three or four visits to Adelaide each year with X which on her own evidence have allowed X to establish a successful relationship with her grandparents. I understand that there have also been visits by the grandparents to Tasmania. Should the mother and X remain in Tasmania then there is no evidence to suggest that such mutual visits could not to continue.

S60CC(3)(f) – the capacity of each of the child’s parents and each other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

76. The mother’s capacity to provide for X’s physical needs are not impeached. She is the delegated primary carer of the child. She argues, however, that her parenting capacity in respect of X’s intellectual and emotional needs would be enhanced by a relocation to Adelaide. She says that she will pursue her employment and tertiary studies and have the emotional and physical support of her parents in doing so. She argues that such support is not available to her in Tasmania. Nevertheless, the father argues that both he and his family can provide physical support for the mother and respite in her primary care of X. He argues that she currently holds employment in Tasmania and he says, albeit without corroborating evidence that the mother’s preferred tertiary ambitions would be available to her in Tasmania.
77. It is, of course, proper and relevant that the Court considers the happiness and contentment of a child’s primary parent. The authorities make it clear, and it is common sense that a happier parent vicariously brings a positive to a child’s welfare. The consideration of an adult’s ‘right’ of freedom of movement is inherently considered together with the parent’s contentment. Happiness, however, is in my view a different consideration than any argument as to a manifest negative impact on the actual parenting capacity of the particular parent. In this respect I have no evidence before me in proper form of any such negative impact on the mother’s parenting capacity of a refusal to allow the relocation. My observations are of a stoic, capable and confident mother who parents X to a high standard in Tasmania whilst also pursuing her employment.

S60CC(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

78. The relevance here is X’s young age. Whilst she has established relationships with each of her parents, it is fair to assume that the success of those relationships is based to a large part on the frequency of direct contact for her with each of the parents. Whereas a child of more mature years might be easily able to cope with gaps in time between contact with a parent and be able to use and benefit from various media options, the frequency of direct contact remains important in both the establishment and maintaining of relationships for young children with the parents and others.

S60CC(3)(h) – if the child is an Aboriginal or Torres Strait Islander child

79. Not relevant.

S60CC(3)(i) – the attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents

80. The mother is the delegated primary parent of the child. Parenting is an art with many genre and styles. Whilst the mother may be applauded for taking on the primary parent role in respect of X, the fact that the father delegated that to her is not necessarily a source of criticism of him. Rather, it may well be a recognition by him of the difference in the parenting roles and styles and personalities of each of the parents. On the evidence before me, and after seeing and hearing both parties cross-examined in the witness box, I reject any suggestion by the mother that the father has prioritised his own interests to some selfish degree over those of X’s. I prefer, rather, that he has chosen to take a different role with his daughter.

S60CC(3)(j) and (k) – matters of family violence and family violence orders

81. The mother’s written material asserts that the father was violent in the sense of being controlling and verbally abusive. To her credit, however, those issues were not prosecuted with any vigour at the trial before me and certainly not emphasised to the Family Reporter. It is reasonable to expect that significant tension existed between these parents at and around the time of separation and given the circumstances of the separation. I am prepared to accept, therefore, that any issues of ‘family violence’ within the broad definition were situational only and I could not find, in the sense of any malafides, that the father’s opposition to the mother’s proposed relocation of herself and X to South Australia is in any way an aspect of a ‘controlling personality’.

S60CC(3)(l) – whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the child

82. It is always inherently aspirational in the reasons of trial Judges and their orders that such orders bring an end to litigation between parents in respect of their children. These orders, however, are prospective in their nature and application and it is inevitable that there will be changes for the child and each of the parents as they move forward. The consideration for the Courts and the parents, however, is that the parents should act positively in the parenting of their child with the assistance of the completed litigation, the Court’s Reasons and orders, and not view family Courts as an available default forum if they are later unable to agree on any aspect of their child’s parenting.