Parents need to be prepared to relocate

Parents need to be prepared to relocate

Bellamy & Bellamy

56. It is timely to be reminded of the principles in re-location matters set out importantly in of the High Court’s decision of U & U^[1] referred to by my brother, Judge Brown in his very insightful judgment in Clement & Clement^[2]. His Honour described the pathway set out by the High Court in U & U^[3]. The High Court indicated that at first instance a court was obliged to give careful consideration to the proposed arrangements put forward by each party but was not specifically bound by them. As the best interests of the child concerned remained the paramount consideration, it was incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than necessarily first considering restraining the parent who wished to relocate the child from moving.
57. The father had not explored that option at all. He was implacably opposed to moving anywhere near (omitted), anywhere out of Sydney, and had not thought of perhaps (omitted) or some other area until Mr Maddox asked him those questions. In Dr G report he briefly referred to the father’s capacity to move at paragraph 10:
    Interview with the father.

Mr Bellamy was observed to become subdued in his manner when asked about his relationship with the mother. He said “Ms Bellamy left me. She thought I cheated. I still love her”. When the issue of her relocation to (omitted) was raised, he said “I do not want her to move. We did not talk about it”.

58. He talked of his concerns about the distance between his residence and (omitted), the impact this would have on his relationship with the child and the impact on X of travel. However, the reality is that X has been doing this travel. He sleeps in the car and neither parent report a negative consequence for him.
59. The father that if she had notified him earlier of her intention to relocate he would not have bought his Sydney-based business. I do not know the purchase price of his business or when it was purchased. However, the business had not re-opened by 9 January 2017 and the husband is unsure when or whether it will re-open.
60. Justice Gaudron said in U & U^[4]:
    …how courts might subconsciously approach relocation issues when raised by mothers. It is sometimes said that it is part of the duty statement of being a parent that one will subjugate one’s personal aspirations and desires to what is seen to be best for one’s child. That is what it is seen to be an ideal parent or mother. Mothers are not required to soldier on regardless with a stiff upper lip if it is perceived to be the right thing to do for the children concerned.
61. The mother has clearly weighed up her options. She has a young child, a father with a difficult work roster. She has no family support in Sydney and has family in the (omitted) area and at (omitted). I found the father’s attitude to this lack of family support of concern. He said of the mother at paragraph 35 of his affidavit:
    She states that she would receive additional support in (omitted) from her parents. Up until X’s current age, Ms Bellamy had been coping well with X. X does not have any particular difficulties.

I continue to believe she is a good mother to X in Sydney receiving the support she currently receives from her parents, which is – they travel down from (omitted) as and when needed, three, maybe four times a year.

62. However, at paragraph 12 of his affidavit the father, properly makes much of the fact that his brother Mr G, wife and his four nieces and nephews will be coming to permanently live in Sydney the week of 16 January, and that this will be important for the father and X, that they will give the father support and X will be enriched by this extended family. Yet the father is dismissive of the mother’s claim of the benefit to her and X of being closer to her parents and extended family and being able to access more frequent additional support when the mother is the primary carer.
63. The mother was questioned that if her parents support was so important why did she not move to (omitted) as (omitted) is over one hour from (omitted). The mother said “I was thinking of Mr Bellamy. I did not want to move that far. It may have made it too difficult”. The mother has carefully picked a location where she has been able to secure high-quality new accommodation being a 3 bedroom townhouse at a rent of some $350 per week, 50 or so minutes from the mother’s home to the changeover point at (omitted) and at most some 1 hour and 30 minutes from the father’s home to the changeover point.
64. The mother has balanced her needs to be supported by her family enabling her to return to full time work, provide a standard of living and accommodation for X that is appropriate as well as engaging him in other activities such as swimming, speech pathology and preschool and ensuring he can continue to spend quality time with his father and maintain his beneficial relationship with him.
65. The mother has well thought out her plan. It is not a flight of fancy. The mother has two aunts living very close by, one of whom knows X very well. The mother has significant family support in this area, which the father cannot provide her, on Wednesday, Thursday, Friday, Saturday or Sunday night each week. Yet he believes the mother should cope. That is precisely what Justice Gaudron said was against the law was stating in U v U^[5] namely to make a parent by order soldier on or merely cope.

66. Going as I must to the Act^[6]. The Act provides at paragraph 60B(1) that the orders should ensure the children have the benefit of both parents having a meaningful involvement in the lives to the maximum extent consistent with the best interests of the child. I clearly have to protect children from harm, and there is no risk of harm to X from either parent or anyone in his life.
67. Section 60B(2) of the Act^[7] stats that children have the right to know and be cared for by both parents, spend time on a regular basis and communicate with each parents. Parents jointly share duties. Parents are to agree about the future arrangements. Children have a right to enjoy their culture.
68. The Court’s inquiry is to be a positive one, tailored to the best interests of the particular child and not children in general. That principle arises out of the decision of B & B^[8].

89. As Justice Gaudron said:
    The primary parent’s role is not to sublimate their justified and legitimate interest in what is perceived as the best interest for the child.
90. As the father sees it the best interests of the child is living close to the father so he can spend quality time with the father. That is just one way of looking at the matter.
91. In again quoting from Justice Gaudron in U & U^[15]:
    It must be accepted that regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will almost inevitably disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk the she will be seen as selfishly preferring her own interests to those of her child. A mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.

It must be acknowledged that it is likely that in very many relocation cases that mother will concede that if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility it is essential that in relocation cases each competing proposal be separately evaluated.

92. Justice Hayne J said in U & U^[16]:
    If effect is to be given to those principles it must not be assumed that one parent cannot move, and that the mother must in every case subordinate her ambitions and wishes not to the needs of her child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interest of one of them.
93. That is the difficulty that I have with the father’s competing proposal. It is all about him, “I wish to remain in (omitted), although I do not know where I will be working or whether I will have a business and the mother must return with my son so that I live where I wish to live.” That is clearly not the law nor would an order for the mother to return be an order in the child’s best interest.
94. There is little impediment to the father moving other than he says he has insufficient funds. Each had a property settlement. The wife received $180,000 and the husband $70,000. The mother is desirous of purchasing a home in that (omitted) area where she can get, as she said, more for her dollar. I will take judicial notice that quality properties in that area will be cheaper than similar quality properties in the Sydney Basin.
95. The newspaper is full of the difficulties for young couples, let alone single parents purchasing a property in Sydney. The father’s whole case is predicated on, “I cannot or will not move.” yet he can move. There is not one impediment to him moving other than he says he cannot afford it. However, he, like the mother, achieved a property settlement and his evidence about his business is far from clear to me.
96. Justice Kay said in Godfrey & Saunders^[17]:
    What the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

111. If the father cannot obtain suitable accommodation near X’s school I can only order alternate weekend time so as not to interfere with X’s schooling.