Sole parental responsibility and interim relocation

Sole parental responsibility and interim relocation

Osmond & Brand

Where the parent having orders for sole parental responsibility and for the child to live with him seeks to relocate to Brisbane – where such a move is opposed by the parent who is to spend time with the child – where the parent seeking to relocate with the child has sole parental responsibility – where the circumstances are clearly distinguishable from a situation arising from settled arrangements without orders or equal shared parental responsibility – where interim leave to relocate is ordered

DISCUSSION

26. It was submitted on the part of both parties in relation to this matter, that it was, a little different to what might be called, the normal relocation case. Unfortunately, more often than not, relocation cases are actually applications with regard to the issue of a recovery order seeking the return of a child who has been, without authorisation of at least the other parent, moved so that their circumstances have radically changed.
27. That is not the case here for a number of reasons, not the least of which is that the father seeks the opportunity for the move, notwithstanding that on the face of it he would have had the absolute right to effect the change after consultation with the mother and, if no agreement was to reached, then to make the decision himself. Certainly that was contemplated pursuant to the orders of Judge Willis as being a factor to be considered, specifically noting that order 15 did note that the father was the party who held sole parental responsibility in relation to long-term issues and that such issues were not, “for debate with the mother”. The father has, in my assessment, acted appropriately in bringing the application because it is necessary for a determination to be made in relation to the proceedings.
28. Where there are changes contemplated or proposed, in relation to the parenting of the child, there does need to be some consideration of what would be the proper course to follow. However, I am mindful of the fact that following a three-day hearing and the provision of a lengthy set of reasons in relation to what might be the position in respect of the proceedings, it was determined that the father should be the sole arbiter and determiner of what should occur, in relation to this child’s future long-term arrangements. That is not to say that the mother should not properly be consulted and to have involvement in relation to the determination and if, as is the case here, there is disagreement, to have the opportunity to contest whatever decision should be made.
29. No matter what course is followed, it is noteworthy, of course, that the statutory or legislative pathway must be followed in relation to the determination of what should occur. In that respect, again, understandably, I was referred by counsel for the mother to the decision of Boland J sitting as the Full Court in Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343. There, her Honour, in determining an appeal from a decision made with regard to parenting, provided some lengthy comments in relation to the process to be followed. At paragraph 85, she said the following:
    In Goode –

referring, of course, to Goode & Goode (2006) FLC 93-286 –
the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode.

30. Her Honour then set out paragraphs 71 through 73 of the decision of the Full Court in Goode & Goode (supra), and they are in these terms:
    71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (section 60B), the inclusion of the presumption of equal shared parental responsibility (section 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well-settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

73. That is not to say that stability derived from a well-settled environment may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision could be arrived at after a consideration of the matters contained in section 60CC, particularly section 60CC(3)(d) and section 60CC(3)(m) and, if appropriate, sections 60CC(4) and 60CC(4A).

31. There is, of course, a significant distinction to be drawn in relation to those comments with regard to Goode & Goode and the circumstances that exist here. The first is that there is no longer the presumption of equal shared parental responsibility. Following a three-day hearing in October of 2014, Judge Willis determined that the best interests of this child were to be met by there being orders made for the father to have sole parental responsibility and, of course, as was emphasised by counsel for the father, there was no appeal in relation to those determinations and the matter has proceeded upon that basis ever since the decision was made in January of 2015. It is also not the case that unless the presumption is rebutted then consideration must be given to equal time and substantial and significant time because, of course, there has already been a determination that the presumption of equal shared parental responsibility has been rebutted and that the child’s primary care and the time spent primarily with one person or the other, vests in the father.
32. It is therefore not simply a case of leaving a situation that has existed for a significant period of time until there can be a more complete or thorough examination of what might or might not be in the best interests of the child. That has already occurred. The father has, however, now indicated that there is to be, from his perspective, at least, a significant change effected in relation to what should occur with regard to the parenting of this child and, of course, how the relationship with the child and the mother can be continued.
33. I note that Boland J in Morgan & Miles went on to comment at some length about the difficult issues that arise in relation to relocation cases. In particular, and I was referred specifically to paragraph 88, her Honour noted:
    It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S [[1998] FamCA 66] remain apt and relevant to determination of these cases.
34. As I understand it, the comments that her Honour were referring to made by Warnick J in C & S (1998) FamCA 66 were these comments:
    In my view, it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.
35. Again, however, the circumstances in relation to this case are different. There has already been the significant determination made with regard to the welfare and the best interests of X, and the determination made by Judge Willis was to the effect that the appropriate course was for there to be an order placing the child in the care primarily of the father and vesting in the father primary responsibility with regard to determinations, in relation to the child’s long-term care, welfare and development.
36. I make all of those comments in relation to the matter because it is necessary to emphasise the difficulties and the complexities that arise in relation to this particular matter. I note also that her Honour, talking in Morgan & Miles (supra) about the different considerations that need to be looked at, sought to draw some distinctions between children of various ages and what might be the effects of relocation. She said at paragraph 91 the following:
    This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different, for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship.

Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non-relocating parent, particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non-relocating parent can be maintained and fostered.

37. It seems to me that that is a significant consideration in relation to these proceedings. It was touched upon by the legal representatives for both parties in the submissions that were made in relation to the proceedings. It was emphasised by counsel for the mother that to make an order which would enable the father to relocate with the child gives rise to there being, as she put it, “too much potential for damage”. It was therefore suggested that an interim relocation would not be appropriate but rather that there should be a preclusion on the child leaving (omitted) until at least there could be a thorough investigation and inquiry into what might or might not be the consequences for X.
38. I must say that there is some strength in that particular argument in relation to the matter, but it goes both ways. I say that in the sense that I understand that the father has indicated his determination to take up the promotion and posting to Brisbane. Accordingly, this little boy having lived for the last 22 months primarily with the father would be thrust into a situation where, if he were not to relocate, then he would be separated from the parent who has primary responsibilities in relation to the care of the child.
39. The mother’s proposal with regard to there then being a radical change, which would see the child placed back into her care is one that has just as great if, with respect, not greater concerns, as to what damage might be done. If nothing else, the determination by Judge Willis in relation to this matter was that there were very serious concerns with regard to the mother and her attitude to the father, and whilst there may have been some steps taken, it is clear from the material that has been filed, that there is still difficulty in the exchanges and relationship between the mother and the father.
40. I am left, therefore, in a difficult position of noting that no matter what might be ordered in relation to this matter, there is risk to this child. It would be trite to say that life is full of risk, but it is clear that no matter what decision might be made, this little boy’s circumstances will change and he has already been subjected to a number of significant changes in his life.
41. The father says that the relationship with the mother can be fostered and developed and continued on a meaningful level, with some adjustments to the time to be spent with the mother, removing, obviously, the opportunity for time during the gazetted school terms other than if the mother were to be in the same locality as the father, but with adjustment to the amount of time spent during the holiday periods.
42. The mother says that the more appropriate course would be for the child to remain in (omitted) either in her care or alternatively, though not her preference, in the care of the father’s wife. That would, of course, give rise to further difficulties, in my assessment, in relation to the family and the dynamics, because this little boy could quite possibly be left in a situation where he is being cared for by neither of his parents.
43. I find myself therefore in a situation where I struggle with what orders should be made. As would certainly be well known to the legal representatives appearing in these proceedings, it is rare that I would ever consider a relocation on an interim basis. There are obviously issues that arise and as were identified by Boland J and commented upon also by Warnick J in C & S (supra), there are factors which can more appropriately and more fully be considered in a full hearing, where evidence is tested.
44. The distinction here is that evidence has been tested in relation to this matter and the determination was made that the most appropriate and proper course with regard to this child was for the child to live with the father. The father has taken up a position that has been offered which will further his career. There are obviously reasons that he would seek to do that, and whilst it may be suggested in part that they are, therefore, self-centred reasons rather than child-focused, one can imagine that the furthering of his career will lead not only to financial improvement in relation to the father’s household but also no doubt benefits that would flow from the satisfaction of progressing in his career.
45. I have come to the determination, therefore, considering all the matters that I have referred to that it is appropriate that on an interim basis relocation should be authorised in relation to this child and to enable the child to live with the father in Brisbane.
46. But that does not mean that the determination is complete. Circumstances will have radically changed and certainly the mother’s position is to say that on a final basis there should be some significant changes with regard to parenting. That is a matter for another day, but it is a matter which will need to be considered in due course.
47. What does need now to be looked at is what arrangements are appropriately required to be made, so as to ensure that the meaningful and proper relationship that is currently in existence between the mother and this little boy are able to be fostered and developed. As I noted, Boland J did comment upon the fact that there may be little impact on maintaining a meaningful relationship between a child and the non-relocating parent, particularly if the child has a history of living predominantly with the relocating parent. I accept absolutely that this child has not lived predominantly with the father, but if one is to deal with the present and the future, the fact is that for the last 22 months, this little boy has lived with his father predominantly, and that is a factor of some significance in relation to the matter.
48. I am also satisfied that the relationship with the mother can and should be appropriately fostered by additional time being made available to the mother to spend time with X during school holiday periods. I note what is proposed by each of the parties, in relation to the matter in that regard and have come to the view that whilst the mother understandably would seek considerably increased opportunities for time to be spent with X, there is also the need to foster and continue the relationship that X has with his father, on a basis not only of the school terms but also, one would hope, the times that are to be spent during school holiday periods.
49. The compromise that I think appropriate in that regard, therefore, is to vary the orders that have been made in relation to the mother’s time to be spent with X during school holiday periods, such that the mother has the opportunity to spend 10 days with X during the end of term 1 and end of term 3 school holiday periods in each year, being the first 10 days in even-numbered years and the last 10 days in odd-numbered years.
50. Additionally and quite properly, in my assessment, it would be the case that the mother should have the opportunity to spend the entirety of the end of term 2 school holiday period with the child and that there be a continuation of the first half and second half of the end of term 4 school holidays, again on the basis of the first half in even-numbered years and the second half in odd-numbered years.
51. Additionally, whilst the mother understandably, I think, was concerned as to the arrangements with regard to her opportunity to spend time with X should she be in Brisbane, it would be appropriate for the mother to have the opportunity to spend, in my assessment, up to nine consecutive days with the child on up to two occasions each school term, bearing in mind that that would mean from after school on a Friday until a Sunday 10 days later subject, of course, to the mother providing 14 days written notice of her intention to spend such time with X and to ensure that X continue his regular attendance at school and involvement in all current extra-curricular activities. It would give the mother the obvious opportunity to spend more time with X and, of course, to involve herself in activities that would not normally be available with the parties living so far apart.
52. I also intend to make orders, in relation to the opportunity for telephone or electronic communication by the parent not having the child in their care on two occasions each week at times to be nominated by the father, as well as, of course, for there to be specific arrangements in place for each parent, when they do not have the child in their care to communicate with X by telephone or electronically on special days, including, Easter Sunday, Christmas Day, the parent’s or the child’s birthday, siblings’ birthdays, Father’s Day, Mother’s Day and the like.
53. There are also, however, issues that arise with regard to the travel costs. I am mindful of the proposal that has been put by the father in relation to the sharing of travel costs but more particularly I am obviously aware of the fact that the father is the one who seeks to make the move and that it would be the father’s move that gives rise to the additional expense that would arise, in relation to either parent collecting or returning the child. By the same token, I am also mindful of the fact that one of the considerations which must be looked at, pursuant to the provisions of section 60CC of the Family Law Act, is the parents’ financial contributions to the support and needs of the child.
54. It might be that the mother is in arrears. It might be that she has significant additional expenses to make arrangements for but, with respect, the primary consideration here for the Court and, I would have hoped, also for each of the parents was to ensure that the needs of the child, including the child’s financial needs, were able to be met, as a result of appropriate and proper contributions by each parent.
55. In the end, I therefore come to the view that the appropriate orders with regard to travel, at least until there is some final determination in relation to the matter, is that the father should be responsible for the costs of the child’s travel to spend time with the mother provided, however, that should there be any arrears of child support and/or previously ordered or agreed costs that remain outstanding, then that the mother pay the costs of the child to come into her care at the commencement of time to be spent with the child and the father pay the costs for the child’s return to his care.
56. Once there are no arrears, in my assessment, as indicated, it is appropriate that the father should be responsible for the entirety of the costs associated with the child’s travel during the gazetted school holiday periods. Of course, it would not be appropriate, nor would I consider making an order with regard to the sharing of any costs associated with the mother spending time in Brisbane, as that would be additional to the other times that are specifically outlined, in relation to these proceedings.
57. I should indicate that I also gave consideration as to whether I should order the preparation of a family report in relation to this matter. There was certainly strength in the submission made on the part of the mother that there needs to be some further investigation in relation to these proceedings. I have not determined, however, that it is appropriate that I should make such an order in relation to this matter at this time because it is unclear exactly what might be the final position taken, with regard to each of the parents. It may be, for example, that this and I do not mean to be disrespectful, skirmish has led to a determination which would lead then to a re-settling of the circumstances between the parties and there may not then be further litigation. If, however, there is to be further litigation in relation to final arrangements both with respect to with whom X should live and/or other arrangements with regard to where X should live, then it may be essential that a family report is obtained.
58. But at the present time, I do not intend to make any such order in relation to the matter. Rather, I intend to adjourn this matter for further mention before me to 14 February 2017 at 10 am, at which time there can be consideration of what is the position of each of the parents and whether they, one or other, seeks to press their final application in relation to the matter. At that time, I would also then, of course, hear argument with regard to a venue for any final determination in relation to the proceedings. I will direct that my reasons in relation to this matter be published and made available in due course to the parties so as to clearly have articulated the reasoning behind the determination made with regard to the matter.