In Boyle & Zahur and Anor (No. 2) [2017] FamCAFC 263 (14 December 2017) the Full Court (Thackray, Murphy & Carew JJ) heard the mother’s appeal against Justice Gill’s dismissal of her application to relocate overseas with the parties’ two daughters (aged 12 and 11) temporarily. When her partner, who was employed by a government agency, was posted to Country “H” for between 2 to 4 years the mother sought to relocate the girls for the duration of that posting. The father’s opposition to that application was upheld at first instance. The children had been in the mother’s primary care in the past and since separation, spending alternate Friday, Saturday and Wednesday nights in the father’s care pursuant to an earlier consent order.
The Full Court said (from [21]):
“ … [A]gainst the background of … conflict and the parents’ manifest inability to communicate in any meaningful way, his Honour ordered the parties to have equal shared parental responsibility. His Honour said … that ‘[w]hile there are significant communication problems between the parents’ they had agreed to the making of such an order. ( … )
[22] It is, respectfully, not at all clear how a finding could have been made (implicitly) that the parties could or would comply with s 65DAC’s mandatory requirements in light of that same lack of cooperation and conflict which his Honour found. ( … )
( … )
[24] The order for equal shared parental responsibility led mandatorily to a consideration of s 65DAA. That consideration led to a finding … which conveniently encapsulates the findings leading to his Honour’s ultimate conclusion and orders. That paragraph of the reasons contains the following findings:
‘[E]ach of the parents has exposed and involved the children in [their] conflict’;
There was a ‘lack of cooperation’ between the parents;
There was a ‘likelihood of further conflict being generated by that lack of cooperation’;
There was a ‘likelihood of the children being involved in that [further] conflict’;
The girls have different relationships with each of their parents;
‘At present the girls feel emotionally safe and understood with their mother’;
‘The family report demonstrates a high degree of connection between the girls and their mother”;
‘At the same time, there are difficulties in [the children’s] relationship with their father and in the way that they perceive him’; and
‘The present state of the relationship between the father and the girls is not such as to support an equal sharing of time’.
( … )
[26] … [I]mportant premises for his Honour’s conclusions as to the children’s best interests are the predomination of the role of the mother as the children’s historical and current primary carer; the differing nature of the relationship between the children and their respective parents; and the need for minimisation of interaction and cooperation between the parties.
[27] His Honour’s ultimate conclusion and orders are also shaped by a number of findings, the effect of which is that the mother would not support a relationship between the children and their father. His Honour found that if the relationship was ‘reliant upon Skype and a single visit per year, [the relationship] is at risk of diminishing further’. ( … )
( … )
[35] His Honour determined that the parents should share equally parental responsibility for the girls. Consequently, as … his Honour correctly apprehended, it was mandatory for his Honour to apply s 65DAA of the Act. In respect of that section’s requirements, where a relocation is proposed, the High Court held in MRR v GR [[2010] HCA 4] … that s 65DAA(1) ‘is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent’. The Court held further that s 65DAA(1)(b) ‘requires a practical assessment of whether equal time parenting is feasible’.
[36] … [T]he same is equally true of a consideration of ‘substantial and significant time’ if an equal time order is rejected as not being in the children’s best interests or not reasonably practicable (s 65DAA(2)).
( … )
[38] ( … ) Ultimately, the mother’s ‘minutes of proposed orders’ contended for an order that the children spend time with their father ‘[o]nce a year in Australia during the children’s school holidays’; otherwise ‘[a]s agreed between the parties should the respondent father wish to visit the children in [Country H]’ and … communication ‘by Skype twice a week’.
( … )
[40] The mother did not at any time contend, in respect of the four year period under consideration, that it was in the children’s best interests to live with her in Australia for that period and there spend the regular time with their father that the existing orders permitted. Her sole contention was that the children’s best interests were served by the temporary move to Country H and the (necessarily restricted) face to face time with their father that would entail.
( … )
[42] … [B]y the end of the trial … the father had abandoned his proposal that the children live with him … pursu[ing] in lieu the proposal … that the children live week about between the mother and him. ( … )
[43] … The mother’s ‘fall back’ position, as it was described in Heaton [(2012) 48 Fam LR 349], that she would stay in Australia if the children could not move to Country H for four years, was not a proposal advocated by her and should not have been elevated as such.
[44] Conversely, the father’s proposal assumed that he could not and would not himself move to Country H. ( … )
[45] No proposal put forward by the father contended for the children to spend any time with him if they lived with their mother in Country H for that four year period. His proposals countenanced no arrangement in the best interests of the children that did not see them living with him. The father’s sole contention was that the children’s best interests were served by them remaining in Australia and living with him, or living with the mother and him week about.
( … )
[59] We consider with respect that his Honour elevated to the status of a proposal by the mother something which was never a proposal by her.
[60] Further we consider that his Honour erred in the manner described in Jurchenko [Jurchenko & Foster (2014) FLC 93-598] … Respectfully adapting what the Full Court said in that case, in our view, the error lies in his Honour approaching the matter:
‘ … with a mindset in which it was assumed that the outcome needed to be one which would ensure a meaningful relationship with both parents – which according to his Honour could be achieved only if both parents lived in the same location. Having posed the question in this way, there then became only one available answer when the father’s professed inability to move to or visit [Country H or elsewhere] was accepted as beyond criticism, and the mother was treated as having made a concession she would stay in [City K] … ’
[61] Earlier in those reasons … the Full Court framed the error in this way:
‘ … [His Honour] was diverted to determination of the location in which the child could maintain a ‘meaningful relationship’ with both parents, rather than determining which of the proposals was better for the child…
[62] We consider, with respect, that his Honour erred in the same manner.
( … )
[67] The father made no proposal and adduced no evidence to show why he could not, or would not, facilitate time with the children by means of visits outside of Australia. … (Nor, indeed, did he make any such proposals for time in Australia predicated upon the children being in Country H).
( … )
[90] We have earlier made reference to the central premises for the orders which his Honour made. The mother’s lack of support for the children’s relationship with their father would likely result in nothing ‘more than a marginal role for the father in his daughters’ lives over the next four years’ … Thus, it is concluded, ‘a proposal for the Skype time and yearly visit’ would not be sufficient to sustain the relationship between the father and the girls … There was, his Honour found, ‘a significant risk’ that the move would ‘see a further degradation of [the children’s] relationship with their father’ … What his Honour saw as the benefits of a move to Country H ‘do not rise to the same level of significance as the consideration of the benefits of relationship with the father’ …
[91] There was and is no issue that the children should have a relationship with their father. There was and is no issue that the children love their father and want a relationship with him and, indeed, that they would miss their father if they moved to Country H. Equally, there was and is no issue that the reduction in face to face time with their father (noting, again, that the proposed move was temporary) was not ideal. These matters are the axioms upon which the vast majority of so-called ‘relocation cases’ proceed. Yet, the task is to fashion orders which best meet the best interests of the children by reference to the proposals of the parties or those fashioned by the Court (subject to procedural fairness considerations) by reference to ‘the reality of the situation’.
[92] As a consequence, orders that contemplate a continuation of the existing orders which thwart the legitimate desire of the mother and are contrary to the wishes of relatively mature children, involves a conclusion that those orders are more in the best interests of the children than other available alternatives.
[93] A central inescapable fact in this case is that parental hostility and conflict to which the children were exposed and the impact upon the children … arose during the currency of the existing orders which his Honour’s judgment and orders would see continued.
[94] The premises for his Honour’s orders are prefaced by an apparent finding that ‘[o]nce the litigation is resolved and the question of a move to [Country H] is resolved … there might be some degree of dissipation of conflict’ (at [83]). Yet, in the same sentence, his Honour says that ‘it cannot be concluded that there will be a resolution of the underlying hostility that has been exposed in the litigation’.
[95] As to the last sentiment we respectfully consider that no other conclusion could reasonably have been reached on the evidence before his Honour. However … we find it difficult to understand how it can be inferred that the conflict ‘might’ dissipate to some degree by the making of orders that deny both the mother and the children what they each seek. Indeed, all of the evidence points to the contrary conclusion.
[96] Similarly we cannot … see how it was open to conclude on the evidence … that the conflict would, or would be likely to, dissipate upon the end of the litigation. All of the evidence before his Honour points to the conflict being bitter, entrenched and rooted in mutual disrespect by one parent for the other.
[97] The last point is important. His Honour’s central premises focus upon findings as to the mother not supporting the relationship between the father and the children if they move to Country H. Yet, other important findings … are plainly to the effect that the father does not support the role of the mother and that he criticises and undermines her in significant ways. That degradation of the mother occurs, it should be noted, in the context of orders which have pertained for over two years and which are the very orders which his Honour finds should continue in the children’s best interests.”
The appeal was allowed and the case remitted for re-hearing.