ALVISIO & BARBARESCO
[2018] FCCA 3537
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALVISIO & BARBARESCO | [2018] FCCA 3537 |
| Catchwords: FAMILY LAW – Parenting – Mother seeks to relocate from country New South Wales to start new life with new partner in Queensland – Mother’s evidence was to the effect that she has been and continues to be subject to “mafia-esque” intimidation from the Father, his family and his friends – evidence of family consultant equivocal in certain respects and dubious about the relocation but also clear about the children living primarily with the Mother – best interest considerations – Mother’s Application supported by Independent Children’s Lawyer – Application granted. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3)(a) – (l), 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 B & B [2006] FamCA 1207 Blanding v Blanding (2017) 55 Fam LR 218 Bolitho & Cohen (2005) 33 Fam LR 471; (2005) FLC ¶93-224 Cales & Cales (2010) 251 FLR 454; (2010) 44 Fam LR 376 Collu & Rinaldo [2010] FamCAFC 53 F v F (2008) 38 Fam LR 52 Fox v Percy (2003) 214 CLR 118 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Goode v Goode (2007) 36 Fam LR 422 Hepburn & Noble (2010) FLC ¶93-438 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 MRR v GR (2010) 240 CLR 461 Paskandy & Paskandy (1999) FLC ¶92-878 Payne v Payne [2001] Fam 473 Powell & Ptolemy (2005) FLC ¶93-239 Sealey & Archer [2008] FamCAFC 142 Sheldon & Weir (No.3) [2010] FamCA 1138 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2008) 37 Fam LR 461 U v U (2002) 211 CLR 238 Vontek v Vontek [2017] FamCAFC 28 Wiley & Wiley [2008] FamCAFC 153 |
| Applicant: | MS ALVISIO |
| Respondent: | MR BARBARESCO |
| File Number: | CAC 1874 of 2017 |
| Judgment of: | Judge Neville |
| Hearing dates: | 9-10 August, 2 November 2018 |
| Date of Last Submission: | 3 December 2018 |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Giacomo |
| Solicitors for the Applicant: | Cater & Blumer |
| Solicitors for the Respondent: | BJH Lawyer |
| Counsel for the Independent Children's Lawyer: | Mr Lawrence |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
The parties have equal shared parental responsibility for the children; [X] (born: …2008) and [Y] (born: …2009) (“the children”).
The children live with the Mother.
The Mother be permitted to relocate to Town A with the children and reside there on a permanent basis.
The children spend time with the Father as agreed between the parties and, failing an agreement, as follows:
(a)For the entirety of the first, second and third school holidays from the first day of the holidays until 5pm the last day of the holidays;
(b)For the entirety of the fourth term/Christmas holidays in even years except for the last week;
(c)For the entirety of the fourth term/Christmas holidays in odd years except from 23 December to 2 January; and
(d)On all weekends where a public holiday falls on either the Friday or the Monday, if the father travels to Town A.
Changeover will occur with either the children flying from Town B to Sydney and Sydney to Town C, or the parties meeting halfway at Town D.
The Mother is to pay all travel costs associated with the children spending time with the Father pursuant to Order 4.
The children have telephone communication with the parent with whom they are not living each evening, with the parent they are not with to telephone the children at 6pm.
If Father’s Day falls outside the Father’s time with the children in accordance with these orders, in the event the Father travels to Town A then the children shall spend time with him (with such time occurring in Town A) on Father’s Day weekend from after school on Friday immediately prior to Father’s Day until before school Monday;
For the purpose of order 8 above the Father must provide the mother with written notice by way of text message and / or email of his intention to spend time with the children in Town A at least fourteen (14) days prior to such time occurring;
Each parent shall authorise any school the children attend to advise the other parents of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child/children as soon as practicable.
Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child/children shall attend from time to time to provide to the other parent any information regarding the child/children.
If the children fall ill such that one of the parents takes the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor. Each parent is then restrained from seeking alternate medical treatment unless the condition appears to deteriorate or does not improve.
In the event of an emergency or where the child/children requires hospitalisation, then the parent who has care of the children shall notify the other immediately and supply details of the hospital or medical practitioner where the child has been taken.
Each parent shall notify the other within 24 hours of any change in residential address.
Each parent shall notify the other within 12 hours of any change in contact telephone number.
Any communication between the parents remains respectful.
Neither party nor their servants or agents shall post photographs of the children on social media.
Neither parent nor their servants or agents shall denigrate the other party or their family or partner in front of or within hearing of the children.
Neither parent nor their servants or agents shall discuss these proceedings in front of, with or within hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Alvisio & Barbaresco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1874 of 2017
| MS ALVISIO |
Applicant
And
| MR BARBARESCO |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves parenting arrangements regarding almost 11 year old [X] and 9 year old [Y] (“the children”) in circumstances where the Applicant Mother says that she wishes (a) to escape what she describes as the oppressive and intimidating environment of Town C in country New South Wales and her Husband’s controlling family, and (b) to start a new life with her partner and the children in Town A in Queensland. The Father opposes the Mother’s Application. The Independent Children’s Lawyer (“the ICL”) supports the Mother’s Application.[1]
[1] Orders were made on 21st December 2018. What follows here are the reasons for those Orders.
For the reasons that follow, the Mother’s Application should be granted. In my view, her Orders are in the best interests of the children.
Orders Sought by the Applicant Mother
The Orders sought by the Applicant Mother were set out in the Case Outline filed on her behalf on 2 August 2018. They were as follows:
Orders if the children are permitted to relocate
1. That the mother and father have equal shared parental responsibility for the children; [X], born …2008 and [Y], born …2009 (hereinafter referred to as “the children”).
2. That the children reside with the mother.
3. That the mother be allowed to relocate to Town A with the children and reside there on a permanent basis.
4. That the children spend time with the father as agreed and failing an agreement as follows:
a. For the entirety of the first, second and third school holidays from the first day of the holidays until 5pm the last day of the holidays;
b. For the entirety of the fourth term/Christmas holidays in even years except for the last week;
c. For the entirety of the fourth term/Christmas holidays in odd years except from 23 December to 2 January;
d. On all weekends where a public holiday falls on either the Friday or the Monday, if the father travels to Town A.
5. That changeover will occur with either the children flying from Town B to Sydney and Sydney to Town C or the parties to meet halfway at Town D.
6. That the children have telephone communication with the parent with whom they are not living each evening, with the parent they are not with to telephone the children at 6pm.
7. That each parent shall authorise any school the children attend to advise the other parents of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child/children as soon as practicable.
8. That each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child/children shall attend from time to time to provide to the other parent any information regarding the child/children.
9. That if the children fall ill such that one of the parents takes the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor. Each parent is then restrained from seeking alternate medical treatment unless the condition appears to deteriorate or does not improve.
10. That in the event of an emergency or where the child/children requires hospitalisation, then the parent who has care of the children shall notify the other immediately and supply details of the hospital or medical practitioner where the child has been taken.
11. That each parent shall notify the other within 24 hours of any change in residential address.
12. That each parent shall notify the other within 12 hours of any change in contact telephone number.
13. That any communicating between the parents remains respectful.
14. That neither party nor servants or agents shall post photographs of the children on social medial.
15. That neither parent nor their servants or agents denigrate the other in front of or within hearing of the children.
Orders sought if the children are not permitted to relocate
1. That the children reside with the father.
2. That the children spend time with the mother as agreed and failing an agreement as follows:
e. For the entirety of the first, second and third school holidays from the first day of the holidays until 5pm the last day of the holidays;
f. For the entirety of the fourth term/Christmas holidays in even years except for the last week;
g. For the entirety of the fourth term/Christmas holidays in odd years except from 23 December to 2 January;
h. On all weekends where a public holiday falls, on either the Friday or the Monday if the mother travels to Town C.
Orders Sought by the Respondent Father
The Father’s Case Outline was filed in Court on 9th August 2018. It contained his Orders Sought, which were as follows:
Orders if the Children are permitted to relocate
1. That the mother and father have equal shared responsibility for the children; [X], born …2008 and [Y], born …2009 (hereinafter referred to as the “the children”).
2. That the children reside with the mother.
3. That the children be allowed to relocate to Town A with the children.
4. That the children spend time with the father as agreed and failing agreement as follows:
a. For the entirety of each of the first school holidays from the first day of the holidays until 5.00pm the last day of the holidays in even years.
b. For the entirety of each of the first, second and third school holidays from the first day of the holidays until 5.00pm the last day of the holidays in odd years except from Good Friday through until Easter Monday.
c. For the entirety of each of the second and third school holidays from the first day of the holidays until 5.00pm the last day of the holidays.
d. For the entirety of the fourth term/Christmas school holidays in even years.
e. For the entirety of the fourth term/Christmas school holidays in odd years except from 24 December to 2 January.
f. On all weekends where a public holiday falls on either the Friday or Monday.
5. That changeover will occur at Town C.
6. That the children have liberal telephone, skype and alike communication with the parent with whom they are not living.
7. That each parent shall authorise and any school the children attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent teach nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child/children as soon as practicable.
8. That each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child/children shall attend from time to time to provide to the other parent any information regarding the child/children.
9. That is the children fall ill such that one of the parents takes the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor. Each parent is restrained from seeking alternate medical treatment unless the condition appears to deteriorate or does not improve.
10. That in the event of an emergency or where the child/children require hospitalisation, then the parent who has care of the children shall notify the other immediately and supply details of he hospital or medical practitioner where the child has been taken.
11. That each parent shall notify the other within 24 hours of any change in residential address.
12. That each parent shall notify the other within 12 hours of any change of any change in contact telephone number.
13. That any communicating between parents remains respectful.
14. That neither party nor servants or agents shall post photographs of the children on social media.
15. That neither parent nor their servants or agents denigrate the other in front of or within hearing of the children.
Orders if the Children are not permitted to relocate
1. That the mother and father have equal shared responsibility for the children; [X], born …2008 and [Y], born …2009 (hereinafter referred to as the “the children”).
2. That the children reside with the father.
3. That the children spend time with the mother as agreed and failing agreement as follows:
a. For the entirety of each of the first school holidays from the first day of the holidays until 5.00pm the last day of the holidays in even years.
b. For the entirety of each of the first, second and third school holidays from the first day of the holidays until 5.00pm the last day of the holidays in odd years except from Good Friday through until Easter Monday.
c. For the entirety of each of the second and third school holidays from the first day of the holidays until 5.00pm the last day of the holidays.
d. For the entirety of the fourth term/Christmas school holidays in even years.
e .For the entirety of the fourth term/Christmas school holidays in odd years except from 24 December to 2 January.
f. On all weekends where a public holiday falls on either the Friday or Monday.
4. That changeover will occur at Town C.
5. That the children have liberal telephone, skype and alike communication with the parent with whom they are not living.
Orders Sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer’s (“the ICL”) Orders Sought, filed 9th November 2018, were as follows:
1. All prior parenting orders are discharged.
PARENTAL RESPONSIBILITY:
2. The mother have sole parental responsibility for the children namely [X] born …2008 and [Y] born …2009 (“the children”).
3. Notwithstanding order two (2) hereof:
3.1.The mother is to notify the father of her intention to make any major decision in relation to the child/ren with such notification to be provided to the father in writing including text message and / or email; and
3.2.The mother is to notify the father in the event of a serious illness, or hospitalisation or emergency in relation to the child/ren; and
3.3.Nothing in these orders precludes the father from obtaining information pertaining to the child/ren’s schooling, religion, health and / or welfare.
RELOCATION:
4. Fourteen (14) days prior to the commencement of school in term 1, 2019 in Queensland the mother be permitted to relocate the children’s permanent residence to Town A,
Queensland (“Town A”).
LIVE WITH:
5. The children live with the mother.
6. When the children are not in the mother’s care pursuant to these orders the children be permitted to have liberal telephone communication and / or FaceTime communication with the mother as agreed between the parties and failing agreement each alternate day between 6.30pm to 7.30pm with the mother to initiate such telephone communication in the first instance and the father do all acts and things necessary to ensure that such telephone communication occur and provide the child/ren with privacy.
SPEND TIME WITH / COMMUNICATE WITH:
7. The children spend time with the father as agreed between the parties and failing agreement:
Prior to the children relocating to Town A
7.1. Each alternate weekend from after school or 3.00pm on Friday until before school or 9.00am on Tuesday (save and except for Christmas) with changeovers to occur on a school day the father shall collect the children from school at the commencement of time and return the children to school at the conclusion of time and on a non-school day the mother shall deliver the children to the father’s home at the commencement of time and the father shall return the children to the mother’s home at the conclusion of time;
7.2. From 3.00pm on 24 December 2018 until 3.00pm on 25 December 2018 with the mother to deliver the children to the father’s home at the commencement of time and the father to return the children to the mother’s home at the conclusion of time.
Upon the children relocating to Town A
7.3. Commencing term 1, 2019 and during each Queensland school term thereafter in the event the father travels to Town A then the children shall spend time with him (with such time occurring in Town A) on the third weekend from after school Friday until before school Monday with such time with such time commencing on the third weekend after the resumption of each school term provided that the children’s time with the father be suspended on the Mother’s Day weekend;
7.4. For the purpose of order 7.3 above the father shall provide the mother with written notice by way of text message and / or email of his intention to spend time with the children in Town A at least seven (7) days prior to such time occurring;
7.5. For ten (10) nights of the term 1, 2 and 3 Queensland school holiday periods from 1.00pm on the first Saturday of such holiday periods to 1.00pm on the eleventh day of such holiday periods;
7.6. In odd numbered years, the first half of the term 4 school holidays from 1.00pm on the first Saturday until 1.00pm on the midpoint Saturday of the holiday period;
7.7. In even numbered years, the second half of the term 4 school holidays from 1.00pm on 3 January until 1.00pm on the Wednesday in the week before the first week of term 1 in the new school year.;
7.8. That the children be permitted to have liberal telephone communicate and / or FaceTime communication with the father as agreed between the parties and failing agreement each alternate day between 6.30pm to 7.30pm with the father to instigate such telephone communication in the first instance and the mother do all acts and things necessary to ensure that such telephone communication occur and provide the child/ren with privacy.
7.9. At such other times as agreed between the parties.
SPECIAL OCCASIONS:
8. If Father’s Day falls outside the father’s time with the children in accordance with these orders, in the event the father travels to Town A then the children shall spend time with him (with such time occurring in Town A) on Father’s Day weekend from after school on Friday immediately prior to Father’s Day until before school Monday;
9. For the purpose of order 8 above the father must provide the mother with written notice by way of text message and / or email of his intention to spend time with the children in Town A at least fourteen (14) days prior to such time occurring;
CHILDREN’S SCHOOLING:
10. Forthwith the mother be permitted to enrol the children in school in Town A to commence in term 1, 2019.
11. The mother shall ensure that the contact details for the father are included on each of the children’s enrolment forms and once the mother has enrolled the children in school the mother shall provide confirmation to the father in writing via text message and / or email.
12. The mother shall do all things necessary to authorise and direct the principal of the children’s school to provide the father as he may request information in relation to the children’s progress and involvement in school activities and copies of all school reports, newsletters and other notices.
13. The mother and the father be at liberty to attend any event at the child/ren’s school that parents are ordinarily invited to intend including but not limited to parent/teacher interviews, school assemblies, concerts, any cultural events, sporting events, education, religious education, health and/or other occasions significant to the welfare of the child/ren where the attendance of either and/or both parent is to be reasonably expected.
14. Leave be granted to the mother to provide a copy of these orders to the child/ren’s school.
CHANGEOVERS:
15. In order to facilitate the children spending time with the father pursuant to these orders changeovers shall occur as agreed between the parties and failing agreement changeovers shall occur as follows:
15.1.When the father is spending time with the children in Town A on a school day the father shall collect the children from school at the commencement of time and return the children to school at the conclusion of time and on a non-school day the father shall collect the children from the mother’s home at the commencement of time and return the children to the mother’s home at the conclusion of time;
15.2.All other changeovers shall occur with the mother delivering the children to the father at McDonalds at Town D (“McDonalds”) at the commencement of time and the father returning the children to the mother at McDonalds at the conclusion of time.
INJUNCTIONS / RESTRAINTS:
16. Both parents be and are hereby restrained from discussing these proceedings with, or in the presence or hearing of the child/ren, or permit any other person to do so.
17. Both parents be and are hereby restrained by injunction from speaking about the other parent, or member of that other parent’s household, in a critical, derogatory, denigrating or undermining manner which would cause the child/ren to be alarmed, confused or placed directly or indirectly in any situation of possible conflict as a result of either parent’s behaviours.
18. The parents shall not criticise or denigrate the other parent or any member of the children’s extended family including step parents in the presence and / or hearing of the child/ren, and shall use their best endeavours to prevent a third party from doing so, including removing the child/ren from the area if required.
PAYMENT OF FEES TO THE INDEPENDENT CHILDREN’S LAWYER:
19. Within twenty one (21) days from the date of these orders or in a timeframe deemed appropriate by Legal Aid NSW the mother shall pay to Legal Aid NSW the sum of $5,675.25 being payment of the fees for the Independent Children’s Lawyer unless a waiver is granted by Legal Aid NSW.
20. Within twenty one (21) days from the date of these orders or in a timeframe deemed appropriate by Legal Aid NSW the father shall pay to Legal Aid NSW the sum of $5,675.25 being payment of the fees for the Independent Children’s Lawyer unless a waiver is granted by Legal Aid NSW.
OTHER ORDERS:
21. In the event that the Court deems appropriate then the Independent Children’s Lawyer shall meet with and explain the final orders to the children and the mother shall facilitate such meeting occurring prior to relocating to Town A. Both the mother and father shall be restrained by injunction from discussing with the children these Orders until after both children have met with the independent Children’s Lawyer.
OR IN THE ALTERNATE
22. The mother shall explain the final orders to the child/ren.
23. Leave be granted to the mother to provide a copy of these orders to the child/ren’s counsellors, psychologists and other treatment providers.
24. The Independent Children’s Lawyer be discharged.
Evidence of the Mother
The Mother’s oral evidence – summarised – was as follows.
In her evidence-in-chief, Ms Alvisio confirmed she was employed as a professional.
By reference to the Father’s Affidavit, the Mother was asked various questions. Her responses were as follows.
The Mother confirmed that she had not had any conversations with [X] in relation to the Father’s household, and further confirmed that she had never had several conversations that the Father purported to have discussed with her as set out in pars. 31, 34 and 37 of his Affidavit.
The Mother confirmed that she had a conversation with the Family Consultant in which she changed position about her staying in Town C if an Order is made that the children live with their Father.
Ms Alvisio outlined that she feels afraid to leave the family farm alone, that numerous threats have been made towards her, and that the people making those threats are known to her as being friends of the Father. Notwithstanding the fact that the Mother conceded that the threats are not specific to her, she says their main aim seems to be intimidating her. Worryingly, she said that the children have noticed that she does not go anywhere, and she says this is because she is afraid of confrontation that may occur. Indeed, her evidence was that there had been four specific occasions when she had been “stood-over” by persons close to or known to the Father. On the last such occasion – 31st July 2018 – the person “cautioned” the Mother about how the Father could “make life difficult for her in the future.”
She was also taken briefly to the Father’s Bankruptcy status, on which she stated that she believes the Father is discharged from bankruptcy in November 2018. She does not know where the Father obtained the funds that were used to purchase back the family farm.
In cross-examination, the Mother confirmed that [Y] enjoys horse-riding, and that she often rides a horse owned by a Ms K who lives in Town A.
The solicitor for the Father put to the Mother that she had told [Y] that she was going to live in Town A with her, and that [X] would remain living in Town C with the Father; the Mother denied this.
The Mother said that she did not have a conversation with the Father in relation to [X]’s reconciliation. The Father’s solicitor put that she did, and that she deliberately told the Father the wrong event time; the Mother denied this.
In relation to the alleged threats made against her, the Father’s solicitor asked for details, including who made such threats.
The Mother reiterated that the persons who made such threats were known to her, but that she did not want to name them because she has family living in Town C. She said that she believed someone who was present in the Court during the trial was friends with the Town C “mafia”. In response to clarifying questions from the Bench on this count, the Mother said that she does not have first-hand knowledge of the “mafia”, but that this assumption is based on information told to her by the Father when they were together. She confirmed the individuals who have threatened her in the past are part of that “organisation”.
The Mother confirmed that Mr L, her partner, lives in Town A. She further confirmed that his work predominantly involves trade work. She said that he picks up small, casual jobs when available. Ms Alvisio confirmed Mr L’s work is often seasonal and flexible, which makes it difficult to estimate how frequently he visits Town C. She confirmed, however, that he currently comes to Town C for approximately 4 or 5 days each fortnight. During this time, she said Mr L does not spend time with the children as he stays with the Mother at the maternal grandparents’ house when the children are spending time with the Father. She said Mr L briefly visits for a few hours in the evening up to 5 times per week during the work season.
The Mother stated that she was unhappy for the majority of her relationship with the Father, particularly from 2008 onwards. She said she remained in the relationship and had children with the Father because, in her words, she felt “stuck between a rock and a hard place”.
The Mother provided evidence in relation to the Father’s debts. She said the Father would often gamble his whole pay, and that she has found “thousands of dollars’ worth of TAB tickets” in the house. She said she could not recall him contributing to other expenses such as utilities, bills, food and the like. The Mother confirmed that the Father had held various positions in the past, including mowing lawns for residences though he would often ask the Mother, or the Maternal Grandmother, for financial assistance for things such as fuel for this.
Regarding the Father’s debts and bankruptcy, the Mother said that she recalled helping the Father complete his Statement of Affairs, but did not put any sum owing to the Maternal Grandparents on that form, despite providing evidence that they had loaned funds to the Father.
In relation to the alleged physical assault by the Father in mid-2006, the Father’s solicitor put to the Mother that it did not occur. The Mother confirmed that it did. She confirmed she did not contact anyone, including her family, after the alleged incident because she was afraid. She did not consider contacting the police, but did consider kicking the Father out of the house, however she said that the Father threatened to destroy the home.
The Mother confirmed that during the relationship the Father regularly went pig hunting. He received fines for this, and the Mother said these were in the sum of approximately $3,000.
The Mother said it was in the best interests of the children to relocate with her as she said they would be “better off” with her as she facilitates their education and cares for them. She said the Father is not an appropriate long-term carer as, among other things, he has potentially inappropriate friends and associates.
In relation to her opportunities for employment if she relocated to Town A, she said she has received a formal offer of employment of 4 or 5 days of work per week in a business. She said the owners of the business are friends of Mr L’s. She said she does not know how much she would earn, or the particulars of the position as she has not yet spoken with the owners about this detail.
The Mother confirmed that she has made enquiries about co-curricular activities on offer in Town A. She said that she is happy to arrange and enrol the children in these. Despite acknowledging that she has not attended the children’s sports matches over the last two years, she says she would commit to taking them to any sporting activity. She says she would be able to juggle this with any job she may have.
The Independent Children’s Lawyer cross-examined the Mother, and this evidence was as follows:
a)The job offer from the business in Town A remained on offer; the job would entail …, completing the rosters et cetera.
b)She has no plans to have any more children, and Mr L is aware of this.
c)The Mother acknowledged that she sometimes relies on the Maternal Grandparents to assist with the care of the children. She said the children have a very good relationship with the Maternal Grandparents. The Mother said she did not know why the Maternal Grandparents did not prepare and file an Affidavit in support; she said she just followed her solicitor’s advice in this regard.
d)In relation to the threats made against her, the Mother said that they occurred on three or four different occasions, and that it was a different person each time. She said the most recent threat occurred mid-morning on 31st July 2017; she said that her Father was present. She said she did not mention these threats to Ms M during the Family Report interviews as she was afraid.
e)The Mother confirmed that she has never suggested that Mr L is the children’s new Father, and confirmed the children ([Y] in particular) call him “Mr L” or “Mr L”.
f)The Mother said that she attends the children’s parent-teacher interviews at school. She is not sure if the Father has attended recently, and confirmed that she went to these meetings during the relationship.
g)She thinks the Father is a liar, and says the children have reached the same conclusion on their own as a result of the Father making promises to them and breaking them. She says she made a pact with the children in late 2017 to “not lie”.
h)The Mother confirmed that she understands the need to facilitate the children’s relationship with the Father if she is permitted to relocate with the children. She said she would allow phone calls and Skype, provide support, assist with changeovers and make the children available for the Father’s family events.
i)The Mother said that the children wish to move, but conceded this could just be the children telling her “what she wants to hear”. She said she has confirmed to them that they are able to do what they want, and will not force them or be angry regardless of what happens.
j)In relation to the children moving, the Mother said that [Y] is excited at the prospect of new friends, while [X] raised some hesitations. The Mother confirmed that she has spoken to [X] about her recent decision to move regardless of whether the children are permitted to relocate with her. She said [X] did not say much; she confirmed she has not had a conversation with him in relation to this issue since. The Mother believed [X] has not told [Y], though she is not certain of this. The Mother confirmed that she believed it is better to tell [X] sooner rather than later. When presented with the idea that moving to Town A in any event could be considered prioritising her own needs over those of the children, the Mother said that is not the case. She said she needs to survive the intimidation and threats made to her, and that her parenting will be detrimentally affected if she remains in Town C.
k)In relation to questions about the children’s counselling, the Mother confirmed the children have been seeing Ms N since early 2017. She said the purpose initially was for the children to have an independent person to talk to about the parents’ separation. She confirmed the children have not been in a few months, though they used to attend once every four to six weeks. She says she has not made any enquiries in relation to available counsellors in Town A as she is waiting on the decision from the Court.
l)The Mother confirmed that [X] has previously seen a speech therapist and an occupational therapist. She said that she has followed the advice of his teachers in this regard, and says they have advised that he does not currently require it and there is no ongoing need for it.
m)The Mother said that if the children are permitted to relocate with her, she is content for the children to spend all holiday time with the Father in Town C, save one week in the December holidays, and alternating years for the Christmas and New Year period. If the children remain in Town C, she would seek the opposite of this, as well as one weekend per month in the Town C region when she travels to visit her family.
n)The Mother confirmed that it is possible that she may take family holidays to Town C to visit her family. If the children relocate with her, she said she could make this trip with them and they could visit their Father then, notwithstanding that the drive is approximately 9 hours including stops, and she would need to take the children out of school for this.
o)In relation to equal shared parental responsibility or otherwise, the Mother conceded there is significant conflict and a lack of meaningful communication between her and the Father. She said she is optimistic that it will improve but is not expecting it to do so. She said she would also be content to put options to him and consider his opinion should the children live with her in Town A.
For my part, I found the Mother to be a strong, resolute and impressive witness. She was, in my view, properly candid in all relevant respects. I accept the Mother’s evidence.
Mr L, the Mother’s partner, gave brief oral evidence in support, thus:
a)Mr L confirmed that he is a tradesman.
b)He confirmed that he had received a Notice to Produce documents, and such a request was made over the phone just days before the commencement of the Hearing. He said he was unable to produce because he was travelling from Town A to Town C and did not have the materials with him. He confirmed that he had no issues with producing the records but, even if he were in Town A, it would be problematic as most of the documents were at the accountant’s, and it is extremely busy because it is “tax time”.
c)In cross-examination by the Father’s solicitor, Mr L confirmed the following:
i)He had a business-relationship with the Mother’s family as the Maternal Grandfather was a tradesman.
ii)He confirmed various aspects of his work, including that he has one contract in the Town C area over a six to eight week period, and another job over approximately two weeks. He has also undertaken some subcontracting work for various companies. He said that in a regular season, he will spend six to eight months per year working, and works at various businesses in Town A doing maintenance in the off-season.
iii)He confirmed that he would assist the Mother in caring for the children if they relocate to Town A; he would help as much and as often as he can with general parenting, including school work, pick-up and drop-offs et cetera.
iv)He says he lives in a five bedroom home, and that he and the Mother have discussed finances but do not currently have a joint account.
v)He confirmed the Mother’s job offer, and further that the position involves working in the business with a view to moving to a managerial position; the work would be during school hours.
vi)In relation to the Father, Mr L said he believes he is not a good man. When Mr L’s previous offences were brought up, he confirmed that he has been convicted of assault in the past, and has pleaded guilty to impersonating a police officer.
vii)Mr L said he had a good relationship with the children and said he would enjoy spending time with them if they are permitted to relocate to Town A.
viii)If the Mother is not permitted to move to Town A, he said it would put pressure on their relationship as he cannot move to Town C.
d)In cross-examination by the Independent Children’s Lawyer, Mr L provided the following evidence:
i)He confirmed his criminal history again, namely that he has been convicted of assault over twenty years ago, and that he had been the subject of two Apprehended Violence Orders, one in 1999 and the other in 2017, though the latter was only an application.
ii)He said the Mother had changed her mind about moving regardless of whether the children were permitted to relocate with her in the last two weeks as a result of people putting pressure on her.
iii)He confirmed that his understanding is that [Y] wants to move to Town A, and that [X] originally wanted to stay in Town C but has started to be swayed by the idea of moving.
iv)He confirmed he tries to say positive things about the Father to the children.
v)Mr L confirmed that he spends time with the children and does activities with them, including reading with [Y], spending time in the shed with [X] and riding motorbikes. He said that [Y] often calls him when she is not in the Father’s care, and that [X] will often join the call.
Mr L’s evidence was plain, unvarnished and completely candid. Indeed, in certain respects, he was very fairly positive about the Father. I accept his evidence.
Evidence of the Father
The Father’s oral evidence – summarised – was as follows.
In response to a question about his current business, he confirmed he currently employs four employees. He said his turnover for the past financial year was approximately $160,000, but that he has not yet completed a tax return for the 2017/18 financial year.
He said he has no concerns in relation to the Mother’s care of the children.
He agreed that the time the children spend with each parent during school holidays should be shared equally, if possible.
He confirmed he has withheld the children in the past, when no Court Orders were in operation providing for a time-with arrangements. He said a calendar was subsequently made.
Mr Barbaresco confirmed that he met Mr L through the Mother and her parents, but did not know how frequently Mr L worked in the Town C area. He confirmed that he did not want the Mother to visit Town A following the breakdown of the relationship because he was upset.
He confirmed he undertook the ‘parenting after separation’ course run through Marymead in mid-2017, though he said that he does not engage with their services on an ongoing basis.
He conceded that he has said some inappropriate comments to the children in the past, predominantly to [X], including that ‘he won’t let [X] go back to Town A and that ‘Mr L is not your Dad, you don’t need to do anything he says’. He said that he recognises that these comments negatively impacted the growing relationship between Mr L and [X], and that they were wholly inappropriate. Perhaps indicative of his general demeanour towards the Mother and her new relationship, he said that he does not regret saying them.
The Father confirmed he is now on better terms with Mr L than previously.
The Father confirmed that both he and the Mother arranged for the children to start seeing a counsellor. He said he went to see Mr L’s counsellor in May 2017, and that they had a discussion about how much information he shares with [X]. He said the counsellor said that he sometimes shares ‘too much’ and that it is resulting in [X] carrying the Father’s emotional burden. The Father confirmed that he received a letter from the counsellor to this effect.
I pause here to note what should be obvious: this action by the Father in placing such emotional and psychological burdens on his young son was (and is) completely inappropriate.
The Father was then asked several questions about his denigration of the Mother in front of the children. He insisted that he does not call the Mother names, and does not know where the children hear the various names for the Mother, some rude, that they tell her.
The Father confirmed that he shared with the children that Ms M’s report recommended that they stay in Town C. He conceded that this was inappropriate, but said that he thought it would ease their anxiety and apprehension. He seemed not to consider that it might increase it also.
In relation to the comment made by Mr Barbaresco to Ms M that Mr L had threatened to ‘beat him up’, he said it was true but that he did not feel any immediate threat when it occurred. He conceded that, despite this threat, he does not think the children are at any risk of physical harm in the care of the Mother and Mr L, and that he thinks they would take good care of the children.
Despite his bankruptcy, the Father said that he has no difficulties in managing his finances. He confirmed that his sister was his Power of Attorney. He further confirmed that he is in arrears with respect to his child support payments. He said the Mother was (and is) primarily financially responsible for the children, but that he contributed with things like school uniforms in lieu of formal child support payments.
The Independent Children’s Lawyer’s questions of the Father elicited the following evidence:
a)The Father agreed that he had made mistakes over the past few years, including saying the wrong things to the children. He said his anxiety often ‘gets the better of him’, though he is taking prescribed medication for his mental health. He accepted that he did not make mention of his mental health problems in his Affidavit material or during the interviews with Ms M, and conceded that it is a relevant consideration and that omitting this detail was an oversight on his part. For my part, I do not accept that the Father was or is quite as naïve or guileless as he often would have the Court believe. I do not say this in any way to suggest that the Father is or was deliberately misleading in his evidence.
b)The Father said that if the Mother moves to Town A without the children, he would likely hire a full-time nanny. He said he is not always available to take care of the children during his time with them, and often relies on the Paternal Grandparents, and has even relied on the Mother previously.
c)The Father said he would consider permitting the children to relocate with the Mother to Town A in two to three years when they can better understand what is happening and why.
d)He confirmed that [Y]’s view in relation to moving to Town A often changes, and [X] sits in the middle and is unsure.
e)The Father confirmed that he asked the children about their visit with the Independent Children’s Lawyer. He said he asked because he was curious to know what happened and what they said, and he conceded that asking them would have placed some pressure on them.
f)Mr Barbaresco agreed the children should have a positive relationship with Mr L, and accepted that he does not help to foster such a relationship.
g)The Father said that he has undertaken parenting courses for support, and that during these courses he learnt about things including protecting the children, the importance of having a good relationship with his ex-partner, and methods of disciplining the children.
h)The Father said he is prepared to work with the Mother to make decisions for the children. He acknowledged that current communication is unworkable and that it needs to improve. He suggested that the attitudes of both him and the Mother need to change. He said he would like to improve their relationship and that he will try to do his best in future in this regard.
For my part, the Father was a relatively uncomplicated witness. In my view he was, however, rather more calculating in certain respects in his conduct than he would have the Court believe. Indeed, the evidence before the Court regarding his attempt to obtain an apprehended violence Order against Mr L on 17th February 2018 was to the effect that the Father’s evidence in the Local Court was being used as a tool in the family law proceedings.
He showed little insight in some of his dealings with the children, placing undue and inappropriate burdens on them; indeed, his “over-sharing” especially with [X] would readily be considered a form of manipulation. His understandable concern about the Mother and children relocating plainly led him to over-step the mark in placing burdens on the children they should not have had to bear.
Evidence of the Family Consultant
At the conclusion of the evidence of the parties, there was insufficient time to cross examine the Family Consultant, Ms M. Consequently, with the matter going “part-heard”, her oral evidence was taken on 2nd November 2018. What follows is the evidence from her Report (dated 2nd July 2018; Exhibit B), then her brief oral evidence.
Evidence from the Family Report
First, I simply note the following paragraphs from Ms M’s Report. In noting them I simply seek to record certain sections of this Report that contain material of modest significance, for example because it presents primarily the evidence of the parties. Many of the matters raised here are expanded upon at some length later in the Report. Those more detailed sections are set out in full.
Accordingly, the paragraphs of the Family Report which I simply note are the account of Ms Alvisio at pars.5.1, 5.3 – 5.8, 5.11 – 5.16, 5.18 – 5.25. In the account of Mr Barbaresco to Ms M (which was often by way of rebuttal of the contentions of Ms Alvisio), the following paragraphs were of some moment: pars.5.27 – 5.30, 5.31 – 5.37, 5.44 – 5.46, 5.49 – 5.51.
Secondly, for somewhat similar reasons, I simply note those parts of Ms M’s Report that record her observations of the children with each parent, as well as each child’s interview with the Family Consultant: thus at pars.6.1 – 6.19.
In more detail, I now set out the entirety of Ms M’s comments against the Terms of Reference:
7.1 Whether the children are at risk of being exposed to any physical or psychological harm from being exposed to abuse, neglect or family violence
7.1.1 Mr Barbaresco denied Ms Alvisio’s allegations about situational couple violence that occurred about six years ago. I am not aware of any recent history of family violence or risk of the children being exposed to such behaviour. Although Ms Alvisio raises some care concerns, there is no risk of these children being neglected. Indeed, the extensive involvement of both extended families and [X]’s resistance to some of this, would suggest the children are likely to receive too much rather than too little attention and care. According to Mr Barbaresco, both of their extended families and Ms Alvisio have more recently engaged in heated verbal arguments. Such behaviour could be deemed to be abusive and is likely to make the children anxious, insecure and unhappy and should be avoided.
7.2 Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views
7.2.1 [X] was anxious about the possibility of moving to Town A and expressed concern about how often he would be able to see his father, if he did move. He did not want to leave his current school friends and said he would be relieved if he did not have to do so. [X] indicated some stress about being in the middle of his parents and poignantly wished they were still back together. [X] impressed as functioning at age level and as mature enough to express his views independently and for them to be given some weight. I did not consider [X] had been unduly influenced by either parent in what he said to me, although he was obviously well aware of his parents’ wishes.
7.2.2 [Y] was ambivalent about what she wanted to do and also concerned about the length of time she might have to manage not seeing her father if she relocated. [Y]’s concern about not being able to hug her father appeared to be very genuine. Although Ms Alvisio rang me the following day to say [Y] was concerned she had felt constrained during her interview and had really wanted to tell me that she wanted to move to Town A, [Y] might well have said this to please her anxious mother and could well still be ambivalent about the issue.
7.3 The relationship between the children and each other and with each of their parents and any other relevant person
7.3.1 While [X] displayed a normal degree of sibling rivalry towards his sister, [Y] used the test process to indicate an unusual degree of antagonism and sibling rivalry towards her brother. This was unfortunate and perhaps reflected her overall anxiety about this dispute. The children’s test results indicated they were positively attached with both of their parents. Both children were comfortable, if somewhat bored, when observed with their parents during the report process.
7.4 The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
7.4.1 Both parties pay lip service to the role of the other in the children’s lives. However, during the last couple of years, they have not been able to establish a cooperative post separation arrangement and their ability and willingness to address this must be viewed as highly questionable. Ms Alvisio’s wish to move so far away does not indicate any wish to share the children’s care with her ex-husband.
7.5 The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living
7.5.1 If the children relocate to Town A, they will inevitably see their father much less often than they do currently. Both children are currently anxious about this and may well continue to be so, until they are at least partially reassured by regular holiday contact and indirect contact in between. Their anxiety will not be allayed unless their father can accept such a decision and appear comfortable with it. This is most unlikely.
7.6 The capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs
7.6.1 Ms Alvisio raises both historical and current care concerns and Mr Barbaresco raises concerns about Ms Alvisio’s attitude to the children participating in extracurricular activities. In my opinion, both parties have struggled in some areas but overall both love and care for these children and are keen to do the best for them. Hopefully, both parents’ capacities and ability to focus on the children will improve with resolution of this dispute. There was a suggestion that at times Ms Alvisio had not put the children before her new partner. For example, Mr Barbaresco said he found it hard to understand why Ms Alvisio had not spent the last three Mother’s Days with the children, alleging that this year her partner was in town.
7.6.2 Although Ms Alvisio raised many concerns about Mr Barbaresco’s financial behaviour, including gambling, during their relationship, Mr Barbaresco advised he was doing well now. While undoubtedly such concerns contributed to the separation, they are of less concern now. Mr Barbaresco is at times assisted by his family with the children’s care when he is working. This is not inappropriate. Indeed, Ms Alvisio resides with her own parents.
7.6.3 Not unexpectedly given this dispute, Mr L presented a glowing view of himself and his relationship with Ms Alvisio and the children. Thus far his time with them has been sporadic, either in school holidays or at the maternal grandparents. Mr L’s ability to manage on a more full-time basis with two unsettled children is untested and Ms Alvisio will not have amount of family support she has now.
7.7 The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person)
See 7.6.1
7.8 The effect on the children of any family violence to which they may have been exposed
7.8.1 Exposure to family violence, including verbal abuse, leads to children being anxious. [X] certainly was not apprehensive around either parent, seeking to sit next to his father during the observation session. [X]’s anxiety was evident in his presentation and possibly in the problems he told me he was currently having at school.
7.9 The effect on the children if spending equal time, or substantial and significant time with each parent having regard to parent’s current and future capacity to implement such an arrangement, and communicate with each other and resolve difficulties that may arise
7.9.1 Thus far, these children have spent significant time with both parents and have maintained a positive relationship with both of them. Ms Alvisio might well be resistant and upset if she is required to continue this arrangement or implement a week about arrangement and her ability to communicate with Mr Barbaresco and resolve difficulties will not improve until she accepts any decision that she cannot relocate with the children.
7.10 The mental state of both parents in so far as it relates to parenting issues
7.10.1 Ms Alvisio has no mental health history and does not any mental health diagnosis. She is understandably anxious about the outcome of this dispute, given her wish to relocate. Similarly, Mr Barbaresco has no mental health history and does not meet the diagnostic criteria for any mental illness. He is also very anxious about this dispute.
7.11 The mental health/special needs of the children
7.11.1 [X] in particular impresses as an anxious child. He is currently seeing a counsellor and will be assisted by resolution of this dispute. Ms Alvisio indicated [X] had other special needs which could be met at the school in Town A. Hopefully they can be met in Town C as well.
7.12 The likely effect on the children of the proposed relocation to Town A and their views, any factors that may affect those views
7.12.1 See previous comments
Ms M’s recommendations were as follows:
As always, the question of relocation is a vexed one. Austin (2008) commented “Courts have always noted the difficulty of trying to reconcile competing issues and claims posed by relocation (p138)”, before going on to promote the need for an individualised case-by-case approach as well as an assessment of the risks and benefits.
8.2 Ms Alvisio argues that she wants to relocate to Town A with the children, to live with her partner, Mr L. Conversely, Mr Barbaresco argued that the children should remain in Town C and that his inevitably reduced time with them if they relocate will adversely impact on their relationship. He wanted to at least maintain the current amount of time the children have with him or preferably progress to a 50/50 arrangement.
8.3 A key consideration in any relocation matter is the benefit to children of having a meaningful relationship with both of their parents. There is no doubt that the children will inevitably be able to spend less time with his father if they relocate, rather than if they remain in Town C. The distance between Town A and Town C would mean that it would only be practical for [X] and [Y] to see their father during school holidays.
8.4 Both children are anxious about the prospect of seeing less of their father and neither expressed a strong wish to move.
8.5 The Court must decide how compelling Ms Alvisio’s wish to move is, how entitled she is to freedom of movement and of course, the impact of Ms Alvisio’s happiness, state of mind and mental health on her parenting ability. The sole reason Ms Alvisio wants to move is to live with Mr L, a relatively new partner. She was obviously impressed by his house and the lifestyle he could offer.
8.6 Conversely, Mr Barbaresco has a business in Town C and establish lifestyle there. He pointed out that it would be difficult for him to relocate his now successful business. If the boys are permitted to move, there will be costs associated with them maintaining their relationship with their father and significant travel and the pressures this entails.
8.7 Ms Alvisio impressed as determined to pursue her wish to relocate. However, Mr L has been spending significant time in Town C and appeared to work all over New South Wales, meaning Ms Alvisio and the children would be alone in Town C for significant periods of time.
8.8 Mr Barbaresco has been significantly involved with the children which might mitigate against them being allowed to move.
8.9 Several options present themselves in this matter, including that Ms Alvisio relocates without the children. She was not considering doing this. The next option is that the children are allowed to relocate and returned to Town C during the school holidays to see their father. Not surprisingly, Mr Barbaresco totally discounted the idea of any weekend contact, noting that Town A was 1,300km away. The other options are that the children remained in Town C either in the current arrangement or in a week about arrangement. Mr Barbaresco advocated a week about arrangement, arguing that the children needed to engage in more extra-curricular activities than they did at present. Because of his business, Mr Barbaresco said he could not move to Town A himself. He reported that his business was currently going well.
8.10 On balance, given the difficulty of maintaining the children’s relationship with their father, the children’s wishes, the sole reason why Ms Alvisio wants to relocate and the relative newness of her relationship with Mr L, I recommend [X] and [Y] remain in Town C in the current arrangement.
8.11 If the court decides the children are to remain in Town C, provision for each child to have separate time with each parent might benefit them.
Oral Evidence of Family Consultant
Ms M’s oral evidence was as follows. Her primary interlocutor was Counsel for the ICL. The Father, who was by force of circumstances self-represented at this juncture in the trial, asked no questions.
At the outset, from the Father’s evidence, Counsel for the ICL noted that he regularly probed the children for information (a) about what was happening in the Mother’s household, and (b) regarding what the ICL was doing. The Father also told them about the contents of the Family Report. Ms M agreed that these actions of the Father placed pressure on children. It was also noted that the Father had completed a parenting course, which confirmed that these actions were inimical to good parenting; notwithstanding this information and instruction, he continued with this conduct.
Ms M agreed that it was important for the children to have a good relationship with the Mother’s partner, and that the Father should encourage and promote this relationship. However, the Father does not promote or support that relationship.
It was confirmed to Ms M that the Father has had some issues in the past with mental health, such as anxiety, for which he continues to take medication (he had previously been diagnosed with depression). No such matters, including his medication, were put in evidence before the Court. The Father said that he simply “forgot”; nor did he advise Ms M of these things. She said that his medication seemed to be doing well given his “normal” profile. For my part, his lack of candour in this regard was somewhat concerning.
Ms M said that, in her view, a cautious approach should be taken regarding the views of either child because they were (a) caught up in conflict, (b) understandably distressed by the conflict, (c) relatively young, and (d) necessarily influenced by the conflict between their parents.
In relation to (a) the Mother’s claims of intimidation from the Father and his family and friends, and (b) some of these family and friends being in Court, Ms M said that it was uncommon for a party to have such support during Court proceedings, but opined further that it might show the Father’s need for support.
The following general propositions were put to Ms M for her comment:
(a)The Mother and the children had a “pact” whereby they agreed not to lie to each other;
(b)This could suggest or indicate that either the children and or the Mother have concluded that the Father lies;
(c)The Mother has told [X] that she was going to move to Queensland whether the children went with her or not; and
(d)The Mother confirmed that she felt threatened and intimidated by being approached by what she termed “mafia” figures.
To these matters, Ms M generally said that to relocate without the children could indicate the Mother, at times, putting her interests and the interests of her new partner above those of the children. At the same time, the relocation could be seen as the Mother’s response to feeling threatened, a form of self-preservation.
Indeed, it was suggested by Ms M that the Mother’s relocation, and doing so without the children, could indicate how negatively impacted her parenting was in Town C.
To these matters generally, Town C said that she could not support or endorse a position where the children were deprived of their Mother’s support; equally, she could not, and would not, support the Mother moving without the children.
Further, given the ages of the children, Ms M said that she would be concerned, if not anxious, for the children if their Mother moved without them. Likewise, if the relocation was sanctioned and the children went with the Mother, much would depend on whether, and if so to what degree, the Father supported the children in such a move.
Ms M said that she was not confident that either parent could (or would) support the children in their relationship with the other parent.
Ms M said that if the Mother did not relocate, the children should live primarily with the Mother. In my view, this was a very telling comment. It indicated very clearly the Family Consultant’s view as to who was best placed to care for the children and obviously with whom they should primarily live. Somewhat rhetorically, it leads me to ask: if that is the recommendation regarding the best interests of the children regarding their living situation, why should not the same position apply if the Mother was to relocate. In general terms, in my clear view, the same response must also apply: that is, the children’s primary residence should be with the Mother.
Ms M acknowledged the impracticality of the children spending regular time with each parent if they moved to live with the Mother in Queensland.
Regarding “parental responsibility”, Ms M had little light to shed. She confirmed that the parents communicated poorly, and that there was only a remote chance this would improve, even after the litigation ended. Indeed, in making an Order as sought by the parents for equal shared parental responsibility, she said that it could increase difficulties. In such a case, Ms M said that it might be advantageous to minimise conflict by providing a sole parental responsibility Order, though she noted that there are, of course, risks either way.
Ms M said that, in her view, given the distance involved, for “school-holiday time” it would be better for the non-resident parent to travel rather than for the children to do so. In this regard, the Mother had indicated that she would be content to travel back to Town C to see some members of her family, which would obviously assist certain matters. Ms M agreed that this was a useful option.
Ms M generally agreed that the Father’s actions were at the very least unhelpful when he (a) told the children that the Mother was relocating, (b) took the children to the police station and made a complaint against the Mother’s partner (Mr L), which led to the Father’s Application for a Domestic Violence Order against Mr L being dismissed. Likewise, the Father telling [X] that there was no telephone reception in Town A was very unhelpful.
For my part, in the light of the oral evidence of the parties, and in the light of the cautious evidence of Ms M, I have more concerns than Ms M about the Father’s parenting capacity, especially in being able to provide relevant emotional support for the children. Similarly, I have significantly less concerns about the Mother’s parenting capacities than does Ms M. In my view, the Mother was a very credible witness.
Submissions on behalf of the Applicant Mother
The Mother’s submissions, filed 23rd November 2018, were as follows (internal citations omitted):
1.1) The mother seeks to relocate with the children from Town C NSW to Town A, Qld.
1.2) Relocation cases are not a special class of cases. The following principles can be derived from the case law:
1.2.1) The best interests of the children are the paramount consideration but not the sole consideration;
1.2.2) There is no onus of proof on either party;
1.2.3) The mother does not need to show compelling reasons for the relocation;
1.2.4) The Court is not limited by the proposals of either party;
1.2.5) The court has the power to make a coercive order requiring a parent to stay or to relocate.
1.3) The mother gave clear and cogent evidence of her intention to relocate without the children. The Court can be satisfied that:
1.3.1) The mother has formed a relationship with Mr L and they are engaged. The mother wishes to relocate to pursue that relationship.
1.3.2) The mother has been subjected to intimidation and pressure from the father (and people acting on the father’s behalf) to remain in Town C
1.3.3) The mother believes the father monitors her movements in Town C. She is reluctant to leave the home in which she resides with or without company. The mother feels isolated in Town C and it has become intolerable for her to remain living there.
1.4) The mother was cross-examined at length about her proposal to leave Town C without the children. She could not be shaken from her belief that the intimidation and pressure from the father would continue unless she moved from Town C.
1.5) This is not a case in which rare or extreme factors are present to warrant the Court exercising its coercive powers to require the mother to remain in Town C.
2) SALIENT SECTION 60 CC FACTORS
2.1) Primary Considerations
2.1.1) Both parties agree that the children have a meaningful relationship with each parent and will benefit from continuing those relationships.
2.1.2) The court can confidently find that the father (and others acting on the father’s behalf) subjected the mother to psychological harm by intimidating her and pressuring her post-separation. This conduct continued even during the final hearing and included:
2.1.2.1) The father taking members of his family to the Family Consultant interviews when he knew the mother felt uncomfortable in their presence;
2.1.2.2) The father being accompanied at the trial by members of his family and a person whom the mother described being associated with the Town C Mafia;
2.1.2.3) The father’s sister openly and actively instructed the father’s solicitor to ask questions of the mother during cross-examination.
2.1.2.4) During the course of the trial the father and his family were audibly dismissive of parts of the mother’s evidence and did not cease this conduct until directed to do so by His Honour.
2.1.3) The court can also confidently find that the father caused psychological harm to the children post-separation by speaking negatively of the mother to them and engaging them in the adult dispute. The father’s conduct included:
2.1.3.1) Telling the children of the mother’s plans to relocate without the mother’s knowledge and casting the relocation in a negative light.
2.1.3.2) Taking the children to his solicitor and advising them that he would stop the mother relocating;
2.1.3.3) Telling the children that if they relocated they would not see him or speak with him again;
2.1.3.4) Taking the children to the police station where he requested that the police apply for ADVO on his behalf against Mr L.
2.1.4) The father continued to cause psychological harm to the children after completing a parenting course in mid-2017 (which he described as a “revelation”) and after being advised by the children’s counsellor, Ms N, in May 2017 of the impact his conduct was having on the children.
2.1.5) The Court cannot be confident that the father has insight into his behaviour and the effect his behaviour has on the mother and children. The Court could not be confident that the father will cease this conduct once the proceedings are concluded.
Additional considerations
2.2) 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 to the child's views
2.2.1) The children are 10 and 9 years of age respectively. They have from time to time expressed views about relocation. The children have been pressured by the father to express certain views. The children complained to Ms N about being “earbashed” by the father and said they were worried about expressing any views that were contrary to those he wished them to have. In the circumstances, little weight can be given to the children’s views.
2.3) The nature of the relationship of the child with each parent and other persons
2.3.1) The children have a close relationship with the mother and father.
2.3.2) The children appear to enjoy the company of Mr L. Mr L spoke warmly of his relationship with the children and impressed as child-focussed.
2.4) The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i) to participate in making decisions about major long-term issues in relation to the child; and
ii) to spend time with the child; and
iii) to communicate with the child;
2.4.1) Despite the poor relationship between the parents, the mother and father have been able to come to agreement that the children see a counsellor and were able to come to an agreement about the care arrangements for the children (although the father was highly critical of the mother for preparing a diary of the days the children were to spend with him even though the days were the same days each week).
2.5) The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
2.5.1) At the time of the final hearing the father was in arrears of child support (equivalent to approximately 9 months’ of his administrative assessment). The Court could not be confident that the father will be in a financial position to repay his child support arrears in the foreseeable future or that he would be able to financially support the children if the children were in his full-time care. The mother however, has demonstrated that she is able to prioritise and meet the children’s financial needs.
2.6) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) either of his or her parents; or
ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
2.6.1) The proposal of either parent requires a change for the children
2.6.2) Whilst the mother’s proposal would expose the children to greater change, she is the parent most capable of assisting the children to positively navigate change.
2.7) The practical difficulty and expense of a child spending time with and communicating with a 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;
2.7.1) The same practical difficulty and expense arises on either party’s proposal.
2.8) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs;
2.8.1) The mother has demonstrated a greater capacity to provide for the needs of the children.
2.8.2) Ms M gave evidence that she would not be confident that the father would be able to meet the emotional needs of the children if the children remained in Town C in his care and the mother relocated.
2.9) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
2.9.1) The father has demonstrated a poor attitude to the responsibilities of parenthood. The mother, by contrast, is the more child-focussed parent and the one most likely to promote a positive relationship between the children and the other parent.
2.10) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
2.10.1) This is a case in which it is preferable to make final orders.
3) PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
3.1) Both parents seek an order for equal shared parental responsibility. The ICL seeks an order that the mother have sole parental responsibility. The mother is not opposed to the ICL’s proposed order, provided the Court is satisfied that the father has been given procedural fairness.
4) HOLIDAY TIME
4.1) The mother is not opposed to orders for holiday time being made in accordance with the ICL’s proposal. The ICL’s proposal is made in light of Ms M’s evidence that the children will benefit from more leisure time with the parent with whom they live and their local peers.
Submissions for the Respondent Father
The Father’s submissions, filed 3rd December 2018, were as follows:
1.1) The Mother initially sought to relocate the children from Town C NSW to Town A Qld but conceded that if the Court did [sic: “not”] allow such a move then she would continue to live in Town C and attempt to make the current arrangements work.
1.2) By 9 August 2018, the first day of the Hearing the Mother had changed her position to the effect that if the Court did not allow her to relocate with the children then she would leave Town C with her new partner and allow the children to live with the Father.
1.3) It is accepted that relocation cases are not a special class of case.
2) Section 60CC Factors:
Primary Considerations sub-section 60CC(2)
a) The benefit to the child of having a meaningful relationship with both of the child’s parents
2.1) There is no dispute as to the benefit of the children having and continuing to have a meaningful relationship with both parents.
b) The need to protect the child from physical and psychological harm, from being subject to, exposed to, abuse neglect or family violence
2.2) The relationship between the parties is one of his verbal conflict. The evidence from all witnesses was that the parties find it difficult to communicate. The description of the relationship being “toxic” was appropriate.
2.3) Despite the toxic relationship between the parents themselves the children were protected, at least in part, by other family members and the Town C community at large. The children feel safe and comfortable there.
2.4) Despite vague claims of domestic violence some six years ago, which was denied at trial, there does not appear to be any issues of family violence between the Mother and Father, or toward the children.
2.5) It was however concerning that Mr L admitted to having committed serious criminal offences such as assault and impersonating a Police officer which the Court must give some weight to as being a potential risk to the children.
2.6) Ms M expressed concerns about the new relationship and it being untested. This extends to the risk of the unknown in that the Mother and Mr L have not lived together outside of the home of the maternal grandparents.
2.7) The ICL has submitted that the children would be at risk of psychological harm if they were to live with the Father however that may overstate the position as in the view of Ms M the situation following these proceedings would most likely settle down following this litigation and this in turn would reduce the tension of the parties. It would also remove any need for either parent to discuss these proceedings with the children or otherwise engage them in further contest between them.
2.8) The ICL’s submission regarding the Father’s views being unlikely to change is simplistic and as the old adage goes “it takes two to tango”. If it can be put with any force that the Father’s views are resistant to change then in [sic] can be put with equal force that the Mother has done little if anything to defuse, de-escalate or repair the toxic relationship that now exists.
2.9) The position can be summed up by Ms M’s response to the following question posed about promoting the children’s relationship with the other parent: “On balance do you have a view as to which of the two parents would be more successful for the children in that regard?”. “Probably not. I’m not sure that – while this conflict has been going on, I’ve not been confident about either parent’s ability with the – you know, to promote the other with the children”.
Additional Considerations sub-section 60CC(3)
a) Children’s views
2.10) Ms M expressed concerns in her report about the anxiety of the children with respect to a possible move to Town A. It remained a concern of hers when cross-examined. Given the fact that the children had formed strong family and social bonds within the Town C area and were progressing relatively well at school Ms M could not be convinced that relocation would achieve a better outcome for the children.
2.11) [X] was clearly concerned about the proposed move and whilst [Y] may not have understood the full significance of such a move, she remained concerned about not being able to give her father “a big hug”.
2.12) The view of the children, as shared to Ms M was one of children who clearly wanted to stay in Town C and were anxious about such a significant change.
2.13) It would be improper to simply disregard the views of the children entirely in light of their ages.
b) The nature of the relationship with each parent and other persons:
i) Each of the child’s parents; and
ii) Other persons (including any grandparent or other relative of the child)
2.14) It is not in dispute that the children have a close and loving relationship with each of their parents. The children also have strong attachments to their cousins in Canberra and both sets of extended family who live within 4 hours drive of Town C.
2.15) Whilst it is accepted that Mr L has a developing relationship with the children this relationship is untested when it comes to living with the Mother and the children in a household on a regular basis and without the assistance of the maternal grandparents.
c) the extent to which each of the child’s parents has taken, or failed to take the opportunity:
i) To participate in making decisions about major long-term issues in relation to the child;
ii) To spend time with the child; and
iii) To communicate with the child.
2.16) It was Ms M’s recommendation that it was in the best interest for the children for both parents to live in relatively close proximity. Given the matters set out in her report Ms M did not appear to be convinced that the Mother would in fact leave if the Court found it was in the best interest of the children to remain in Town C.
2.17) Despite significant questioning on the topic Ms M could not be persuaded to change the recommendations in her report regarding her lack of support for the proposed relocation.
2.18) Ms M was clearly in favour of the children remaining in Town C. The children being separated by such distance and for such time from one parent would be a substantial and significant change for the children.
(ca) the Extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
2.19) The Mother is an undischarged bankrupt who in her evidence could not explain how she intended to provide for the children if she was permitted to relocate with them. The Mother claimed to work but was unable to articulate under cross-examination details of her current employment or salary. On the evidence available before the Court the Mother does not have the financial resources, either in Town C or Town A to financially support the children. The only reasonable inference the Court could draw from the evidence of the Mother is that she is reliant on the charity of her parents, both for accommodation and financial assistance. There is no evidence before the Court as to whether this assistance would be continued in the future or what form it may take. Indeed it simply creates further uncertainty for these children.
2.20) Mr L was non-committal on how the children would be supported financially.
2.21) The Father provided evidence that he paid for clothing, footwear and other items without requesting any partial reimbursement from the Mother.
d) likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
i) Either of his or her parents; or
ii) Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living:
2.22) Clearly the separation of the children from either parent will be extremely upsetting to them.
2.23) The children currently reside in the home of the maternal grandparents. It is perhaps surprising that they have not provided evidence in this matter or otherwise sought to be joined or heard. Both parties acknowledged that the children have close relationships with both set of grandparents, cousins and extended family. The proposal of the Father would allow children to maintain, strengthen and build these relationships as they grow. The proposal put forward by the ICL and the respective submissions of the Mother and the ICL do not even consider the effects of the relocation on the children and these other important and relevant people in the lives of these children which include school and sport friends. The Father stated in his evidence that he would continue to encourage the children to spend time with their maternal grandparents if they were to remain in Town C. Neither the Mother nor ICL have not put forward any proposal that would promote or even maintain these relationships.
2.24) Town A is at least a one-day drive from both Town C and Canberra and it would significantly reduce the time the children get to spend with both sets of grandparents, cousins and extended family. On the evidence before it the Court could not be satisfied that the children will spend any significant time with either side of the family if the Mother is permitted to relocate with them. Contrary to the submissions of the Mother, this is not a problem if the children remain in Town C with the Father. Even if the Mother does obtain employment in Town A, it was clear that Mr L spent significant periods of time throughout the year in the Town C area and conceivably the Mother could spend as much or as little time in the Town C area as she pleased. It would also allow the children to continue to enjoy their relationships with their extended families and friends.
e) the practical difficulty and expense of a child spending time with and communicating with a 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;
2.25) The Mother is an undischarged bankrupt. There is no evidence before the Court that either party could afford the arrangements proposed by the ICL which would involve frequent travel. This is a significant obstacle.
2.26) The orders proposed by the Mother and the ICL conflict with the view expressed by Ms M and are simply impractical given that the Father owns and operates his business in the Town C area.
2.27) As previously stated Town A is at least a one-day drive from both Town C and Canberra and it would significantly reduce the time the children get to spend with both sets of grandparents, cousins and extended family. On the evidence before it the Court could not be satisfied that the children will spend any significant time with either side of the family if the Mother is permitted to relocate with them.
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[12]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[12] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Finally, I consider – briefly – such matters not otherwise addressed in these reasons that might be said to arise out of “relocation cases.”
In F v F, I set out a summary of relevant principle drawn from High Court and Full Court authorities in relation to relocation.[13] That summary is set out below, but with an edited selection of internal citations quoted; thus:[14]
a)In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; cf. Powell v Ptolemy, [48]).
b)The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[15] Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; cf. Goode v Goode, [72]).
c)Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]. Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[16] Freedom of movement, however, takes second place to the paramount interests of the child.
d)There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether relocation is, or is not, in a child’s best interests.
f)Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; cf. M v S and “virtual visitation” [93].
g)In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171] & [172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
[13] F v F (2008) 38 Fam LR 52 at pp.56-58 [7]. A more abbreviated summary is provided by Ryan J in Sheldon & Weir (No.3) [2010] FamCA 1138at [244] & [245].
[14] It will be seen that, in the light of Full Court authority which confirmed that the earlier decision of A and A (2000) FLC ¶93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted. See Hepburn & Noble (2010) FLC ¶93-348 at [100], and Cales & Cales (2010) 44 Fam LR 376 at [139].
[15] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[16] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85], as well as the comments of Bryant CJ and Finn J in Taylor & Barker (2007) 37 Fam LR 461 at [84] – [113].
This summary of principle must, of course, be understood in the context of the ‘prescribed legislative pathway’ or scaffold in Part VII of the Act, to which I have already referred. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
To this instruction, I note too the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours said, at [60]:[17]
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
[17] See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
I draw attention also to the comments of the Full Court in Blanding, which involved a parent seeking to relocate, and being permitted to do so.[18]
[18] Blanding v Blanding (2017) 55 Fam LR 218.
In the course of considering at some length the grounds of appeal, the plurality (Ainslie-Wallace and Berman JJ – with whom Finn J generally agreed) said, at [141] – [142]:[19]
[141] There was thus ample evidence on which his Honour could conclude that the mother’s happiness in not relocating would not only affect her but also the children. We do not then accept the submission that this was a factor of no relevance to his Honour’s determination.
[142] This ground devolves to an argument that his Honour apportioned disproportionate weight to this matter against the other countervailing considerations. As his Honour’s reasons make clear, this was not the sole basis for his determination that the order sought by the mother should be made. However, in his view, it was the most important. The weight or importance to be placed on evidence is a matter exquisitely within the preserve of the trial judge and we are not satisfied that in giving it the weight he did, his Honour erred.
[19] See also the Full Court’s comments at [148] regarding issues of “weight” given by the trial Judge to certain evidence. The Court there said that such matters were “entirely a matter for his discretion.”
Then the Court said further, at [153] and [159] – [160]:
[153] It was contended that his Honour should have “indicated what weight he places on their views and why”. We reject this submission, which carries with it the suggestion that a judge, in considering a range of issues as part of the exercise of a wider discretion in relation to the best interests of children, is in some way required to indicate “weight”. Such a submission misstates the very nature of the weighing process. His Honour clearly rejected the concern that the father had influenced the children directly but was open to the proposition that being aware of his opposition may have an influence on their views. In our view nothing further was warranted nor needed to be said.
…
[159] His Honour carefully and clearly considered the father’s desire to remain a part of the children’s lives. He was conscious of the additional time spent by the father by being involved with the children’s after school activities. His Honour found that the children had a close and normal relationship with the father and the mother [20]. He further took into account that a move to the Central Coast will change the children’s circumstances and that they will see less of their father than before [25].
[160] His Honour referred to and took into account the difficulty and expense of the father spending time with and communicating with the children at [26]. He noted that while it would not prevent them from communicating, it would be more difficult and expensive [27]. His Honour further considered these issues when determining the advantages and disadvantages of the parties’ proposals [44(a)] to [44(e)].
Finally, at [166], the Court said:
In any event, the apportionment of weight or importance to evidence is a matter for the exercise of the trial judge’s discretion. As we have already said, the bar to appellate intervention in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
Consideration & Disposition
I turn to the detail of the legislative scaffold in Part VII of the Act, and s.60CC(3) in particular, in the light of the evidence before the Court. In the summary that follows, I follow each of the “considerations” sequentially, unless otherwise specified, and each comment or observation, also unless otherwise specified, should be taken as a formal “finding” by the Court.
I should note at the outset that I generally accept the outline of the evidence given by the ICL, and her balanced consideration of the fundamental issues upon which the case ultimately turns. I accept her submissions in relation to the consideration of the legislative scaffold.
In my view, as delicately balanced as this case is, ultimately, (a) given how clear were the Family Consultant’s comments that the children should live primarily with the Mother because she provides a more sound emotional base for them (which the Father does not and whose full-time parenting capacities have not been tested), and (b) given how firm was the Mother’s evidence, under sustained questioning, regarding the oppression she felt from the Father, his family and his associates in the Town C region, her ability to co-parent the children satisfactorily in that area risked being significantly compromised.
Likewise, in my view, the Mother is entitled – not as a right, but rather as a means to enriching her own life and bringing her a degree of happiness and fulfilment that has not been present for some time - to pursue and to nourish her relationship with Mr L. This is another factor that, in my view, will lead to the Mother being released from what I will call her (not deliberately created) “emotional entrapment” (my term) in the Town C region. Once liberated from it, she will be even more capable of caring for and supporting the children in the relocation to Town A. And for my part, I do not share Ms M’s pessimism about the Mother promoting the children’s relationship with the Father. Having regard to the Mother’s evidence, in my clear view she will promote it.
I turn then, as promised, to the legislative scaffold/pathway by way of summary and consideration of the evidence, noting again that I follow here sequentially the “considerations” in s.60CC(3), unless otherwise specified.
The “views” of the children, given their ages, while relevant, are not of such significant weight as to be decisive or determinative. There is no doubt that they wish to spend regular time with both parents whom they love dearly. I note too the evidence of Ms M to the effect that the children’s views have been coloured very significantly by being embroiled directly in the conflict between their parents.
In this regard I note that among the material produced under subpoena from the children’s counsellor, Ms N (all of which became Exhibit C), there is a general letter, dated 21st May 2018, in which she noted how “conflicted” [X] was, in feeling torn between the wishes of his parents. The letter also noted how influenced [X] was by the views of his Father in particular. The letter also recorded that [X] felt like he was carrying both his and his Father’s emotional burdens because the Father would discuss with him issues concerning the separation of the parents, “custody and marital issues.” Such matters are, in my view, completely inappropriate for the Father to canvass with [X]. Not only did it place [X] in an untenable position, but it also placed far too great a burden on a young person who otherwise did not have the wherewithal to bear such matters. It showed significant lack of insight by the Father.
Regarding the considerations in s.60CC(3)(b), (c), (ca) and (g), there are certainly some vulnerabilities that need to be taken into account regarding the children. The primary concern here, in my view, is how much the children have been involved in the parental dispute. Clearly, this has deeply affected each child in different ways. The children have a close relationship with both parents, and (it would appear) close relationships with their extended family on both sides. Their relationship with Mr L is developing but it would appear, certainly in relation to [Y], to be quite close given her “pet” name for him.
There is some question mark over the Father’s involvement in, and capacity in relation to, matters regarding the children’s schooling. It is no criticism of him that he has some difficulties with reading (he needed assistance during the trial which came very willingly from his sister). And there was little if any challenge to the Mother’s evidence that the Father is significantly in arrears in relation to child support payments. This said, there was equally little challenge to the Father’s evidence that he regularly bought school and other clothes for the children.
In relation to consideration (d), I have already noted Ms M’s evidence that if the children remained in Town C, they should remain in the Mother’s primary care. I have also noted that, in my view, it must follow from this that if they should remain in the Mother’s care in Town C, (a) there is little or no relevant evidence for them to be in their Father’s primary care (indeed, there is evidence to the opposite effect), and (b) they should remain in their Mother’s primary care wherever she lives, provided of course that appropriate Orders are made for them to spend regular time with their Father.
The “practical difficulty and expense” of a child spending time with and communicating with the non-resident parent (consideration (e)) is patently a significant factor here. The evidence indicates that the Mother will return to Town C regularly to visit, which will enable the children to spend time with their Father and other family members. In this regard it is imperative to recall the comments of Kay J in Godfrey & Sanders, noted earlier in these reasons, which refer to a relationship being “meaningful” as opposed to “optimal”. This is certainly critical to recall in the circumstances of this case given the distances involved here. I have little doubt that with the aid of various electronic means the children and their Father will be in very regular contact with each other in between visits by him (when he can) to Queensland) and by them to Town C.
I accept the ICL’s submissions regarding consideration (f) (which, in certain respects, apply similarly to consideration (i)), notably in relation to doubts over the capacities of both parents. Of particular moment are the following matters: (i) the Father’s full-time parenting capacity is essentially unknown; (ii) the Father indicated in his evidence that he would be reliant upon both his family for support and the use of a “nanny” were the children to be in his full-time care (and he remained running his business full-time), and (iii) the Mother has clearly (on her own evidence and that of the Family Consultant) been able to provide the greater emotional support for the children than has the Father, and has likewise been the parent primarily responsible for promoting and supporting the children at school.
In my view, however delicately balanced, the Orders now to be made by the Court are in the best interests of the children. They are the ones least likely to lead to further litigation.
Conclusion
Earlier in these reasons I noted the following comments from two regularly cited authorities. Firstly, it is important to recall Kay J’s important observation in Godfrey v Sanders, at [36], where his Honour said (emphasis added):[20]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[20] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[21]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[21] M v S (2008) 37 Fam LR 32.
It is also important to recall the observations from the majority judgment of Bryant CJ and Finn J in Taylor v Barker at [109] and [113], where their Honours said:
[109] Happiness is a state of mind to be inferred from evidence…
…
[113] It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment…
In the present matter, the “happiness” of the Mother does not, strictly speaking, need to be “inferred.” It (or the lack of it) was plain for all to see during the hearing, and plainly referred to by the Family Consultant albeit (as it seems to me) with a degree of equivocation. It was certainly, plainly stated by the Mother, whose evidence I accept.
The Mother does not need to provide “compelling reasons” in order to relocate. Her “emotional entrapment” in Town C in my view is reasonably well established. She should be permitted to pursue and to nourish her relationship with Mr L in Queensland. To be so liberated and sanctioned, in my view, will empower and re-invigorate her parenting for the benefit of both herself and the children. Likewise, accepting that it is not his first choice, I have no doubt that, as he said he would, the Father will make every effort to make the more distant parenting relationship with the Mother, and most importantly with the children, work profitably for the benefit of all.
In making an Order for equal shared parental responsibility, albeit in a limited way, this requires the Court to have regard to the terms of s.65DAA, noting in particular that all relevant terms are subject to the best interests of the children and the stipulations by the High Court in MRR v GR.[22] Given that the Court here is authorising the Mother to move to Queensland with the children, neither an equal time, nor a substantial and significant time, arrangement is reasonably practicable. To consider otherwise would not be in the best interests of the children.
[22] MRR v GR (2010) 240 CLR 461.
For my part, absent any other agreement in writing between the parties, the Orders proposed by the Mother are in the children’s best interests.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 17 January 2019
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