ANDREWS & EMERY
[2017] FCCA 736
•19 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDREWS & EMERY | [2017] FCCA 736 |
| Catchwords: FAMILY LAW – Parenting matter involving very young children – Mother’s proposed relocation to Perth for medical reasons based on her “subjective belief” of the services available to her – lack of medical and other evidence to support Mother’s case in circumstances where the Mother’s drug of choice for treating her multiple sclerosis is also available in Canberra (and Sydney and throughout Australia) – best interest considerations for the children remaining in Canberra – Mother’s evidence was that she could and would fly to Perth for short blocks of time while receiving treatment and leave the children with the Father – good co-parenting relationship between parents – Mother’s parents continue to reside in Canberra with only the Mother’s sister living in Perth none of whom gave evidence at the trial – consideration of Jones v Dunkel in the light of the Mother’s failure to provide wide range of relevant evidence from her family and her treating medical practitioners. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1) & (2), 60CC(2)(a), 60CC(3)(ca), (d), (e), (f), 65DAA |
| Cases cited: Jones v Dunkel (1959) 101 CLR 298 Cross on Evidence, J.D. Heydon (Tenth Australian Edition) (Sydney: LexisNexis Butterworths, 2015) |
| Applicant: | MR ANDREWS |
| Respondent: | MS EMERY |
| File Number: | CAC 870 of 2015 |
| Judgment of: | Judge Neville |
| Hearing dates: | 2 & 3 November 2016 |
| Date of Last Submission: | 7 November 2016 |
| Delivered at: | Canberra |
| Delivered on: | 19 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Harper |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Mr N James |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The parents have equal shared parental responsibility for the children, X (born (omitted) 2013) (“X”) and Y (born (omitted) 2015) (“Y”) (“the children”).
Absent any other agreement between the parties in writing, the children’s residence is to remain in the A.C.T region.
Each party be restrained from relocating the place at which the children live outside the A.C.T region without the express prior written consent of the other.
The children live with the Mother.
The children spend time with the Father as follows:
(a)Until the beginning of school Term 1 when X commences school, each week:
A.From 9:00am on Wednesday to 9:00am on Thursday; and
B.From 9:00am on Sunday to 9:00am on Monday.
(ii)For two periods of five consecutive nights in any six-month period, on providing the Mother with a minimum of one month's notice in writing.
(iii)Such further or other times as the parties may agree in writing.
(b)From the beginning of school Term 1 when X commences school:
(i)During school terms:
A.In week 1 (and for alternate week thereafter):
(a)From 9:00am on Thursday (for Y) and from after school on Thursday (for X) to 9:00am on Friday (for Y) and to the commencement of school on Friday (for X); and
B.In week 2 (and each alternate week thereafter):
(a)From 9:00am on Friday (for Y) and from after school on Friday (for X) to 9:00am on Monday with their Father to take them to any activities or sports that they are enrolled in or invited to;
(ii)For the first half of all term school holiday periods commencing in years ending in an odd number, and the second half of all term school holidays periods commencing in years ending in an even number;
(iii)For half of all Christmas school holiday periods as agreed and failing agreement for the lst, 3rd and 5th weeks in years ending in an odd number, and for the 2nd, 4th, and 6th weeks in years ending in an even number; and
(iv)Such further or other times as the parties may agree in writing.
Notwithstanding these Orders, the children live with their Mother from 9:00am until 5:00pm each Mother's Day and with their Father from 9:00am until 5:00pm each Father's Day.
Notwithstanding these Orders, if the Mother's birthday or the Father's birthday falls on a day when the children would otherwise be living with the other parent, the following Orders apply:
(a)That if the mother's or father's birthday falls on a weekday, each of the parties take all reasonable steps to ensure that the children spend time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
(b)That if the mother's birthday or father's birthday falls on a weekend each of the parties take all reasonable steps to ensure that the children spend time with the parent having the birthday from 9am until 5pm on the birthday.
On each of the children's birthdays each year, the parent with whom the children are living make them available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 4:00pm until 6:00pm.
On Christmas Day each year, the parent with whom the children are living make them available to spend time with the other parent for a period of at least four hours at a time to be agreed between the parents, but failing such agreement from 2:00pm until 6:00pm.
Absent any other agreement between the parties in writing, the children shall attend any local non-(omitted) School.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
THE COURT NOTES THAT:
A.The Court confirms the previously made Order for the child X (born: (omitted) 2013), subject to “nicknames” only, henceforth being known as X, without any additions or variations.
IT IS NOTED that publication of this judgment under the pseudonym Andrews & Emery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 870 of 2015
| MR ANDREWS |
Applicant
And
| MS EMERY |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting matter concerns the making of Orders that are in the best interests of two children, X (born (omitted) 2013), (the Mother tends to call this child “X” rather than “X”) and Y (born (omitted) 2015).[1] Their parents never married and lived together only fleetingly. Indeed, until DNA tests were conducted, the Respondent Mother did not believe the Applicant Father to be Y's Father – but he plainly was.
[1] I have earlier delivered two interlocutory judgments in this matter, one of them in relation to the child X’s name. In opening comments at trial, the Mother’s Counsel confirmed that the child’s name was no longer an issue. See T 4. Notwithstanding this confirmation, the Mother still raised the issue of “the name” in, among other places, the course of her evidence: see T 50 - 52.
The Mother is in the relatively early stages of enduring life with multiple sclerosis (“MS”).[2] The Mother’s evidence was that she was diagnosed with this condition 15 years ago. She also said that while there was no “urgency” about the need for treatment, the sooner her chosen course of drug treatment the better.[3]
[2] Among various parts of a definition of this degenerative condition involving the central nervous system, Stedman’s Medical Dictionary (28th Edition) (p.1733) notes that it causes “patches of sclerosis (plaques) in the brain and spinal cord; occurs frequently in young adults, and has protean clinical manifestations, depending on the location and size of the plaque … clinically the symptoms show exacerbations and remissions.”
[3] T 65 – 67.
The Mother seeks to relocate to Perth, primarily for health reasons.[4] Put very simply, she contends that there are health services available to her in Perth that will give her a greater/better health outcome than what is available to her in the ACT. She has a particular regard for the health care provided by Dr W, a neurologist in Perth. In his report, dated 5th July 2016 (Exhibit G), he said (somewhat curiously I should add) that he last saw the Mother in 2007. In the same report, he began his comments by stating: “This 39 year old woman with presumed multiple sclerosis …” (emphasis added).
[4] T 65. The Mother’s oral evidence was that medical treatment was the “main reason” for her desire to move to Perth.
The Mother said that her parents are considering moving to Perth. But there was no evidence from them (the Mother said that they are in their early and late 70s and were not at the trial because her Mother had just got out of hospital and her Father was her Mother’s full-time carer).[5] The Mother has a sister who lives in Perth. There was no evidence from the Mother’s sister either.[6]
[5] T 61.
[6] See T 65.
Nor did the Mother provide any medical evidence from any of her treating health care workers – current or proposed.[7] In my view, this was a significant difficulty during the trial, and is a significant difficulty for the Mother’s case.
[7] See the extensive discussion commencing at T 65 regarding the Mother’s different types of treatment and many related matters.
The Father has no connection to or with Perth. He said that if the Mother was permitted to relocate to Perth, he would consider moving there. That said, he has just built a house in Canberra; his family lives in the national capital. The Father has some health issues himself; he receives a disability pension. He has a bi-polar condition and is seeing a psychologist.
The Father says that on a day to day basis, the Mother provides the children to him very much more than might otherwise be the case.[8] Put another way, the Father says that he and the Mother have a very good working relationship and that these very young children spend very significant time with him. The Mother generally agrees that the parties have a good co-parenting relationship.
[8] See, for example, T 7 where the Father outlined the approximate frequency that the Mother provided the children to be cared for by the Father.
The Mother said that she would be prepared to travel to Perth regularly to receive treatment. In that eventuality, she would leave the children with the Father.
From what has been said so far, it will be obvious that the primary issue concerns the Mother’s wish to relocate to Perth with the children and the “time with” arrangements for the children and their Father should this occur. If it does not occur, then more basic considerations apply for the progression of the children’s time with the Father given their young ages and the Mother’s likely medical treatment regime – which-ever side of the country such treatment takes place.
A singular difficulty for the Court, which is even more pronounced than usual in this matter, relates to the Court’s assessment of the medical evidence and the risks to the children should the Mother’s health deteriorate, especially if this happens unexpectedly and quickly. If this was to happen, and she was living in Perth with only her sister as support, it would effectively leave the Father stranded on one side of the country and the children on the other. The lack of evidence from the Mother’s parents is critical in this regard. And the medical evidence (broadly defined and considered) is also not completely helpful; in many respects it poses more questions than answers.
To add to the unusual “mix” of facts, such as they are, is that the Mother said that medical treatment of the kind she seeks is available in Sydney, but curiously said that the logistics of getting to Sydney are more difficult than getting to Perth. I confess that this did not make much sense to me.
To state the obvious: the children in this matter are young (in Y’s case, very young). Their relationships with the Father remain quite embryonic but obviously they continue to develop. The question marks over the Mother’s health – on many fronts – are quite significant, including her prognosis. It is precisely because (a) the Mother has only her sister in Perth to support her, (b) there is no evidence from her parents that they will move to Perth, (c) the many uncertainties regarding her medical care and condition, (d) the still early stages of the young children’s relationship with their Father, and in particular (e) the Mother has said that she can and otherwise would travel to Perth for treatment as required and leave the children with the Father that leads me to the conclusion that it is in the best interests of these young children to remain living with their Mother in Canberra and to spend progressively more time with their Father.
What was also telling in this case was that no one, in particular the Mother, ran any argument – until it was raised by the Court – that relied upon the principles set out by the Full Court in Taylor v Barker.[9] That case was not listed in the Case Outline by either of the parties.
[9] Taylor v Barker (2008) 37 Fam LR 461.
Orders sought by the Applicant Father
The Applicant Father’s Minute of Orders Sought (and Case Outline) was filed on 31st October 2016. Unfortunately, neither parent provided Orders sought that covered all contingencies or possibilities. Thus, the Father did not provide Orders sought in the eventuality of the Mother moving to Perth; the Mother provided no Orders sought in the circumstance where the Court did not allow her to relocate to Perth.[10]
[10] See T 11.
In any event, the Father’s Orders sought were as follows:
1. That the mother and the father have equal shared parental responsibility for the children X, born (omitted) 2013 and Y, born (omitted) 2015 (“the children”).
2. That until the commencement of the first school term in 2019, the children shall live with the mother and father as follows.
On a two week cycle such that:
(a) In Week 1
(i) from Wednesday 9am until Friday 9am with the father,
(ii) from Friday 9am until Sunday 9am with the mother,
(iii) from Sunday 9am until Monday 9am with the father, and
(iv) from Monday 9am until Wednesday 9am with the mother.
(b) In Week 2
(i) from Wednesday 9am until Friday 9am with the father,
(ii) from Friday 9am until Saturday 9am with the mother,
(iii) from Saturday 9am until Sunday 9am with the father:, and
(iv) from Sunday 9am until Wednesday 9am with the mother.
3. That after the commencement of the first school term in 2019, the children shall live with the mother and father as follows:
(A) In the case of X:
On a two week cycle such that:
(a) In Week 1
(i) from Wednesday 3pm (school pick up) until Saturday 9am with the mother,
(ii) from Saturday 9am until Wednesday 9am (school drop off) with the father,
(b) In Week 2
(i) from Wednesday 3pm (school pick up) until Sunday 5pm with the mother,
(ii) from Sunday 5pm until Wednesday 9am (school drop off) with the father.
(B) In the case of Y:
(a) Until the commencement of the first school term in 2021 the arrangement in 2 (a) and (b) hereof shall continue except that on Wednesday's the father will drop Y back to the mother after dropping X off at school, and
(b) Thereafter, the same arrangements as for X in 3 (A) hereof shall apply.
4. That when hand overs do not take place at school, the parent who is dropping off the children shall take them to the other parent's residence.
5. That if either parent is unable to care for the children or either of them overnight the other parent shall have the first opportunity to care for them.
6. That the children shall communicate with the parent with whom they are not living each Monday and Thursday, by phone / Skype or email, between the hours of 11am and 7pm.
7. That the parent who has the children in their care shall facilitate any reasonable request by either of the children to communicate with the other parent.
8. During school holiday periods:
That the arrangements in Orders 2 and 3 continue however:
(a) Each parent shall have liberty to nominate up to 4 weeks holiday a year with the children, once Y has reached 10 years of age, with any one period not to exceed 2-week's in total,
(b) Prior to Y reaching 10 years of age each parent shall have liberty to nominate up to 2 weeks holiday a year with the children, with any one period not to exceed 1-week in total,
(c) The parent who wishes to spend holiday time with the children shall provide the other parent with a minimum of one-month's notice of the intended holiday
(d) In the event of a disagreement as to holidays:
(i) No holidays shall be nominated between 6pm Christmas Eve and 6pm Boxing Day;
(ii) The mother’s nomination shall prevail in even numbered years and the father’s in odd numbered years.
9. That on the children's birthdays the parent who does not have the children in his or her care that night shall spend a period of 2 hours with the children and failing agreement as to when between the hours of 4pm and 6pm.
10. That on Mothers day/ Fathers day, if the children are in the father/ mother's care, they will be returned to the mother's/ father's care at 5pm the Saturday before mother's/ father's day and remain in their care until 5pm on mother's/ father's day, such that the children shall spend Mother's day with the mother and Father's day with the father.
11. At Christmas the children shall be with:
(a) the father from 6pm Christmas Eve until 4pm Christmas Day in odd numbered years, and from 4pm Christmas Day until 6pm Boxing Day in even numbered years.
(b) with the mother from 6pm Christmas Eve until 4pm Christmas Day in even numbered years and from 4pm Christmas Day until 6pm Boxing Day in odd numbered years.
12. That the mother and father shall ensure the children attend all extra curricular and social activities that they mutually agree upon, when the children are in their care.
13. That the mother and father shall forthwith notify the other of any medical emergency, serious injury or illness involving the children.
14. That if any of the children are taking prescribed medication, the parent who buys the medication shall provide the other parent with the medication and instructions for its use when the child goes into the other parent's care.
15. That the children shall receive all scheduled immunisations.
16. That the parents will communicate about issues concerning the children through a passworded email account, set up and maintained solely for this purpose with all email communication to be polite and respectful.
17. That when the children are at school a copy of all communications from the school should be emailed to the other parent in a timely manner.
18. That neither parent is to use physical discipline on the children or allow anyone else to do so.
19. That neither parent shall discuss any issue in dispute between the parents to the children or where the children can hear, nor allow any other person/s to do so.
20. That neither parent shall question the children about the other parent's household, their family or friends
21. That neither parent shall speak badly of the other to the children or where the children can hear, nor allow any other person to do so.
22. That both parents shall keep each other informed of up to date details of their telephone numbers and their residential address.
23. That by this Order the children's school/day care and any medical professional treating the children are hereby authorised to discuss with and provide information to both parents about the children's health, education, development and welfare.
24. That each party be restrained from relocating the place at which the children live outside the Australian Capital Territory without the express prior written consent of the other.
Orders sought by the Respondent Mother
The Mother’s Minute of Orders Sought was filed on 26th October 2016. The Mother said that, in the event she was not permitted to relocate she assumed that the Orders would largely stay the same as they are at the present and that there would be a progression in time as the children got older – which explained why she did not put any further Orders before the Court in this regard.[11] Her Orders sought were as follows:
[11] See T 46.
1. That, subject to order 2, the parents have equal shared parental responsibility for the children:
(a) X, born (omitted) 2013 (“X”); and
(b) Y, born (omitted) 2015 (“Y”) (collectively “the children”).
2. That the mother have the sole responsibility for the decisions on the children's education. Prior to making any major decisions regarding the children's education the mother give the father reasonable prior notice of the details of such decision.
3. That forthwith the Mother be at liberty to relocate with the children from Canberra to Perth, Western Australia.
4. That the children live with their Mother.
In the event that the Father also relocates to Perth:
5. That each of the parties take all reasonable steps to ensure that the children spend time with the Father as follows:
(a) Until the beginning of school Term 1 when X commences school, each week:
(A) From 9:00am on Wednesday to 9:00am on Thursday; and
(B) From 9:00am on Sunday to 9:00am on Monday.
(ii) For two periods of five consecutive nights in any six-month period, on providing the Mother with a minimum of one month's notice in writing.
(iii) Such further or other times as the parties may agree.
(b) From the beginning of school Term 1 when X commences school:
(i) During school terms:
(A) In week 1 (and for alternate week thereafter):
(1) From 9:00am on Thursday (for Y) and from after school on Thursday (for X) to 9:00am on Friday (for Y) and to the commencement of school on Friday (for X); and
(B) In week 2 (and each alternate week thereafter):
(1) From 9:00am on Friday (for Y) and from after school on Friday (for X) to 9:00am on Monday with their Father to take them to any activities or sports that they are enrolled in or invited to.;
(ii) For the first half of all term school holiday periods commencing in years ending in an odd number, and the second half of all term school holidays periods commencing in years ending in an even number;
(iii) For half of all Christmas school holiday periods as agreed and failing agreement for the 1st, 3rd and 5th weeks in years ending in an odd number, and for the 2nd, 4th, and 6th weeks in years ending in an even number; and
(iv) Such further or other times as the parties may agree.
6. That notwithstanding these Orders the children live with their mother from 9am until 5pm each Mother's Day and with their father from 9am until 5pm each Father's Day.
7. That notwithstanding these Orders, if the mother's birthday or the father's birthday falls on a day when the children would otherwise be living with the other parent, the following Orders apply:
(a) That if the mother's or father's birthday falls on a weekday, each of the parties take all reasonable steps to ensure that the children spend time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
(b) That if the mother's birthday or father's birthday falls on a weekend each of the parties take all reasonable steps to ensure that the children spend time with the parent having the birthday from 9am until 5pm on the birthday.
8. That on each of the children's birthdays each year the parent with whom the are living make them available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from4pm until 6pm.
9. That on Christmas Day each year the parent with whom the children are living make them available to spend time with the other parent for a period of at least four hours at a time to be agreed between the parents, but failing such agreement from 2pm until6pm.
In the event that the Father remains living in Canberra:
10. That each of the parties take all reasonable steps to ensure that the children spend time and communicate with the Father as follows:
(a) By Skype call twice a week as agreed and failing agreement each Monday and Thursday evening from 5pm to 6pm and on any special days that the children are not with their father such as birthdays, and Christmas Day.
(b) In Canberra, each year in December/January for 14 days as agreed, although until Y is 4 years of age, the 14 day period be spread over a 16 night period, with the children to be with their mother on two occasions for one day and one night after the first and second 5 night blocks.
(c) In Canberra, from 9:00am to 5:00pm Christmas Day in odd numbered years, when it is to be added to the period referred to in (b).
(d) In Canberra, each year for a period of 14 days at either the conclusion of Term 1 or the conclusion of Term 3 school -term, although until Y is 4 years of age, the children to be with their mother on two occasions for one day and one night after the first and second 5 night blocks.
(e) At any agreed time the Father is in Perth, having provided two weeks' notice to the Mother
(f) Such further or other times as the parties may agree.
11. That whilst the Father does not earn any income apart from his disability pension, and to facilitate Orders 10 (b), (c) and (d) the Mother will be responsible for the cost of the children's airfares.
The Father’s Evidence
Summarised, the Father’s evidence was as follows.
The first part of the Father’s oral evidence concerned his insight (my word) into seeking significantly more time with the children, in the light of their young age, than was recommended by the Family Consultant (Ms S).[12]
[12] See T 7 – 9 ff.
Next, the Father said that it was just not feasible for him to move to Perth.[13]
[13] T 10. See also T 29 – 31 where the Father said that he would still consider a move to Perth.
He said that he generally has a good day to day working relationship with the Mother; it is only “the big issues” that he finds out after decisions have been made.[14]
[14] T 12 – 13.
Mr Andrews confirmed that he did not agree with the Mother making decisions about the children’s schooling without reference to him: she wants them to go through the (omitted) School system; the Father does not. He wants them to go through a “normal” primary school.[15]
[15] T 14 – 16. I should also mention that matters relating to X’s early schooling were one of the issues the Court was required to decide a not insignificant time ago.
He said he accepted that, according to the Mother’s material, she believes that her medical care would be better in Perth.[16] At the same time, he said that he thought the Mother was exaggerating some of her concerns (a) about staying in Canberra and (b) the benefits of moving to Perth. For example, he said that if the Mother was so concerned about the cold of Canberra she would not insist (at times) for changeovers to be done in a carpark of a hardware store rather than at her home.[17]
[16] T 19.
[17] T 19 - 20.
There was some exploration with the Father about his health, his “medical team” and the capacity to engage similar persons (GP, psychologist and psychiatrist) in Perth, and the option of him either renting his Canberra property or selling it should he move to Perth.[18]
[18] T 35 – 37.
The Father confirmed that while his parents had assisted him with the purchase of his residence, he understood that their funds were limited, and he had not spoken with them about their capacity to assist him financially in the future, such as in relation to funding trips for him to Perth if the Mother and children relocated to that city.[19]
[19] T 39 – 40.
He also confirmed that, in his view, even with the Mother’s offer to fund a couple of trips to Perth for the Father, the inability to see the children very regularly would not be sufficient.[20]
[20] T 40.
The paternal Grandmother also gave brief evidence to the following effect.
First, she said that her main concern was in relation to the possible impact on the children’s relationship with the Father should they and the Mother be permitted to relocate to Perth. It was also true that she (and her Husband) saw the children very regularly when they were with the Father.
Secondly, she said that while they had been able to assist the Father financially in the purchase of a house and payment of legal fees (via a significant inheritance), things were financially rather tighter now which impacted on their capacity to continue to assist the Father financially.[21]
[21] T 42 ff.
The Mother’s Evidence
As a general proposition, the Mother’s evidence was necessarily somewhat more diverse, if not diffuse, than was the Father’s. This was primarily because of the need to traverse a range of medical and related evidence.
The Mother confirmed that she had sought, and the Father always agreed to provide, assistance in the care of the children, which led to them spending extra time with them, such as when she was moving house. She confirmed that when asked to assist or to take the children for extra time, the Father “always says yes.”[22]
[22] T 46 – 47.
The Mother confirmed that it was her understanding that the Father sought that the current two nights per week should be increased to three nights per week. She said that she thought that Y was still a bit young for such an increase, and that she wished to keep the two children together at the current time.[23]
[23] T 47 – 48.
The Mother confirmed that the only issue she could see that still caused some contest between the parties related to schooling. Apart from that, she said that the parties were “pretty much on the same page about most things.”[24]
[24] T 50.
She also confirmed that she had looked at primary schools in Canberra, both of which were not in the (omitted) School system. Seemingly, she had no major problem with them, and she confirmed also that she had spoken with the Father about them.[25]
[25] T 54 – 55.
The Mother confirmed that although her parents have been considering moving to Perth for a while, they have not (for example) sold their property or made any arrangements for such a move.[26]
[26] T 61 – 62.
Then followed the exchange regarding various possible “options” in relation to the Mother living in Perth for treatment and the children remaining in Canberra:[27]
[27] T 62. See also the discussion concerning the Mother simply travelling to Perth to be monitored after receiving her medication in Canberra, such monitoring being only for two days: T 107 – 108.
In the event – I might have asked you this before but in the event that the children can’t go to Perth you will stay in Canberra, won’t you?‑‑‑Well, again, it’s one thing I will have to consider whether I base myself in Perth and try and spend as much time as I can in Canberra or the other way around.
Well, if the children can’t live in Perth then you’re not going to move to Canberra yourself and then fly back once or twice a week, are you?‑‑‑Move to Perth?
I may move to Perth but I would have to come back regularly. But I would have to be in Perth for treatments and I would come – arrange with Mr Andrews to come back and see them for larger chunks of time I guess. These are all things I’ve got to consider.
I was probably being unclear. If his Honour says the children can’t go and live in Perth ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ okay, you’re not going to go and live in Perth and leave the children here, are you?‑‑‑I would – this is one thing I would have to consider. How I could either live in Perth and come back and see the children as much as I could or live in Canberra and travel to Perth as much as I could for medical ‑ ‑ ‑
Okay. All right.
HIS HONOUR: If you chose the former option, namely that you left the children here and you travelled to Perth however frequently for treatment, would I be right in assuming that you would – there in those circumstances, that you would leave the children with the father?‑‑‑Yes.
There followed a discussion with the Mother about the range of supports and other assistance in Canberra available to her (and the Father) in relation to the children compared to the situation in Perth where, she confirmed she had not lived for some time, and when she did live there, it was for periods of up to six months or so.[28]
[28] T 63 – 65.
In the latter part of the Mother’s evidence on the first day of the trial there was an extensive discussion about her medical treatment and who had proposed what, where and when. It was a bit complicated, particularly because there seems to be no single person who currently has “control” so to speak of the Mother’s day to day treatment because (a) she only sees her GP twice or perhaps three times per year, and (b) while she is in semi-regular contact with Dr W’s secretary, there is some inconsistency between what Dr W says in his letter (Exhibit G) and the Mother’s evidence generally. As summarily as possible, the Mother’s evidence from this part of the trial was as follows.[29]
[29] This part of the Mother’s evidence runs from T 65 – 79.
Her preferred drug treatment is Tysabri, which would be administered by a monthly infusion. It requires some monitoring, which she avers is either not done or not done appropriately in Canberra. The early part of the Mother’s evidence seemed to suggest (inadvertently) that it was only available in Perth. Later in her evidence, she confirmed that it was available in Canberra. Later still, she confirmed that there were specialists “all over Australia” who prescribed Tysabri.[30] And all of this was in circumstances where, in the early 2000s, testing in Canberra indicated that this drug was not suitable for her.[31] More recent testing suggests that it is [now] suitable for her.
[30] T 108.
[31] See T 65 – 69 & 70 - 74.
The Mother confirmed also that, at least in theory, however difficult the logistics were, she could be monitored in relation to how the drug was performing and any reactions to it in Sydney every 28 days.[32]
[32] T 108. The same regime of monitoring every 28 days would apply were the Mother planning on this occurring in Perth. To state the obvious: it would doubtless be cheaper to travel to Sydney every 28 days than to Perth for the purposes of monitoring, accepting that the Mother would presumably be able to stay with her sister in Perth but details about accommodation for her in Sydney were not available for the trial. The Court may take some judicial notice of the fact that many hospitals for certain kinds of treatment are able to provide some short-term accommodation. But I do not take such notice here.
A further recurrent theme – regularly expressed – of the Mother’s evidence was that she did not have much faith in what was in medical notes and letters; there was, she said, never much accuracy in them.[33] Not quite so explicit was that this criticism seemed to be directed primarily to medical practitioners (specialists and others) in the ACT. Her only faith was in Dr W in Perth. This is so notwithstanding that, on his unsworn evidence via a letter in July 2016 (Exhibit G) he has not seen the Mother for many years (her evidence is that she has seen him every couple of years seemingly at a clinic; but this begs the question about his monitoring of her when his own record provided to the Court indicate that he has not seen her since 2007).
[33] T 73 & 79.
What was also very curious was the Mother’s evidence about the availability of her preferred drug, Tysabri, in Canberra and who would or would not provide it to her. Her basic evidence was that a neurologist in Canberra, Dr L, said that he would not provide the drug to her. Indeed, in Dr W’s letter of 5th July 2016 (Exhibit G) to the Mother’s GP, he said that Dr L would not give the Mother this drug because she tested positive to the risk of contracting a particular virus that can be associated to patients with MS. Yet, in a separate letter from Dr L dated 22nd August 2016 (Exhibit B), to the Mother’s GP, Dr L confirmed that (i) Dr W had provided a prescription for the drug Tysabri for the Mother, and significantly (ii) he “would be happy to assist with Tysabri infusion until she moves back to Perth.” Dr L also confirmed in the same letter that he “would be happy to see her if required.” It may be possible to infer that this offer could include any relevant monitoring of the Mother. Indeed, the Court may be able to assume that no medical practitioner, and especially no medical specialist, would administer drugs and not monitor any possible side effects and the like.
The Mother said that she had not seen this correspondence from Dr L to her GP but again said that she did not think it was accurate based on her past experience. She agreed that Dr L could administer the drug to her in Canberra but felt that she would still have to go to Perth to have her treatment monitored by Dr W.[34] She did not explain why this would be necessary, other than by inference from her other evidence of her profound faith in Dr W and a correlative lack of the same virtue in other medical specialists in the ACT and elsewhere.
[34] T 73 – 74.
Later in her evidence she said that she was aware that Dr W was trying to speak with Dr L but, as of early October last year, they had not done so.[35]
[35] T 107.
Her current symptomology is that she is generally strong (e.g. the Mother can lift the children and other weights without difficulty) but she cannot ride a bike or run. There are, she said, no limitations in relation to her ability to care for the children, except that at times she gets a bit “wobbly.” She said that her treatment with Tysasbri was not so much urgent as important. There was no reliable prognosis in relation to the course of her condition because it was completely individual such that it was impossible to predict whether, how and in what way her condition might develop.[36]
[36] Ibid.
There was also an extended discussion regarding the availability of other required services (a) in the ACT generally and (b) under the National Disability Insurance Scheme (“NDIS”). It is sufficient to record that, in general terms and consistent with her view more widely in other related areas, the Mother is confident about obtaining the range of support services in Perth (e.g. physiotherapy) but not so in the ACT because they would have to be paid for and or only available in limited supply under the NDIS.[37]
[37] See T 74 ff.
On the second day of the trial the Mother’s evidence continued. It traversed further issues relating to what was and what was not available under the NDIS (e.g. physiotherapy, occupational therapy and hydrotherapy were all available, but not massage therapy). At an earlier point in time the Mother had checked through the local MS Society and ACT Health the availability of massage therapy but to no obvious avail. However, Neurospace (a dedicated NDIS neurological provider) could provide specialised massage therapy.[38] This evidence, some of it summarised in correspondence between the Mother and various agencies (including NDIS – see Exhibits D & E) suggested that the availability of relevant services in the ACT was not as bleak as the picture painted by the Mother. This is not a formal criticism but more so an observation.
[38] T 99 – 108.
The Mother confirmed that last year (in July and August) she had sought from Dr W’s rooms about the range of services available in Perth. Alas, there was no relevant information provided for the purposes of the trial. The email chain from the Mother to Dr W’s rooms became Exhibit F.
There was some discussion with the Mother about her hope/intention to return to the workforce on a part-time basis, and also about her financial capacity to purchase a property in Perth.[39] In my view, I understood the Mother’s evidence in this regard to be on the basis of “this is (or would be) the optimum” situation in all relevant respects – health, finance/work.
[39] Generally, see T 109 – 112.
Finally, there was the following exchange with the Bench (emphasis added):[40]
But trying to put something similar to what I put to Ms S earlier, namely, having regard to the best interests of the children, we all hope for the best but I have to have at least some regard to absolutely worst case scenario. And absolute worst case scenario is that your health actually deteriorates. Again, we hope most earnestly that that doesn’t happen, of course?‑‑‑Mmm.
But if that were to happen – and, again, we just don’t know – and you’re in Perth and you have only your sister and her family there, the father and his family is here, what do you say in that sort of scenario is going to be in the children’s best interests? Do you still maintain or would you still maintain that with that question mark that it’s in the best interests of the children to go to Perth?‑‑‑I actually honestly believe it is, that the healthier and happier I am the healthier and happier I think the whole situation can be.
No, no, I understand that?‑‑‑In the short term, if it was literally a, “You need to go into hospital for two or three days,” obviously I would talk to Mr Andrews and he could either come over and care for the children or my sister, my parents, would have that option there. If it was going to be long term, as in six months, then that’s something that I would have to talk to Mr Andrews about, whether he come to Perth or whether I return to Canberra with the kids and the kids stay here. They’re all, I guess, variables and unknowns that we will have to work through at the time, assuming that Mr Andrews is in a situation that he can care for the kids full time in Canberra. Or if he wanted to come to Perth if it’s a temporary relapse or if it’s a longer term thing. And I guess that’s the thing about MS, is it’s very very unpredictable.
And I understand that. But you also accept that we don’t have any medical evidence about the state of your wellbeing. Obviously you can tell us that. But in terms of – other than the medical material that has been tendered, we don’t have anything from your treating doctors?‑‑‑No, I understand that.
[40] T 112.
Other Witnesses
The Mother relied upon the evidence of Ms D, who was a consultant with MS ACT. Her affidavit was filed on 27th October 2016. She outlined what she considered to be the advantages to the Mother in relocating to Perth, which included her access to a neurologist with whom she has a good working relationship, the more comprehensive services available to the Mother through the local MS Society.
In her oral evidence, Ms D said that the services of MS ACT were not “down-sizing” but more that they were changing because, among other things, of the interaction with the NDIS.[41] She confirmed that she had not spoken with the Mother’s sister in Perth nor the Mother’s parents in Canberra.
[41] T 115 – 116.
The Mother also filed an affidavit (on 31st October 2016) from a Ms H, from the MS Society in Western Australia. Unfortunately there were logistical issues that ultimately precluded her being able to give any oral evidence. In her affidavit, she outlined various “holistic services” that would be available to the Mother were she able to relocate to Perth. However, in discussions with Counsel for both parties, it was accepted that issues of funding and policy regarding available services in Perth (which the Father’s Counsel wished to inquire into) were unlikely to be able to be answered by Ms H.[42]
[42] See T 118 – 120.
Evidence of the Family Consultant
From the Report of Ms S (Exhibit A), it is as well to set out in full her comments in relation to the parties, her assessment and her recommendations (pars. 4 – 8.3) (emphasis added). I should note that, in my view, there was not as rigorous an assessment by the Family Consultant especially of the Mother’s various claims that one would normally see and expect. Accepting the difficulty of checking on a number of matters raised by the Mother, as Ms S said in her oral evidence, her opinion was based on a number of assumptions. In the light of the Mother’s evidence, a number of those assumptions were not well founded – through no obvious fault of the Family Consultant except various matters put by the Mother were obviously accepted uncritically. The parts of her Report noted are as follows:[43]
[43] I note again that the issues of schooling and X’s name had previously been the subject of the Court’s determination, but notwithstanding such rulings, the Mother continued to raise them even with Ms S. Unfortunately, it seems evident that the Mother did not apprise Ms S of these earlier rulings by the Court.
4. Issues in Dispute and Issues arising during Assessment
4.1 The major issues were Ms Emery's wish to relocate with the children to Perth, and the question of schooling. Ms Emery cited her health care as the main motivation for her wishing to move to Perth. The cost of her MS treatment and the standard of care were critical factors, as well as being away from the Canberra winters. Mr Andrews opposed the relocation. He did not want to lose the closeness he had achieved with the children, nor was he convinced that Ms Emery's reasons justified the move.
4.2 Ms Emery had been schooled in the (omitted) School method, and wished for her children to have the same opportunity. She placed a high value on education. Mr Andrews was opposed to Ms Emery's proposal for their son's schooling partly because it would mean he would lose Wednesday mornings with X straight away, and partly because he was not convinced that the (omitted) School method was right for their son.
4.3 The couple were in dispute about their son's name, Christian name. His birth certificate, I understand, had his name as X. Ms Emery consistently referred to him as X, while Mr Andrews called him X.
4.4 A further issue came to light when Ms Emery expressed her concern, during the interview, that Mr Andrews's mother was the driving force behind Mr Andrews opposing her relocation application. His mother paid his legal fees and attended all his legal appointments with him, she noted.[44]
[44] I should note here that the issue of the alleged influence of the Father’s Mother was not pressed at the trial.
5. Adults
5.1 Ms Emery impressed me as a person who was doing everything possible to mitigate the effects of Multiple Sclerosis on her life. She had clearly been proactive in discovering and utilising services and treatments. Her reasons for wanting to go to Perth were not frivolous. WA apparently offered more comprehensive treatments and some medications that were not available here in Canberra. Ms Emery explained, “The MS Society in WA is profitable. So $8000 worth of what I pay in Canberra is free in Perth.” Ms Emery's neurologist in Perth, Dr W, was reportedly an eminent neurologist who specialised in MS research and treatment. She no longer had a neurologist in Canberra since the retirement of Dr T under whose care she was previously. To travel to Perth every 6 weeks for treatment would cost $2000 each time. “With no child support, I need to be in Perth,” emphasised Ms Emery.
5.2 It was evident that Ms Emery had a network of friends in Perth, as well as her sister who was married with two children. Her parents were likely to move to Perth in the next few years, she told me, since her mother suffered from the cold in Canberra's winters, as did Ms Emery, who found that her MS symptoms were worse in cold weather. Ms Emery was receiving no Child Support from Mr Andrews, who was on a Disability Pension. She had researched the cost of real estate in Perth and found it cheaper than Canberra. Her plan was to return to part-time work in the next few years.
5.3 It had apparently been when Ms Emery was about 7 months pregnant with X that she left Mr Andrews and went to Perth. She and Mr Andrews “talked on the phone a bit.” I heard that the birth was quite traumatic, and that Mr Andrews flew to Perth when X was three days old. Ms Emery “skyped quite a bit so his family could see the baby.” I understood that Mr Andrews had been seeing his son regularly since he was born, including “regular and ad hoc days.” X had been three weeks old when Ms Emery returned to Canberra to finalise the sale of her house. When he was only six weeks old, she had to go to hospital for a week. She was breast-feeding. Mr Andrews looked after X, bringing him to the hospital during the days. “He found it really, really hard, but he did really well”, said Ms Emery.
5.4 Recalling the mediation they had while she was “finalising everything”, Ms Emery said that Mr Andrews refused to agree to her taking X to Perth, and said he wanted equally shared care. Her observation was, “He insists on more time, but often doesn't take it up.” Acknowledging that Mr Andrews “bonded with X instantly”, she intimated, “Y’s been more work, but he's there now.” It was clear to me that Ms Andrews was pleased with the relationship that Mr Andrews had been able to develop with the children, and she was keen for them to maintain a strong connection. In her conversation about Mr Andrews, Ms Emery expressed appreciation of what he offered the children as their dad.
5.5 Remarking, “I think we've worked well together,” Ms Emery intimated that she believed she and Mr Andrews together could work this dispute out. However in her view, Mr Andrews was “very influenced by his mother”, who had reportedly caused problems in their relationship. “She's paying all the legal fees and attends all his legal appointments”, Ms Emery informed me. She went on to say that during the mediation, Mr Andrews was exploring the possibility of moving to Perth a little further down the track, because he had just bought a house and he wanted to get the garden going so that it would be better for renting. “His mother has said she'll never let me go to Perth” observed Ms Emery. “I often feel I'm not dealing with Mr Andrews but with his mother. In emails - it's clear they (his parents) are the ones replying to my emails.” Ms Emery explained that Mr Andrews had experienced some learning difficulties. Furthermore, she claimed, “[His mother] said she would not allow Mr Andrews to negotiate with me without her being there”. Apparently an invitation was extended to her to attend a round-table conference with the two parties and their solicitors, but no response was received.
5.6 Ms Emery recounted events at the (omitted) School Open Day. She was anticipating that Mr Andrews would attend, but had no idea that his parents would be there. She heard Mr Andrews's mother speaking to the teacher, pointing to her and saying, “That nasty woman there!” and informing the teacher, “I won't let Mr Andrews negotiate with her alone.” Ms Emery had found this extremely upsetting; particularly since she made a point of never discussing the family situation with others, because, she said, “I never want X to hear someone speak badly about Mr Andrews.” She said of her own parents, “My dad really likes Mr Andrews,” and, “Mum was a bit confronted by the behaviour of his mother at the (omitted) School Open Day.” Ms Emery experienced the influence of his mother when Mr Andrews declared “really aggressively” such things as, “We're going to do it our way. My mother is not going to allow you to do this.” After this Ms Emery stopped going to the handovers, which her dad agreed to take on.
5.7 Ms Emery believed that Mr Andrews “wanted more time with X so that he could have time on his own, without his parents.” In her opinion, “Mr Andrews and I have been fine for the last year. We send messages and photos every day.” Despite her misgivings about Mr Andrews's mother's supposed interference, Ms Emery made it clear that she would want the children to be able to maintain a connection with that side of their family, and, for example, to spend time with them in their summer holidays at the coast. If she were able to relocate to Perth, she would bring the children over at Christmas time to enable that to happen.
5.8 Education was clearly an important value for Ms Emery. She reportedly had several University Degrees and had been employed in a variety of positions in Australia, (countries omitted). For example, in Australia she had worked for the (employer omitted). She believed Mr Andrews was “very negative about education” because of his own experience. “He hated school, had learning difficulties [which)...affected his mental health,” she explained.
5.9 I understood that the school in Perth, called (omitted), where Ms Emery would like to enrol X, followed the (omitted) School method, and the fees were significantly cheaper than the (omitted) School's fees. Ms Emery had also compared real estate in Perth and Canberra, noting that it was significantly cheaper in Perth.
5.10 I heard from Ms Emery that Mr Andrews was a qualified (occupation omitted), but had been unable to work for six or seven years, apparently due to some events that occurred in his workplace that aggravated his mental state. He was on a disability pension, but was able to do some cash in hand work, mostly (employment omitted). “He's very handy”, Ms Emery said, adding, “He sends pictures of him fixing things. X is getting the experience – Mr Andrews includes him - and he loves fixing things.” Ms Emery alluded to times when Mr Andrews apparently felt inferior to friends of hers who in important positions in their careers. She appeared pleased to report that his self-confidence had improved in recent times.
5.11 Ms Emery readily agreed to complete a Personality Assessment Inventory (PAI). The test, devised in 1991 by LC Morey, assesses psychopathological syndromes and provides information relevant for clinical diagnosis, treatment planning, and screening for psychopathology. The inventory is self-administered with 344 items constituting 22 scales, including 4 validity scales, 11 clinical scales, 5 treatment consideration scales, and 2 interpersonal scales.
5.12 The four Validity Scales of the PAI assess factors that could distort the results of testing. On the Positive Impression Scale (PIM), Ms Emery's score was slightly elevated, suggesting that “the test-taker responded in a manner to portray himself or herself as relatively free of the common shortcomings to which most individuals will admit” (Morey, 1991, p13). According to Morey, high scores on this scale could distort the accuracy of the clinical profile, by underrepresenting the extent and degree of significant test findings. In my experience, it is not uncommon to see elevated PIM scores in the context of a Family Report, where there is a strong emotional investment in the outcome. On the Information Scale (INF), Ms Emery's elevated score suggested a number of “idiosyncratic responses.” However, the scores on the other two Validity Scales were in the average range and not noteworthy.
5.13 Ms Emery's clinical profile showed no elevated scores other than on the Somatic Complaints Scale (SOM), which was to be expected, given her condition. There was no evident psychopathology. Similarly on the Treatment Consideration Scales, Ms Emery's scores were average or below average reflecting “a person who has reasonable control over the expression of anger or hostility” who has few thoughts about death or suicide"; who “reports his or her life as being stable, predictable and uneventful", and who “reports close, generally supportive relationships with family and friends” (Morey, 1991, p19-20). On the Treatment Rejection Scale Ms Emery's score was typical of a person who “admits to few difficulties and has no desire to change the status quo” (Morey, 1991, p20). On the Interpersonal Scales (Warmth and Dominance) Ms Emery's scores were in the average range and not noteworthy.
5.14 Mr Andrews was friendly, open and cooperative. With the children he seemed calm, responsive and gentle, in my observation. He told me he had a stable routine for the children, and that they slept well with him. If they were unwell, or if they hurt themselves, he was able to comfort them, he said. Pointing out that he wasn't consulted about the second pregnancy, and that Ms Emery had denied it was his child, he intimated, “I can't be sure, but I think it was intentional.” He went on to say, “I’ve picked up the ball and bonded with the children and been involved all this time, and now I'm facing having them taken away.”
5.15 As he talked, I formed the opinion that Mr Andrews was a committed parent who had been genuine in his efforts to create a workable co-parenting relationship with Ms Emery, although he had not planned to have children. While he described feeling that Ms Emery had been unreasonably holding the children back from him in the past, he acknowledged now, “I feel the balance is right.” He recalled times past when X would be upset at having to go back to his mother. I heard that at drop off times now, his son would say “Shoo Dad, Shoo.” Smiling, Mr Andrews commented, “Then I know he's all right.”
5.16 The fact that questions had been raised about his mental health, in the context of reducing his contact time, had apparently made Mr Andrews question whether Ms Emery had received legal advice to minimise his time with the children. He explained that he was on a disability pension due to stress, anxiety and depression that arose in his work where he experienced aggressive and demeaning behaviour from his employers. Added to this, he had lost his brother to cancer. In terms of his parental capacity, Mr Andrews assured me, “I feel very confident with the children. I never feel overwhelmed. Though it's challenging at times, it's rewarding. At work I was stressed, overwhelmed, not confident.” During 2015 when Ms Emery had to leave her house because of asbestos, and then contracted Shingles, Mr Andrews had X for some weeks, with Ms Emery visiting during the day. After Ms Emery got him back, according to Mr Andrews, “She did not let me have him in the agreed transition manner. I only got 4 or 5 hours... X was upset, wanting to stay more. I think she was worried about the status quo residency.”
5.17 With admirable candour, Mr Andrews acknowledged, “The first couple of nights away from Ms Emery, Y was a little bit upset, but she's really good now. She's taken to it.” Mr Andrews said that his mum and dad would “usually come over at some stage,” when he had the children. This seemingly gave him extra flexibility. For example, he remarked, “I’ll take Y down to the shops and leave X with Mum and Dad.” The children apparently got along well with his mum and dad, as well as his sister, and “friends who come over.” Apparently his parents lived about 25 minutes' drive from him, and his sister was a similar distance in the other direction.
5.18 I thought Mr Andrews's remark: “If I'm away from the children and knowing they're happy and having a good time, I'm at peace with it, even though I might be missing them” reflected trust in the bond he had with the children, as well as respect for their mother's parenting.
5.19 As he spoke about the children Mr Andrews described their current stages with familiarity and affection, for example telling me about X's “cheeky streak” and his propensity for “a few tantrums.” X reportedly loved “fixing things” with his dad in the shed.
5.20 I heard from Mr Andrews that Ms Emery did not inform him about the (omitted) School until three days before the Open Day. He had to do some research. He was worried that the (omitted) School method seemed “a bit isolating.” Also, the next stage into which X could progress now, would involve 5 mornings per week. Mr Andrews was not willing to lose his Wednesday mornings with his son. “I’m all for looking at private schools when he's a bit older,” he said, observing that Ms Emery had rejected his proposal of (omitted) School which offered a (omitted) School program three days per week.
5.21 I noticed that during his interview, when I recounted for Mr Andrews the assistance that Ms Emery had said she was willing to offer to facilitate his contact with the children in the event that she could relocate to Perth, he seemed willing to entertain the possibility. However the following day when he came to return the completed PAI, he made it clear that the relocation was out of the question as far as he was concerned. I wondered about the change in his attitude.
5.22 Mr Andrews readily agreed to complete a Personality Assessment Inventory. His scores on all four Validity Scales were within the average range, suggesting that his PAI profile could be meaningfully interpreted as providing a valid representation of his psychological health. Mr Andrews' Clinical Profile showed average or below average scores on all Scales, indicating no psychopathology, with just one Subscale (SOM-H) showing a moderate elevation. This Subscale of the Somatic Complaints Scale refers to Health Concerns. According to Morey, elevated scores on SOM-H can indicate that the self-image of these individuals “may be largely influenced by beliefs that they are handicapped by their poor health” (Morey, 1991, p13). I thought Mr Andrews's score might reflect some concern about the depression and anxiety he had suffered in the work environment.
5.23 Of the five Treatment Consideration Scales, only one of Mr Andrews's scores was noteworthy. This was his very low score on the Aggression Scale, which might indicate “a very meek and unassertive person” (Morey, 1991, p19). The other scores were all in the average range.
5.24 The scores on the Interpersonal Scales - Dominance in the low average range, and Warmth in the average range - were not noteworthy.
6. The Children and their Relationships
6.1 Both children seemed happy, healthy and developmentally sound. I noticed at one point that they both seemed contented each sitting on one of their father's knees. No sibling rivalry was evident. As far as I could tell, from my limited observations, they both seemed relaxed and engaged with each parent. Mr Andrews intimated that Y liked to be carried around. I noted that he accommodated her wishes during the brief time I observed her with him.
6.2 Mr Andrews reported that Y had been a little upset when she first stayed overnight with him at Christmas 2015, but seemingly became accustomed quickly and had been spending two nights per week with him for the past two months.
6.3 Both parents were friendly and courteous to one another in front of the children. Ms Emery made it very clear that she did not want the children exposed to any hint of negativity about their dad.
7. Assessment
7.1 I had no doubt that both parents were competent and loving parents. The level of cooperation between them in the past and the way they spoke of one another reflected a respect for one another as the parent of their children. The issues that divided them were challenging, involving significant emotions. On an emotional level it was easy to empathise equally with each parent's position.
7.2 From the perspective of the children's emotional development, it was likely that X, at 3, was securely attached to both parents. His little sister was still at an age where most professionals would say she needed to further strengthen her primary attachment to her mother, thus ensuring her capacity to form firm attachments to other significant people in her life. Being the second child might mean that this process would happen more quickly and more easily than if she were the only child.
7.3 Mr Andrews was to be applauded for his willingness to step in whenever circumstances required him to take on extra parental responsibilities, and for his commitment to being a good parent to both children. However I considered that the pressure he applied at an early stage for overnight contact, and for equally shared care of such young children, was not well-informed or helpful. As things transpired, the parents had now achieved what Mr Andrews described as the “right balance,” although Y was quite young to be spending two nights every week away from her mother. The view that there should be frequent brief contact periods for the non-primary parent of a baby or toddler is based on the theory that children who achieve a secure attachment with their primary carer in the first two to three years of their lives are well-placed emotionally to form other secure attachments. In my experience, equally shared care for very young children is not generally in the children's best interests.
7.4 In the event that the children were to be relocated to Perth, careful consideration would need to be given to how to keep Mr Andrews “present” in their lives. Y in particular might not easily tolerate large blocks of time away from her mum, at least for the next couple of years. In order for her to cope with longer blocks of time with Mr Andrews and his family, such as over the Christmas holiday break, it would be desirable if Mr Andrews could spend some blocks of time in Perth, during which she might spend a few short contact periods with him.
7.5 I would expect that X would miss his dad a lot if Ms Emery were to move to Perth. The cooperation between the parents, and their willingness to use FaceTime and to do whatever necessary to keep him connected with his dad, would help a great deal to enable him to manage the transition.
7.6 Ms Emery sets out a compelling case in her Affidavit filed on 24/7/15 for her wish to avail herself of the MS services available in Perth. Indeed, medical considerations, cost considerations and personal support considerations would all favour her living in Perth. These considerations were not irrelevant to the future wellbeing of her children. Their mother's wellbeing will inevitably affect them. Living in Perth would enable them to have close relationships with their cousins, aunt and uncle, and maternal grandparents. In my view, anything that has the potential to alleviate Ms Emery's medical condition will have the potential to allow her to be the best parent possible. The medical, physical, psychological, and financial benefits of moving to Perth seemed compelling.
7.7 The question remains as to what effect such a move would have on the children's relationships with their father and his family. Mr Andrews's suggestion that Ms Emery could be allowed to take the children to Perth for the winter months might be impractical in the long term, but was perhaps worth considering for the winter of 2017 after which Y would be 2 years old. The winter of 2018 might be a more favourable time to consider the permanent relocation.
7.8 Ideally from Ms Emery's perspective, both she and the children could benefit a great deal from having her family as well as Mr Andrews close at hand, especially in the event that she suffered setbacks in her health. Aside from the fact of having just moved into a new house, Mr Andrews was arguably in a better position to move to Perth, than was Ms Emery to stay in Canberra.
7.9 Both parents had personal attributes that would benefit the children. Ms Emery, with her educational and employment experience both here and overseas, would no doubt broaden the children's horizons, and provide a model of mental flexibility that could encourage them to tolerate uncertainty and appreciate new challenges. Furthermore she held Mr Andrews in high regard as the children's father.
7.10 Mr Andrews demonstrated amply that he was emotionally responsive to the children, and enjoyed their company. I formed the opinion that he was willing and able to respect Ms Emery as the children's mother, and had not been averse to taking advice from her. I thought he showed emotional maturity in his capacity to understand X's “Shoo, Daddy, shoo” as a good sign, and to compartmentalise his own sadness at saying goodbye. This seemed to me to augur well for the children's emotional development. His reluctance to be away from the children for long periods was understandable, but he did not impose his sadness on the children.
7.11 Ms Emery was likely to be the parent who would contribute more to the children's intellectual development. This fact might give her more say when it came to deciding on which schools the children should attend. I considered that the children would receive a good education under her watch, regardless of which school they attended.
7.12 I did not meet Mr Andrews's parents. However the fact of his lack of assertiveness and his indebtedness to his parents, apparently, for his new house and his legal fees, I thought there could be some substance to Ms Emery's conviction that he was overly influenced by his mother, who was reportedly vehemently opposed to allowing the relocation to take place.
8. Conclusions and Recommendations
8.1 On balance, I formed the view that the children's best interests would be served by having their mother as medically and psychologically fit as was possible. As far as I could tell, this would mean allowing her to relocate to Perth with the children.
8.2 Assuming that the Court could be satisfied of Ms Emery's capacity to carry through with her proposals regarding the children's contact with their dad, these should be specified in detail.
8.3 If Mr Andrews were to move to Perth, or if Ms Emery is obliged to stay in Canberra, I would recommend that the current arrangements remain in place until the end of 2017, at which point the children might continue with contact every Wednesday night, plus two nights (Saturday and Sunday) on alternate weekends. Once Y reaches three years of age, the weekend contact might increase to three nights (Friday, Saturday and Sunday).
Lest it need to be stated: much of Ms S's Report was totally uncritical about any of the statements by either party, but especially so the comments and statements by the Mother. In certain respects, Ms S properly acknowledged this in her oral evidence to which I now turn.
The first focus of questions to Ms S related to “attachment.” She agreed that X was well attached to both parents, but that Y was still developing “attachments.”[45]
[45] T 84 – 87.
After commenting on the “happiness” of the Mother about the proposal to move to Perth, Ms S agreed that there were a number of uncertainties about such a move.[46] There followed the exchange between the Bench and Ms S, which covered a number of contingencies. In my view, it was a quite important discussion (emphasis added):[47]
In perhaps slightly more colloquial terms, the court always hopes for the best, but in many ways it has also got to have a sort of guard against or have regard to a worst case scenario?‑‑‑Yes, your Honour.
Right. A worst case scenario, could I suggest, if the mother goes to Perth and – as Mr Harper has mentioned as one a number of factors – her degenerative medical condition worsens significantly – we obviously hope that that doesn’t happen. But if it does and she is not able to care for the children or certainly not able to care for the children in the way that she would usually do so, and, as I understand it, her only close support over there is her sister, and the father is on the other side of the country, it places everyone in a very difficult position, does it not?‑‑‑It would.
Would that scenario make any difference to your recommendation, as I understand it, in your report about it being in the best interests of the children for a relocation to Perth?‑‑‑Well, it probably would if that were the scenario but I suppose as I was kind of thinking about it, what I did assume is that the level of medical care in Perth would in fact preclude the worst case scenario happening there perhaps more than it would be precluded here. I don’t know. This is – this is how I was thinking. And that Ms Emery would have some idea of the level of support that she might get from her sister and her parents, and, you know, that that’s – that’s likely to be the case. But if none of that ‑ ‑ ‑
Sorry. Well, that also assumes – sorry. But that also assumes that her parents move, and we don’t know anything about that?‑‑‑Yes. Although they do spend a lot of their time in Perth already, so – yes, I’m assuming a lot of things; yes.
[46] T 90.
[47] T 91.
Ms S also agreed with the proposition that given all the Father’s medical/psychological and family support are in Canberra, a move to Perth would or could be quite unsettling for him.[48]
[48] T 91 – 92.
The remainder of Ms S’s oral evidence related to things like the good co-parenting relationship between the parties, the progression in Y’s time with her Father, the Mother not seeking to marginalise his relationship with the children by her proposal to relocate to Perth, and that the Mother’s motivation in such a move was predicated upon the availability of medical treatment there that was not (apparently) available in Canberra.[49]
[49] T 93 – 97.
Submissions on behalf of the Applicant Father
The essential elements of the Father’s [oral] submissions were as follows:[50]
[50] See T 122 – 132 & 142 – 143.
(a)Regarding “time with” as between the children and the Father, it was submitted that there be something of a trial whereby both children move to a 3 night per week arrangement, noting that the parents have a good co-parenting relationship and could, if necessary, adjust this arrangement if it was not working out, especially in young Y’s case. This was obviously predicated upon the parties being in the same locality;
(b)The parents were “decent and competent;”
(c)A particular issue in the case was the Mother’s “credit”, not because she was seeking to mislead the Court but more because of the lack of evidence to support her case, there being nothing from her treating medical practitioners, her parents, or from her sister. In short, it was submitted that the Mother’s case was based entirely on hearsay evidence, as well as the fact that there was more than ample time and opportunity for the Mother to put on relevant evidence, especially from experts who are or who would be treating her;
(d)This lack of relevant evidence must, it was submitted, lead the Court to draw necessary inferences based on the principle in Jones v Dunkel. The lack of relevant evidence, especially from medical experts meant that the best the Court could do – but must not do – was to guess at possible outcomes, such as the availability of the Mother’s medication of choice and the monitoring of it either in Canberra and elsewhere, including places much more proximate to the Mother’s current living situation in the ACT than is Perth;[51]
(e)It was submitted that the presumption in relation to s.61DA applied in the current matter. If the Mother relocated to Perth, both equal time and significant and substantial time considerations pursuant to s.65DAA would not operate for reasons of impracticability;
(f)Accepting that the Mother did not have to show or provide “compelling reasons” for seeking to move to Perth, if the Mother did so move there would necessarily be a significant attenuation of the children’s relationship with the Father. And again it was stressed that there were so many “unknowns about what is going to happen to the Mother” if she moved to Perth;
(g)In this regard, with so many “unknowns” regarding the Mother, especially in relation to her health, such a move could result in a situation where the Mother’s health worsened and the bulk of her current support (including the Father in relation to the children) were on the other side of the country. Put another way, there was little in the way of a “back-up” plan for the Mother other than to rely upon her sister about whom the Court knew nothing, including whether there was any [existing] relationship between her and the children. Such a move with this scenario as a possibility was a significant change for and posed a risk to the welfare and care of the children;
(h)A solution to this scenario, as discussed with the Mother in her evidence, was for the children to remain in Canberra with the Father and where both sets of Grandparents can remain involved, and for the Mother to travel to Perth for her periodic treatment and monitoring;
(i)In relation to the child “X’s” name, it was submitted that because the Court had previously determined this issue, it remained in his best interests to be called by the same name in each household;
(j)Finally, in relation to Ms S's Report, it was submitted that there was a fundamental flaw in it, namely that she made many assumptions that ultimately, in the light of the evidence presented to the Court, were not accurate or complete. And further, it was submitted that Ms S over-stepped the mark by making recommendations based on material(s) that were ultimately incomplete.
[51] The problems regarding the lack of proper medical evidence was canvassed at some length at T 125 – 129.
Submissions on behalf of the Respondent Mother
Summarised, the Mother’s submissions were as follows:
(a)First, Counsel for the Mother referred to a number of further tests for the Mother that had been ordered by Dr W (in Perth) in July 2016. Unfortunately, although carried out in July 2016, the results of those tests had not been provided, even following inquiries made by the Mother to Dr W’s rooms shortly before the trial (see the email chain that comprised Exhibit F);
(b)By reference to the Full Court decision in Sayer v Radcliffe (among other cases, including the High Court decision in MRR v GR) it was noted that “relocation cases” are relevantly parenting cases with “relocation” as another component; accordingly, the focus remains on the best interests of the children and the Court’s responsibility to consider the matters set out in the legislative pathway;
(c)Like the Father, the Mother submitted that the children’s relationship with the Father (indeed with both parents) was good. It was also acknowledged that the children have a “close relationship” with both sets of Grandparents as well;[52]
(d)It was confirmed that, by reference to Ms S’s recommendations, the parties generally have been able to negotiate age appropriate “time-with” arrangements for the children and their Father;
(e)It is accepted that if the Mother’s relocation proceeded there would be a diminution of the children’s [face to face] time with the Father; however, given the quality of the children’s relationship with the Father this would not be so large an issue as it might otherwise be;
(f)It was also acknowledged that the Mother’s proposed move to Perth would necessarily result in increased costs associated with the Father spending time with the children – whether in Perth or in Canberra. It was submitted that the “time-with” arrangements would be restricted to holidays;[53]
(g)In relation to “costs”, given that the Father remained on a disability pension, the Mother had offered to cover “the lion’s share” of travel costs for the children to visit Canberra, or the Father visiting them in Perth. It was stated that the Mother had budgeted for this. I pause here to note that the Mother’s “financial circumstances” were only traversed in very modest detail during the trial such that the Court could not be completely confident that the Mother would be able, in her current circumstances, to honour her genuine offer of financial assistance;
(h)There were submissions regarding the possibility of the Father moving to Perth, which focussed on him not being in employment since 2010, and having a residence here that he could either sell or rent, and that his health care requirements could be managed in Perth essentially by people similar to those who manage his care in the ACT. Respectfully, I do not see this to be a very viable option, given that the Father is on a disability pension and that his residence has only relatively recently been built. And if it argued that the Father’s health care can be managed in Perth just as well as in the ACT, it is difficult, in my view, for the reverse argument not to be applied to the Mother in relation to her health care being adequately managed in the ACT as it is in Perth, accepting her “preference” to be treated by Dr W in Perth;
(i)There were extensive submissions relating to what was essentially a comparison of the health care systems in the ACT and Perth in the Mother’s experience and the availability of certain kinds of assistance to her in both localities. It was stressed that these submissions in relation to the Mother’s evidence regarding health care management and assistance were based on “the Mother’s genuine subjective belief”.[54] Again I pause simply to note that (a) I do not doubt the Mother’s “genuine subjective belief” about the availability of health care in Canberra and Perth; but (b) the objective evidence is not necessarily supportive of such belief in all relevant respects, especially in circumstances where the Mother had ample opportunity to provide relevant expert medical evidence but did not, or was not able to, do so;
(j)Although the signal Full Court decision in Sampson v Hartnett (No.10) was on the Mother’s list of authorities, Counsel for the Mother confirmed that no Order was sought requiring the Father to move to Perth, or any other (or similarly) more coercive Order;
(k)Again, Counsel for the Mother said, by reference to Ms S’s report, that the graduation of Y’s time with the Father should be more graduated and age appropriate; it was better to leave it to the parties to work that out as between themselves rather than impose a new regime of time and if it did not work out to alter it. Better to move gradually with the increase in time;[55]
(l)In relation to equal shared parental responsibility, while acknowledging that both parties sought such an Order, the Mother still sought an Order that in relation to matters pertaining to education, in the absence of agreement, the final decision for such things repose with the Mother;
[52] T 134.
[53] T 134.
[54] T 135 - 139.
[55] T 141.
Consideration & Disposition
There are two areas here to address: (a) evidentiary considerations and (b) the legislative pathway.
In relation to the issues of evidence, generally I agree with the submissions of the Father. By this I mean that:
(a)The Mother had more than ample time to marshal expert evidence about her health, which would have properly informed the Court (and the Father) about the present state of her well-being, detail in relation to her proposed treatment in Perth, and by specific reference to her own situation, what prognosis she has. None of this critical information was put before the Court;
(b)The letter from Dr W (Exhibit G) is both informative but also it left many questions unanswered, not the least of them being his statement that he last saw the Mother in 2007, while the Mother’s evidence was that he had seen her as an outpatient rather more recently but still perhaps 3 or so years ago.
(c)While I accept the Mother’s unbridled belief in the care that Dr W could and would provide in Perth, and the more general care available in Perth, again in the absence of expert evidence (without questioning the brief and limited evidence of Ms D and Ms H), in my view there was an air or element of either or both putting all of her health-care eggs in one basket (so to speak), being the wonders able to be wrought by Dr W and no one else (aided by the wonders of the health care system in Perth), and an almost abject, unrealistic rejection of more accessible health care options anywhere else in Australia. As important as “faith” in a particular physician is, the Court may take some sort of judicial notice of the fact that the Mother’s medication of choice (Tysabri) is available elsewhere in Australia (including the ACT – which the Mother acknowledged) and that other similarly talented physicians are to be found outside Dr W’s rooms in Perth (acknowledging his eminence);
(d)Further to this, the Mother’s evidence that she did not believe the accuracy of statements in medical records/letters, including by the (omitted) Hospital (by neurologist Dr L) offering to assist the Mother with her medication of choice, was unfortunate – to say the least. Respectfully, accepting her long history of association with various health care professionals, such categorical and all-pervasive statements of disregard for anyone other than Dr W in Perth (and the other health support available there) did not assist her case at all. It suggested a very closed view of her health care options available to her closer to the ACT than Perth that would thereby also benefit the children being able to remain in Canberra and in turn remain in much closer proximity to their Father and both sets of Grandparents, all of whom provide assistance and support to both parties and the children, which would not be available to the Mother in the same way or to the same degree if she moved to Perth;
(e)Because of these comments about the concerns regarding the Mother’s evidence and the significant gaps in it which could have (and should have) been filled or remedied but were not, I do not need to make or to draw any formal inferences adverse to these lacunae in her evidence in the light of the principles set out by the High Court in Jones v Dunkel.[56] That said, in my view, such comments or findings would readily be open to the Court in the circumstances I have outlined. The rule in Jones v Dunkel is to the effect that “unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.[57]
[56] Jones v Dunkel (1959) 101 CLR 298.
[57] See Jones v Dunkel at CLR 308, 312, and 320, and Cross on Evidence, J.D. Heydon, (Tenth Australian Edition) (Sydney: LexisNexis Butterworths, 2015) at [1215] ff.
The above discussion in relation to the deficiencies in the Mother’s evidence, in my view, subject to what else is said later in these reasons, is sufficient to warrant the Court having the most serious of doubts about the bases upon which the Mother’s case was run. The Court and the Father are both entitled to know the appropriate evidence that supports the Mother’s Application. Given the nature of it, especially regarding the need for medical treatment of a particular kind in relation to a particular medical condition, the deficiencies in her evidence made the task of the Court (and that of the Father) infinitely more difficult. It amounted to almost a case of procedural unfairness because of the lack of relevant, expert evidence to support her case. As was noted during the trial, there was not even a report from her general practitioner.
Further, accepting the Mother’s earnestly held subjective belief about the wondrous capacity of Dr W and the health care system in Perth, her corresponding disbelief in the efficacy of specialists and health systems elsewhere in Australia, while understandable up to a point, was not supported by the independent evidence, such as the offer by Canberra neurologist, Dr L.
Precisely because of the Mother’s failure to provide relevant and appropriate expert evidence that would enable the Court to make a more informed decision, in my view there is insufficient medical evidence for the Court to form a proper view about the prospects of the Mother’s health improving or remaining static if she were treated with her medication of choice at a health care facility closer to Canberra that would thereby enable the children to continue to have and to build their relationships with the Father, and with both sets of Grandparents.
The Mother clearly and obviously made the medical evidence central to her case, yet she provided no expert medical evidence. Her failure to do so made it impossible for the Court to assess any relevant risk to the children moving with her to Perth, in terms of the likelihood (or not) of the need for others to care for them because of either the Mother’s health deteriorating quickly and or because of the possible impact on her of treatment. The Court, and the Father, simply do not have any of this information.
As well, the Court may assume that Dr W, who is a clinical Professor at the University of Western Australia, is clearly and obviously a senior medical specialist. However, the Court has no information about or from him, such as how much longer he intends to remain in practice and such things. This would seem to be relevant given the Mother’s age of approximately 40 years. There was nothing before the Court to indicate what would happen to the Mother’s care if, upon her moving to Perth with the children, her preferred treating specialist retired or, for whatever other reason, he was no longer available to her. Again, the Court simply has no idea about any contingency health care plans for the Mother in the circumstance of such an eventuality, or anything similar (e.g. if there was to be a change in policy or funding for various health care services in Perth).
All of this is not a back-handed way of saying that the Mother has not provided “compelling reasons” for her desired move to Perth. It is simply highlighting the very serious evidentiary deficiencies in her case that could have, and should have, been provided to the Court (and to the Father). To the degree that it is appropriate to do so, on the basis of the lack of provision of appropriate expert medical evidence (as well as the deficiencies in relation to the lack of evidence from the Mother’s parents, and from her sister), the Mother’s case in relation to her desire to relocate to Perth is not relevantly established. Indeed, on the basis of the lack of evidence, it would not be in the best interests of the children that she be permitted to relocate to Perth. She had more than adequate opportunity to provide the requisite evidence; but she failed in this regard to a very significant degree.
For more abundant caution, lest there be any doubt, my focus has been on the best interests of the children, pursuant to s.60CA of the Act, rather than deciding matters on the state of the Mother’s evidence regarding the relocation. As detailed in many Full Court decisions, including Sayer v Radcliffe, the relocation has been but one of an array of matters for the Court to consider in making parenting Orders that are in the children’s best interests.[58]
[58] Sayer v Radcliffe (2013) 48 Fam LR 298.
I turn to the relevant considerations in Part VII of the Act.[59]
[59] Unless otherwise required, I should be taken to follow sequentially the “additional considerations” in s.60CC(3). In this regard I remind myself of the Full Court’s comments in Slater v Light (2012) 45 Fam LR 41 at [45] where it was said that there is no legislated order regarding the considerations in s.60CC and “it is well recognised that additional considerations may outweigh primary considerations despite the nomenclature of s.60CC(2) and (3).”
First, there are no “views” of the children to consider having regard to their respective ages.
Secondly, it has already been recorded that both children have good and close relationships with both parents. This is subject to comments by Ms S to the effect that because of Y’s age, she is still developing the relationship with her Father, which impacts on the suitability of her spending longer than two overnights per week with him.
Thirdly, both parents, to varying degrees have readily participated in decision-making regarding major long-term issues in relation to the children, noting (as earlier recorded in these reasons) that there have been formalised disputes before the Court regarding “X’s” name and in relation to his schooling. Each parent has also relevantly been involved in time with and communicating with both children. It follows (and was in fact recognised by Counsel for both parties) that there have not been any relevant concerns about the parenting capacities of either parent or in relation to either of the parties not maintaining the children in any relevant respect. The occasional question raised about the Father seeking to secure an extra overnight with Y does not, in my view, indicate a serious question of the Father’s parenting capacity. He has “pushed” for extra time with the children, but upon advice he has moved back; but more relevantly, the parents have been able to work out a significant number of matters without undue difficulty. Moreover, the “considerations” in Part VII are plainly matters to be considered in the light of the facts and circumstances of the parties and children in each case; they are not, per se, unyielding counsel of perfection. They must and do admit of the day to day imperfections of parents and children.[60] Here there are genuinely good, capable and caring parents who are dealing with a range of vicissitudes in their daily lives in the best way they know how. For the most part, they have been able to work most things out; they should be commended for this.
[60] The comments here are directed to both s.60CC(3)(ca), (f) and (j).
The heart of the case in terms of the “additional considerations” arises under s.60CC(3)(d) and (e). In this regard, I need only note summarily the following.
Given the very young ages of the children at the present time, any move to Perth by the Mother with them would, in my view, likely impact quite seriously on their relationships with the Father, and equally so on both sets of Grandparents. In this respect, therefore, such a move is not and cannot be in the children’s best interests.
Likewise, the practical difficulty and expense occasioned by the Mother’s move to Perth with the children would be very significant, notably for the Father who remains currently on a disability pension. Indeed, for any of the Grandparents and or the Father to visit Perth with any regularity would be a very significant expense. And apart from the Mother’s general evidence that she has calculated that she could (and would) provide finance to the Father for him to visit the children in Perth, given her limited financial means I am not at all convinced that she could properly or reasonably afford this not ungenerous offer.
Such significant financial imposts on all, in my view, are more likely than not to impact adversely on the children’s relationships with the Father and the Grandparents – on both sides. Again I stress that the children are still quite young. I accept that they have good relationships with everyone.
I note, however, the curious and somewhat anomalous arguments on behalf of the Mother: on the one hand her submissions were to the effect that Y especially (due to her young age) could not cope with spending an extra overnight with the Father, yet she saw no issue with the children being removed from the Father’s care/time with to a very significant degree and that she (the Mother would) ensure that the children kept up and developed their relationship with the Father whilst living in Perth and he remained in Canberra. This would occur via Skype and Facetime, accepting that these electronic means can and could never substitute for face to face time.
None of the other “considerations” in Part VII are relevant to the facts of the current matter.
Having regard to the evidence already outlined at length and considered earlier in these reasons, and to the “considerations” in Part VII of the Act (which must be taken to include, at least implicitly, s.60CC(2)(a) regarding the children having a “meaningful relationship with both parents, and s.60B(1) and (2)), in my view, it is not in the children’s best interests to move with their Mother to Perth. She may go there alone (but doubtless with the assistance of her sister in Perth) for medical and any other relevant treatment as she considers best for her. But absent any agreement with the Father in writing that she may remove the children from the ACT region, they must remain within the ACT. The risks and unknowns in relation to their care if the Mother was to relocate to Perth, and in the absence of specialist medical evidence regarding any prognosis that may (or may not) impact on her ability to care for the children if she was to become gravely ill, are of such a kind, size and dimension that there would be very significant risks to the children. The availability of care for the children in that eventuality is unknown. But what is much more certain is that for these quite young children, the Mother’s move to Perth with them would likely very seriously attenuate their relationships with the Father and all of their Grandparents – all of whom support the Mother in various but important and significant ways.
Both parties have sought Orders for equal shared parental responsibility. There is nothing to indicate that this Order should not be made. It will occur. And there should not be a specific Order in the Mother’s favour in relation to educational matters. Both parents should be involved in the decision-making for their children, especially in relation to major long-term issues.
Such an Order triggers the operation of s.65DAA of the Act. At the moment, given the young ages of the children, an “equal time” arrangement is not appropriate. The Orders generally contemplated by the Mother (but not formally stated to apply to the situation where the Mother remains in Canberra) as set out in her Orders sought under the heading “In the event that the Father also relocates to Perth” should be made. As put by her Counsel in submissions, the Mother’s Orders sought were something akin to a “base line” from which the parties could thereafter make such arrangements that they thought best. Generally, I agree with this submission. They generally accord also with the comments by the High Court in MRR v GR.Accordingly, the Mother’s Orders sought will be made – on the basal understanding that the Mother remains living in the ACT with the children.
The parents may, of course, make such other arrangements for “time with” between the children and the Father as they may, from time to time; perhaps best that such arrangements be recorded in writing (e.g. email). The parties have shown that they can and do work things out in an amicable way, by and large. There is, in my view, every prospect that this will continue. There certainly was no evidence that it wold not continue along this relatively peaceful path.
Finally, in relation to “X”; as previously determined, subject only to “nicknames”, he should be called by that name and no other. This matter has been ventilated and determined by the Court previously. It needs to be put to rest – for the sake of the child, and everyone else.
Given the trenchant concerns by the Father and the helpful considerations by the Mother, absent any other agreement between the parties in writing, the children shall attend any [local] non-(omitted) School.
The Orders indicated are, in my view, in the best interests of these young children. They are very fortunate to have such good, committed parents who clearly look after them so well.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 19 April 2017
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