Barton & Haselwood
[2021] FCCA 1770
•3 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Barton & Haselwood [2021] FCCA 1770
File number(s): CAC 263 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 3 August 2021 Catchwords: FAMILY LAW – parenting – relocation – where the mother seeks to relocate to City B, Queensland with the children to be with her partner – where the father opposes relocation – mother and partner engaged in open relationship – planned deception of the court evident in mother’s evidence – possible apprehension of bias by family consultant in going beyond her areas of expertise – court unable to accept and rely upon family consultant’s evidence – clear views expressed by children against relocation – consideration of best interests of children – lack of support available to mother and children in City B – relocation not permitted Legislation: Family Law Act 1975 (Cth), ss 60CC(3)(a) – (m), 65DAA Cases cited: AMS v AIF (1999) 199 CLR 160
Asher v Wilkinson (2020) 61 Fam LR 523
B & B [2006] FamCA 1207
Blanding v Blanding (2017) 55 Fam LR 218
KB v TC (2005) 33 Fam LR 471; (2005) FLC 93-224
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Cales & Cales (2010) 251 FLR 454; (2010) 44 Fam LR 376
Collu & Rinaldo [2010] FamCAFC 53
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Ebner v Official Trustee (2000) 205 CLR 337
F v F (2008) 38 Fam LR 52
Fox v Percy (2003) 214 CLR 118
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
HG v The Queen (1999) 197 CLR 414
Hepburn & Noble (2010) FLC 93-438
Jones v Dunkel (1959) 101 CLR 298
M v S (2008) 37 Fam LR 32
Magill v Magill (2006) 226 CLR 551
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Morgan v Miles (2007) 312 FLR 114; (2008) 38 Fam LR 275
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Paskandy & Paskandy (1999) 154 FLR 437; (1999) FLC 92-878
Payne v Payne [2001] Fam 473; [2005] 2 WLR 1826
P & P (2005) FLC 93-239
R v R (2000) 155 FLR 29; (2000) 25 Fam LR 712
In the Marriage of Radford & Alpe (1985) 10 Fam LR 135
Sealey & Archer [2008] FamCAFC 142
Sheldon & Weir (No.3) [2010] FamCA 1138
Sigley v Evor (2011) 44 Fam LR 439
Simmons & Kingley (2014) FLC 93-581
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) 214 FLR 433; (2008) 37 Fam LR 461
U v U (2002) 211 CLR 238
Vontek v Vontek [2017] FamCAFC 28
Wiley & Wiley [2008] FamCAFC 153Lewis and Short’s A Latin Dictionary (First Edition 1879; current impression, 1987)
Shorter Oxford Dictionary (Fifth Edition, 2003)
Macquarie Dictionary (Seventh Edition, 2017)R. Scruton, Sexual Desire: A Philosophical Investigation, (New York: The Free Press, 1986)
Number of paragraphs: 333 Date of last submission/s: 21 December 2020 Date of hearing: 10 & 11 June 2020 & 4 December 2020 Place: Canberra Counsel for the Applicant: Mr G Stapleton Solicitor for the Applicant: Farrar Gesini Dunn Counsel for the Respondent: Ms J Haughton Solicitor for the Respondent: Megan North Lawyers ORDERS
CAC 263 of 2020 BETWEEN: MS BARTON
Applicant
AND: MR HASELWOOD
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
3 AUGUST 2021
THE COURT ORDERS THAT:
1.The Mother’s Amended Application, filed 25 March 2020, to relocate to City B with the children is refused.
2.The parties have equal shared parental responsibility for the children, X (born: in 2008), Y (born: in 2010) and Z (born: in 2012) (“the children”).
3.Subject to any other Orders agreed in writing by the parties, the current five nights per fortnight arrangement for the children to live with the Father shall continue.
4.Both parties are to undertake a post-separation parenting course.
5.Within 14 days, the parties are to provide to the Court by email a Minute of the agreed Orders confirmed here, including all others that provide for regular telephone time for the non-resident parent, changeovers, and the like, birthdays and special occasions, as well as arrangements for X to be enrolled in high school in the ACT region.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Barton & Haselwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
This is a curious and troubling case.[1] The various “curiosities” and “troubles” are set out later in these reasons. At its base, the matter concerns the Court making Orders that are in the best interests of three children, X (who will turn 13 this year), Y (who is now 11 years old), and Z (who is 9 years old). The children all attend local Catholic schools. Accepting that this is not a Court of morals or ethics but of law, the import and possible provenance of this fact regarding the children’s locus for their schooling and related matters, is canvassed later in these reasons.
[1] Because of the relocation aspect of the Mother’s Application, and because, at the relevant time, she had a job opportunity in City B, the hearing of this matter was expedited on the Court’s own motion. As it happened, the hearing was not able to be contained within the originally allocated two days in June 2020. As explained in the body of the reasons, this was, in part, due to the Family Consultant not interviewing the Mother’s new partner, Mr C. It was also the case that the first Family Report did not address specifically the issue of the Mother’s proposed relocation to City B, a principal aspect of the matter. A second Family Report thus became necessary. The next available hearing date to complete the trial, and after the release of the second Family Report, was not until December 2020. Among other places, see Transcript (10th June 2020) p.3. Hereafter “T” followed by the page number
The Applicant Mother wishes to relocate to City B in far north Queensland to be with her “primary partner”, Mr C. The Father opposes the relocation.
To say that the relationship between the Mother and Mr C is somewhat complicated is something of an understatement. As explored and explained, as far as that is possible, later in these reasons, the Mother and Mr C contend that they are both – individually and jointly – practitioners (my word) in the art of “open relationships”. This is to say that, while they profess to be in a committed relationship with each other, they both engage in casual, regular sexual relationships (in Mr C’s case, sometimes these are longer-term relationships) with other persons outside their commitment to each other. They speak about a “primary relationship” and “secondary relationships” that are in place, with varying degrees of fluidity and focus (mostly, it would seem, sexual), at the same time.
Having previously lived in the ACT, Mr C now resides and works in City B. It is as a consequence of Mr C’s move to far north Queensland that the Mother presses her Application to relocate with the children to be with him. She acknowledged that she has neither family, nor any other support, in City B other than Mr C.
The evidence of the Mother and Mr C, her primary partner, was at least unusual; it was often surprising if not troubling. When the evidence of Ms D, a former and long-term paramour of Mr C was added to the equation, many would likely view some of the evidence regarding the content or detail of a range of relationships that primarily involved (or still involve) Mr C, at the time when he and the Mother said they were in a committed relationship, as on the salacious side. Parts of it might also be viewed as rather divorced from reality. Be that as it may, in response to a query from the Bench, Counsel for the Mother fairly and accurately stated the primary focus of the Court in the following terms (emphasis added):[2]
HIS HONOUR: Well, one of the difficulties, could I suggest, is that there are a number of views of at least two witnesses on their material that might be understood to be not regular in the sense of what is understood or comprehended by a committed relationship. Does it effectively amount to some form of quasi polygamous relationship? I don’t know.
MR STAPLETON: Well, the character or otherwise of the relationship between these two people cannot be a matter of personal, private subjective judgment or interpretation. The question for your Honour is not what other random members of the public think and what my client thinks they might think. It’s ultimately about what your Honour is going to think about the stability and the security of the relationship vis a vis the children. I just – the question, in my respectful submission, is unfair and far too broad.
[2] See T 35.
One further but important comment is necessary to make at the outset.
Evidence in family law matters is, by its nature, highly sensitive and deeply personal to the parties and witnesses involved. The Court endeavours to be as tactful and delicate as it can about such things. There is no pleasure in delving into highly personal, often very intimate (as was the case many times here), details of the lives of the people before it, either as parties or as witnesses. Nor, should it need to be said, is it a forum for voyeuristic consideration, or hurtful investigation, of the entrails of extremely sensitive and delicate evidence. However, the Court must deal with the evidence as it is presented to it, and how the case is run at the hearing. In many respects, the evidence in the current proceeding was extremely raw in emotion and often graphically delicate. Sometimes, no doubt, its consideration in the course of cross examination, felt less than delicate by the witness in the [virtual] witness box. Sometimes there was bluntness or directness. At times, there was no other way.
In a similar vein, the language and descriptions used in these reasons (e.g. paramour, Don Juan, etc) are never used (and certainly not intended to be used), as terms of derision, criticism, or moral judgment. As with the discussion more generally, such terms are used to assist in the consideration of the features, and especially the dynamic, of the relationship between the Mother and Mr C into which it is proposed by the Applicant that the children be immersed “full time”, for the first time, and in the completely new environment of City B. In my view, it was the dynamic and support features (or the lack of them) in this relationship, and the possible or likely flow-on effects for the children, that was most concerning for the Court and therefore why it occupied so much of the Court’s time.
As already noted, the Court is not a court of morals or ethics. The Court’s focus was, and has always been, on the best interests of the three children who are at the heart of this parenting dispute. From a human perspective, it was, up to a point, somewhat understandable that the Mother and Mr C attempted to keep the nature and the detail of their three year relationship hidden from the Father, and from the Court. Regrettably, as explained later in these reasons, this was a significant error of judgment, and did them no credit. In my view, it showed a concerning lack of insight in relation to the considerations that are, one would think, self-evidently important to a Court in this jurisdiction making parenting Orders, being cognisant of all relevant matters for their care, including the circumstances of the operation of the household of each parent. On the evidence, including their own admissions, they sought to put, and to protect, their personal interests above those of the children. It may not have been their primary intention, but it clearly was the effect of the planned concealment of the nature and incidents of their “open relationship”.
Before getting to substantive matters, it is important to note the following procedural and evidentiary matters that were raised at the commencement of the trial, together with something of an overview of some central elements of the parenting contest.
Procedural & other issues – plus brief overview
First, in her Affidavit, filed 8th June 2020 (par.8(c)), the Mother confirmed that if the children “definitely did not want to go” to City B, she would not pursue her Application to relocate with them. Both Counsel, with varying degrees of enthusiasm, confirmed that the views of the children recorded in the first of the two Family Reports were uniformly against the relocation. Notwithstanding the Mother’s sworn evidence just noted, she pressed her Application.
Further to this, in her cross examination, the Mother confirmed that she stood by her sworn statement that she would not press the Application to relocate if the children clearly did not wish to move. She went on to say that she did not believe that the children’s views (which she said were confused on the issue) had been accurately recorded in the Family Report – hence her pursuing her Application.[3]
[3] See T 85 – 86. In the same discussion, the Mother said that the children’s views would need to be “authentic and settled” before she might re-consider her move to City B. This was also in the context of the Mother (or Mr C) having no family or support in City B, as noted above.
Secondly, the first Family Report (which became Exhibit A1) did not directly address the issue of relocation. Given the centrality of this issue, one might have thought that it would have been considered directly. Quite unfathomably, it was not.
Thirdly, the Family Consultant, deliberately or otherwise, did not interview Mr C for the first Family Report. Given that he had been, to a certain degree when he lived in Canberra, and was proposed to be in City B, part of the Mother’s household (subject to what is said later in these reasons), this was a surprising and unfortunate omission.[4] The two obvious and important, but originally omitted, aspects of Mr C’s evidence from the perspective of the Family Consultant was (a) the assessment of his relationship with the children, and (b) his relationship with the Mother. Some of the deficiencies noted (and others recorded below) were remedied, to a degree, following the Court insisting that he be interviewed and a second or supplementary Report issue. The second or supplementary Report, released on 6th July 2020, became Exhibit A2.
[4] See some preliminary discussion regarding relevant omissions from the first Family Report and the discretion initially left to the Family Consultant as to whether Mr C should be interviewed. T 3 – 4.
Related and unexamined areas not canvassed in the original interviews and first Family Report concerned (a) the nature of the Mother’s and Mr C’s relationship given that, on Ms D’s evidence – one of Mr C’s longer-term partners – she and Mr C were in a relationship at the same time that Mr C and the Mother were also in a relationship; and (b) that Mr C and the Mother had not actually lived together but were now proposing to do so in City B with the children. On the Mother’s evidence (noted later in these reasons in detail), she and Mr C propose living a monogamous relationship while-ever the children are living with them in City B, but when the children are with the Father, they propose resuming their open relationship(s) with others, according to their respective wishes. This is in circumstances, on the Mother’s evidence, where Mr C has never lived in an exclusive, monogamous relationship. As Counsel for the Father described it in opening remarks, for most of the relationship with the Mother, Mr C seems to have been in a permanent part-time relationship with at least two women.[5]
[5] T 10. Later in these reasons is a Chronology (provided by the Father as an “aide-memoire”, cross-referenced to Affidavits filed) of the relationships of Mr C recorded in the evidence but which has been amended by the Court to more accurately record the evidence it summarised.
Fourthly, having fixed the hearing with a significant degree of expedition, and in the light of the various procedural and evidentiary “issues”, the Court expressed alarm (and other things, such as use of scarce public resources) at the matter not being able to be confined to the days allocated for the hearing. As it turned out, a further, third day had to be found to conclude the hearing, and written submissions were then later filed. To put it as neutrally as possible, the evidentiary and procedural hiccups, and lacunae more generally, should not have occurred and should have been addressed well before the hearing. It was (and remains) concerning that they were not.
In relation to some more substantive matters, by way of brief overview, I note the following.
Early in her oral evidence, the Mother confirmed that she was aware that, since his move to City B, Mr C has had, and continues to have, a series of sexual relationships with a number of partners. For example, she confirmed that she was aware that, at the time of the hearing, Mr C had advised her that he was in a sexual relationship with “a number of women”, one of whom is a public servant named Ms E.
The Mother said that (a) she saw nothing inconsistent with her multiple, “open relationships”, on the one hand (and implicitly nothing untoward in Mr C’s multiple relationships while in a relationship with her), and the ethical/moral norms traditionally espoused in Christian schools the children attend and would be taught, on the other, and (b) Mr C “enriched” her as a Mother.[6] As to (a), even Mr C acknowledged that, while he accepted the basic ethos and principles of the more usual or classical teachings of Christianity, his propensity for multiple, sexual partners did not quite accord with some key parts of those teachings, as the following exchange confirmed (emphasis added):[7]
Would you accept as a very general proposition that the kind of lifestyle – and again I’m really trying to look at it from the perspective of the environment for the children – that the kind of free and relaxed and seemingly unbounded lifestyle that you and the mother have in certain areas is the complete opposite to what the kids would be taught at school and the ethics and so forth there?‑‑‑No, I – I – I – I view it slightly differently.
I would be ‑ ‑ ‑?‑‑‑I thoroughly ‑ ‑ ‑
I’m all ears?‑‑‑Yes. So I am thoroughly in favour around the – the morals that they teach in Catholic school. My son attended the Catholic system in Canberra. He went to F School and then also went on to G School, and the core values that they teach are not dissimilar to the core values I have, you know. The only – the only one is in regard to the non-monogamous relationship we have. We value trust; we value respect. We don’t live a – a radical lifestyle. We live a very conservative lifestyle ‑ ‑ ‑
Except in one area, could I suggest?‑‑‑ ‑ ‑ ‑ from all aspects. That’s – that’s correct. And that – that area is something which, you know, until it had been dragged out into this public forum, would have been something which we would have very successfully have kept to ourselves as a very private matter, as, you know, most couples will have their own private matters when it comes to that side of the relationships.
[6] T 104.
[7] T 133 (day 2 of the trial)
The above exchange also highlighted the intention of the Mother and Mr C to keep secret, including from the Court, the nature and extent of their relationship, together with its rich and varied tapestry of contours. As noted elsewhere, how and why the Mother and Mr C thought it (a) to be a good idea to keep their relationship and its features “private”, (b) that it was of no interest or relevance to the Court in a parenting matter, and (c) where they had not (strictly speaking) previously lived together full-time with the children (but would do so in City B), borders on the astonishing.
Further, subject to what is said later in these reasons, the Mother’s judgment, certainly on this aspect of the ethical inconsistency regarding what she and Mr C selectively but deliberately practice in their quasi-conjugal/polyamorous relationship, on the one hand, and what the children are taught at school (whether in the ACT or in Queensland), on the other, and a few other things noted below, in my view, was plainly awry as well as potentially quite fraught.
According to SMS exchanges between Mr C and Ms D in June 2018, he certainly recognised that there were some ethical anomalies in his conduct, to put it somewhat euphemistically. These SMS exchanges, which refer specifically to what he described as his “lack of moral fibre”, were put to the Mother (emphasis added):[8]
And he sent her texts in June of 2018 telling her that it’s just about his lack of moral fibre and he’s just “fucked up”. If his Honour accepts that he sent those, you would expect that that’s showing that he knows that he’s doing the wrong thing; you accept that?‑‑‑Sorry, was that to me – sorry.
Yes, yes. Sorry, that in page 13 – paragraph 13 of Ms D’s affidavit, she talks about how his actions have hurt her and he says it’s not a reflection on him loving her, it’s about his lack of moral fibre, and he goes on, as always, to send her texts saying he loves her. So do you accept that he hadn’t told – I withdraw that. Do you accept that he sees his own conduct in having sex with you both as demonstrating lack of moral fibre?‑‑‑Well, that’s what he has written. That’s what he texted.
[8] T 48.
Exactly how Mr C “enriched” her as a Mother, apart from some unexplored statements in re-examination, was neither explained nor apparent on the evidence.[9] Indeed, how the Mother could contend that she was “enriched” in her relationship with Mr C when he readily admits that (i) he has lied to her more than once about his assignations, and (ii) (accepting the somewhat visceral nature of the observation) he is regularly in the arms of other women, presumably telling them of his love for them, or how much they mean to him, or similar sentiments, while also telling the Mother similar affirmations, remains something of a mystery. I suggest that it requires a certain je ne sais quoi on her part, perhaps not least a discernible capacity to ignore basic facts, and or to delude herself about her life or that of Mr C.
[9] See the declaratory statements of the Mother regarding this enrichment at T 104.
Further, as already noted, Mr C said that the Mother was (and is) aware of his multiple sexual partners, including his former partner, Ms D. Ms D, by Affidavit filed 3rd June 2020, provided a remarkably candid and highly detailed account (but much shorter oral evidence) of her approximately 3 year relationship with Mr C, which she expected to be long-term. On the evidence discussed later in these reasons, this was not an unreasonable expectation.[10] The Affidavit’s Annexures in particular were replete with voluminous, and explicit, “intimate messages” between them.
[10] Among other places, see pars.6, 9, 28 and 34, plus the annexures referred to in those paragraphs in Ms D’s Affidavit, filed 3rd June 2020.
One immediate and poignant example is apposite at this early stage. Subject to what is said later in these reasons, the relationship between Mr C and the Mother operated on either Mr C lying to her about travel with Ms D on a number of occasions (e.g. trips to City H, and to Country J – with photos provided by Ms D), and/or that they both operated on the unusual basis of a (in my words) “don’t ask, don’t tell” management of the relationship.[11] The Mother explained in her oral evidence (emphasis added):[12]
When did he [Mr C] tell you he started seeing Ms D?‑‑‑He told me that he started seeing her in 2017; is that what you’re asking?
Yes?‑‑‑Yes.
And did he tell you why it had taken him three years to stop seeing her?‑‑‑It was not our nature that we knew details about each other or our other partners so it wasn’t ‑ ‑ ‑
Yes, but I suggest – sorry – sorry. Go ahead?‑‑‑So it wasn’t that we needed to know anything about the other partner.
That’s not what I asked but perhaps I didn’t say it – ask the question clearly. You find out on 23 April this year that he has been in a sexual relationship with Ms D since 2017; yes?‑‑‑Yes.
And he tells you on 23 April this year that he’s concerned about Ms D and her mental health, “…if I stop seeing her”; yes?‑‑‑Yes.
And given that he told you he had been seeing her for three years, did he tell you why it had taken three years for him to stop seeing her?‑‑‑No, we did not have that conversation.
[11] The Mother accepted this description of the relationship; see T 68 & 87. Subject to the discussion of Mr C’s evidence later in these reasons, at T 69, the Mother accepted also that, as she understood it, Mr C had been in “open relationships” all his adult life.
[12] T 30.
Later in her evidence, the Mother accepted that, having been lied to by Mr C on at least two occasions, and having regard to the detailed evidence set out in Ms D’s Affidavit material, it was a reasonable view that she had been the subject of a systematic program of deception, and that she had been “blind-sided” about a range of matters, by Mr C.[13]
[13] T 87.
Mr C admitted in his oral evidence that he had lied to the Mother about, among other things, a weekend away with Ms D in 2019. Mr C had told the Mother, and provided “staged” photographs to prove, that he was “going fishing” at the coast. The photos included him sleeping, a tad awkwardly but perhaps furtively too, in a sleeping-bag in his car.[14] He was in fact spending the weekend with Ms D in a hotel at the coast. Presumably she took the photographs to assist in his orchestrated ruse to deceive the Mother.
[14] See Exhibits B & G. Exhibit G is the photograph of Mr C “sleeping” in his car. Perhaps curiously, perhaps not, no information was given as to who took the photograph, although it was suggested that Mr C had taken a “selfie”. Given that he was in a sleeping bag, with the picture showing that he was “enclosed” in the sleeping bag, it is doubtful that he could take such a photograph without other assistance.
In the course of her cross examination, the Mother twice confirmed that Mr C had told her that he wanted to go away fishing “for some time” because he “needed time to think”, having recently lost his job. In this context, the Mother acknowledged that it “appeared” that Mr C had lied to her about this trip.[15]
[15] See T 77 – 78.
In the circumstances outlined, how the Mother could maintain that Mr C, who acknowledged that he lied to her to be with another woman (and on more than one occasion), “enriched” her role as a Mother, was entirely unclear if not lacking in certain respects, such as the importance of truth-telling and good judgment. The Mother’s apparent indifference to her being deceived, and lied to, by Mr C was surprising, to say the least.
The nature of much of the Mother’s oral evidence, a degree of oscillation in her account of events, and her consideration and insight into them for the purposes of the matters before the Court, are captured well in the following exchange regarding Mr C’s City H “mental health/fishing trip” (emphasis added):[16]
[16] T 43.
I call for a copy of that photo of – if there is one – of Mr – that Mr C sent you on the weekend of 25 November last year when he was in City H. Now, if he was telling you he was going fishing, that was because he didn’t want you to know that he was away with a woman, let alone Ms D; do you accept that?‑‑‑I don’t need to know details about the relationship, yes.
Well, okay, but if he tells you he was going fishing, when in fact he was with Ms D, do you agree that he wasn’t telling you the truth?‑‑‑Sorry, just repeat that question.
Right. So you say he told you he was going to City H fishing and he was going to sleep in the car, but in fact he was going away for a weekend with Ms D. So you would accept that if he – he must have been lying to you about what he was doing; do you accept that?‑‑‑By Ms D?
He was with Ms D. He wasn’t sleeping in his car and fishing, he was in a ‑ ‑ ‑?‑‑‑Yes.
Having a sexual relationship with Ms D?‑‑‑That’s correct.
All right. So do you accept that he lied to you about what he was doing that weekend?‑‑‑Yes. It would seem that way, yes.
And if it were true that you were in an open relationship and he could have sex with whoever he wanted, he had no reason to lie to you, did he?‑‑‑I didn’t need to know details and we never talked about details of anything ‑ ‑ ‑
I want to suggest the reason he lied to you is because it wasn’t an open relationship. The only person that was having sex at – in an open relationship was Mr C, not you and Mr C?‑‑‑Incorrect.
Another example of the Mother’s apparent insouciance regarding Mr C’s practice for multiple other sexual relationships with other women while in a relationship with her, which in turn (in my view) must cast significant doubt upon issues like the stability of their relationship, is the following exchange regarding a different but apparently ongoing relationship between Mr C and other women (emphasis added):[17]
[17] T 43 – 44.
And have you read Ms D’s evidence where after you moved to Suburb K in July last year, because prior – well, prior to that, because you lived so close to Ms D, she was able to slip between the two houses fairly easily and that he – for example, she would say, in paragraph 27 of her affidavit, that he would slip over to her place for sex after one of the boys’ sports lessons; remember reading that?‑‑‑Yes.
And he told her in paragraph 25 of her affidavit that he was going to have to create windows of time for him to be with her so you didn’t know; do you remember reading that?‑‑‑Sorry, create time for windows?
Well, because prior to you moving to Suburb K, it was easier for him to slip between your house and Ms D’s, wasn’t it? And so it was easier for him to get away so you wouldn’t know; that’s true, isn’t it?‑‑‑Well, there was more opportunity because we were closer.
Yes?‑‑‑Yes.
And so when you were going to Suburb K, that meant that he then had to actually come up with excuses as to why he wasn’t at your house, and in – and she says that he told her he was expected to be at your place for dinner?‑‑‑ ..... together, yes.
Remember that? And so if he had to create windows of opportunity to go and spend time with her, I want to suggest to you that’s because he couldn’t tell you he was going off to have sex with another woman, because you wouldn’t have liked it; that’s true, isn’t it?‑‑‑No, the details were not required within our relationship, not because I didn’t like it.
And he didn’t – it – he didn’t need to tell you the details. He didn’t need to lie either, did he? He could just say, “I’m going out”?‑‑‑He could just say, “Sorry”.
He’s just going out. Or he could tell you, “I’m going to have sex with a woman. I’m not going to give you her name, but I’m going to have sex with my other friend”; could he have told you that?‑‑‑Our agreement is that we don’t need to know details, nor want to know details.
All right?‑‑‑So he can say whatever.
And in – it was the case, wasn’t it, that you became aware that he had been having a sexual relationship with his former fiancé Ms L in – you found that out in November 2018, didn’t you?‑‑‑I knew that he was still seeing Ms L when I met him.
Right. But you know, don’t you, that Ms L was – he – in a sexual relationship with him and given him back his engagement ring at one stage?‑‑‑Correct.
And he was having sex with her while he was in a relationship with you; that’s true, isn’t it?‑‑‑I’m – yes. Yes.
And she gave him back the engagement ring because he – she asked him if he would then give it back to her at some stage because they were having a sexual relationship; that’s true, isn’t it?‑‑‑I don’t – I don’t know the conversation they had together. I don’t know the details of that.
So he has not told you about the engagement ring issue with Ms L?‑‑‑I know there was an engagement ring and I know that he returned it to her.
And at some stage, he – after she saw photos of you with him on somebody’s Facebook page, she went to his house and was very angry and was yelling at him; you know about that, don’t you?‑‑‑Yes.
And at some stage you actually tried to get an AVO against Ms L because she was sending you screenshots of her communications with him; that’s true, isn’t it?‑‑‑I spoke to Mr C about an AVO, yes.
It is as well also to note some matters that arose at the commencement of the trial, which were canvassed with Counsel for the parties. They stemmed from the large Affidavit of Ms D, filed in the Father’s case on 3rd June 2020, shortly before the trial commenced. Having raised with the parties where and how Ms D entered the litigation, it is important to record the following from addresses by Counsel for the parties. First, Counsel for the Mother said, in part:[18]
MR STAPLETON: From my client’s point of view – your Honour will see at – and I’ve resisted answering this and I’ve noticed that my learned friend has also resisted answering it – but the evidence will be that some time last year it appears as though Ms D became aware that Mr C was going to move to City B. And then short time later it appears Ms D, from her own evidence, became that Mr C was going to travel to Canberra from City B in order to support my client’s application to relocate to City B together. And then there is a mysterious Facebook conversation between a lady called Ms M and my client. Now, neither Ms D nor Mr Haselwood have explained to your Honour through their evidence who Ms M is but Ms D has also provided – well, in fact, sent to Mr C copies or screenshots of text messages between herself and Mr Haselwood in a discussion between the two about whether or not or how this information will be sent.
This information about this relationship will be sent by Ms D to family members, being the family members of my client being her brother and sister-in-law and her sister and brother-in-law and her parents. And indicating – and this is in tender bundle 2 of our court book we sent your Honour yesterday – and these are Facebook messages or text messages between Mr Haselwood as well – whereby there was a solicited plan to provide a letter either by Ms M or by Ms D herself to my client’s brother and sister in an attempt, it appears, to what I would loosely describe, but not characterise completely, blackmail my client into withdrawing her application on the basis of the humiliation and embarrassment that will be caused to her by the exposure of this information.
[18] T 20.
A little later in the same address, Counsel for the Mother said:[19]
… there’s a very serious difficulty with the possibility of Ms D’s evidence being the reason why my client’s application should fail. The conduct of the father is, in my respectful submission, entirely inconsistent with a person who’s promoting the best interests of his children above anything.
[19] T 21.
Counsel for the Father, said in reply, in part:[20]
MS HAUGHTON: Your Honour, I can indicate that my instructions are that on 26 April my client received a letter apparently from Ms D which he then took to the police. The trial directions were made two days later and – so therefore he had not had an opportunity to understand what (a) that she would be a witness, or (b) what the evidence was likely to be. In my case outline on page – I’ve done two chronologies, one family chronology and the chronology of Mr C’s relationship with women. And it is on page 12 of that document where I’ve addressed that on 18 April this year Ms D’s evidence is that Mr C was showing her a virtual tour of the house and that his relationship with Ms E – that’s his lady in City B.
And then the mother and her – on 23 April he then apparently tells the mother about Ms D and that’s referred to in paragraph 68 of the mother’s affidavit in reply where he says he’s worried about Ms D’s mental health if he stops seeing her. So that’s the first time there seems any evidence that the mother was aware of Ms D. And then on 25 April Ms D says that Mr C threatened to humiliate her if she didn’t tell – convince my client that what Ms D was going to tell him was false. Then the mother says on 25 April she communicated with someone called Ms M on Facebook and that Ms D contacted her on 1 May 2020.
The reality is, is that my client was not aware at the time the trial dates were set of the nature or extent of the evidence of Ms D…
[20] T 21.
A little later, the Mother answered as follows regarding (a) her knowledge of how long Mr C had been in a sexual relationship with Ms D, which had existed since 2017 (other relationships involving Mr C are noted in the course of the evidence), and (b) certain information that had been omitted from her trial or primary Affidavit, filed 25th May 2020, but put into her Affidavit in Reply. Thus (emphasis added):[21]
[21] T 30 – 31.
And do you say during this conversation on 23 April 2020 he told you everything that ended up in Ms D’s affidavit?‑‑‑I would say the majority, yes. There’s not anything that I don’t know that has been submitted in the affidavit from the conversation we’ve had.
And what I want to suggest to you is this; is that when you filed your trial affidavit on 25 May 2020 you at that time knew he had been in a long-term part-time relationship with Ms D, didn’t you?‑‑‑I knew that he had been in a long-term – seeing other people ..... in a relationship, yes.
Well, according to you, by 23 April you knew everything that Ms D had put in her affidavit. But, of course, you didn’t have the affidavit then. So you say that on 23 April 2020, “I knew everything that Ms D put in her affidavit”, don’t you?
HIS HONOUR: Ms D.
MS HAUGHTON: Ms D, sorry. Ms D, she’s the actress, of course?‑‑‑ ..... so what I say is that the information that was provided by Ms D in the affidavit, I was aware of when Mr C and I had a conversation about it.
So when you filed your affidavit on 25 May 2020, you knew how much he had been spending with her, didn’t you?‑‑‑Yes.
And you knew that it had been happening since about February 2017, didn’t you?‑‑‑Yes.
And in your current – in your affidavit in reply you finally tell the court that, in fact, you weren’t in an exclusive relationship with Mr C, don’t you?‑‑‑Yes.
And you say in paragraph 61 that if you’re “…permitted to relocate to City B with the children the nature of our relationship will have to change to some degree as we will be living together full-time and sharing a home”. You put that in your affidavit. And that’s because you knew that that was relevant evidence the court needed to know in deciding whether to permit you to relocate to City B to be with Mr C. That’s true, isn’t it?‑‑‑It is evident that that is important in the court now, yes.
Among many things that could be said, the Mother’s last-quoted response was, in my view, remarkable, as were some of her other responses. While she regularly acknowledged that she had experienced lawyers acting for her throughout the proceedings (and earlier regarding a binding child support agreement with the Father), how or why the Mother had, apparently, only “now” become cognisant of the significance and importance of her relationship with Mr C, with all of its features and multi-layered textures, for the purposes of her parenting Application to relocate, was not explained.
Put another way: it was alarming in the extreme that the primal relationship, and its unusual and graphic features with multiple partners, between the Mother and Mr C did not feature in her primary Affidavit, filed 17th February 2020. Likewise in her Affidavit, filed 25th May 2020, nor in Mr C’s Affidavit, filed 19th May 2020, was there any mention of the unique features of their joint and several “open relationship” with multiple partners. There is reference to the relationship between them in the Affidavits referred to. However, invariably it is always and only in terms of being in a “very committed relationship” with each other.[22] The Affidavits noted are completely silent about the true nature, and features of, the relationship between the Mother and Mr C, and their multiple other partners, sometimes called “fans”, sometimes “friends with benefits”. The detail of their relationship only came to light with the filing of Ms D’s Affidavit, which seems very clearly to have forced the hands of the Mother and Mr C. With some concern, Counsel for the Mother seemed to acknowledge this, albeit tactically submitting that the filing of the Ms D Affidavit was some form of procedurally dastardly deed on the Father’s part – hence the exchanges quoted above from Counsels’ addresses early in the trial.
[22] See, for example, par.5 of the Mother’s Affidavit, filed 14th February 2020, and pars.74 – 79 of her Affidavit, filed 25th May 2020.
Whether or not the Mother (or Mr C) disclosed the range and details of their polyamorous relationship(s) with their lawyers when the Affidavits referred to were filed was a problematic matter that was not explored. The Mother’s evidence was a tad clouded: she said that she had disclosed her relationship with Mr C to her lawyers but, it would seem, not the details and particular features of it until after Ms D’s Affidavit was filed. She confirmed however that she and Mr C originally decided that no one – not the Court, not her lawyers, and not the Father – needed to know anything about such detail.[23] This was, in my view, an imprudent, factually deceptive and improper judgment, mutually taken by the Mother and Mr C. Among other things, it patently put their relationship, which they confirmed they wished, and sought, to keep secret or private, above all else. Alarmingly, it necessarily appears to be the case that they considered their relationship to be the priority rather than the interests of the children. If deception was necessary in this regard, so be it.
[23] See, for example, the discussion at T 33.
With all of this said, a little earlier in my discussions with Counsel, I raised my concerns about the nature of the graphic, extremely personal and intimate evidence before the Court, and the risks for everyone in that evidence being explored in cross examination. It was, I said at the time, a “pastoral concern for the parties and the other witnesses.”[24] This was noted and acknowledged by Counsel.
[24] See T 11 – 12.
For the reasons given, and those set out at length below, in my view it is not in the best interests of the children to relocate with their Mother to City B. If she wishes to relocate without them, that is entirely a matter for her. In my view, on the evidence of the Mother and Mr C, the foundations for the children to make such a significant move to far north Queensland, and thereby so far removed from their Father with whom they have spent very regular and significant time since separation of the parties, are so problematic as to be clearly not in their best interests.
Applicant’s Orders sought
The Mother’s Orders sought were outlined in her Amended Initiating Application, filed 25th May 2020. They were as follows:
Parental Responsibility
1.That the parties have equal shared parental responsibility for the children:
(a) X, born in 2008
(b) Y, born in 2010; and
(c) Z, born in 2012;
(the children)
Live With
2.That the children live with the Applicant Mother
3.That the Applicant Mother be at liberty to relocate with the children from Canberra to City B, Queensland.
Time with the Father during School Terms
4.That the children spend time with the Father in City B for one period of up to 7 consecutive nights during each school term, as nominated by the Father subject to Order 5 below.
5.For the purpose of Order 4 above, the Father shall provide the Mother with written notice by way of text message or email of his intention to spend time with the children in City B at least fourteen (14) days prior to the commencement of the Father’s proposed time with the children.
Time with the Father during School Holidays
6.That the children spend time with the Respondent Father in Canberra during the Queensland gazetted school holiday periods as agreed between the parties in writing and failing agreement:
a.For the school holiday periods occurring at the conclusions of Terms 1,2 and 3 as follows:
i.In 2020 and each alternate year thereafter, subject to Order 8 below, from 1:00pm on the first day immediately following the last day of required school attendance that term until 3:00pm on the Sunday in the middle of the school holiday period;
ii.In 2021 and each alternate year thereafter, subject to Order 8 below, from 3:00pm on the Sunday in the middle of the school holiday period until 3:00pm on the Sunday immediately prior to the first day of required school attendance for the next term.
b.For the school holiday periods occurring at the conclusion of Term 4 as follows:
i.In 2020 and each alternate year thereafter, subject to Order 7 below, from 3:00pm on the middle day of the school holiday period until 3:00pm on the Sunday immediately prior to the first day of school for the next term.
ii.In 2021 and each alternate year thereafter, subject to Orders 7 and 8 below, from 1:00pm on first day immediately following the last day of required school attendance that terms until 3:00pm on the middle day of the school holiday period;
7.That for the purpose of Order 6b hereof, unless otherwise agreed between the parties in writing:
a.The school holiday period commences on the first day immediately following the last day of required school attendance that term;
b.The school holiday period concludes on the Sunday immediately prior to the first day of required school attendance for the next term;
c.The middle day of the school holiday period shall be calculated by dividing the number of nights in that school holiday period by two, and in the event of an odd number of days, the parent with whom the children spent Christmas Day that year, shall have the extra day with the children.
8.That for the purpose of Order 6 hereof, in the event there are no flights available permitting changeover to occur at the stipulated time set out in that Order, unless otherwise agreed between the parties in writing, the following shall apply:
a.The parties shall book the flight that arrives at the changeover location at the closest time available to the changeover time; and
b.Notwithstanding Order 8a hereof:
i.In relation to the changeover on the first day immediately following the last day of required school attendance, the parties shall book the first flight available departing after 8:00am that day;
ii.In relation to the changeover on the Sunday immediately prior to the first day of school for the next term, the parties shall arrange for flights to be booked such that the children are returned to the Mother’s care no later than 5:00pm.
9.For the purposes of time between the Respondent Father and the children that occurs in Canberra:
a.The Applicant Mother shall pay for the costs of the children’s flights to Canberra from City B;
b.The Respondent Father shall pay for the costs of the children’s from Canberra to City B; and
c.Each party shall provide the other with a copy of the booked flight tickets at least 14 days prior to the departure of the flight.
Special Days
10.That notwithstanding any other Order hereof, during special days unless otherwise agreed between the parties in writing, the following shall apply:
a.On each of the children’s birthdays each year:
i.In the event the children are in the Father’s care pursuant to Order 4 above, the Mother shall be permitted to spend time with the children from after school until 6:00pm on a school day or from 10:00am until 1:00pm on a non-school day;
ii.In the event the children are not already in the Father’s care pursuant to Order 4 above, the Father shall be permitted to spend time with the children from after school until 6:00pm on a school day or from 10:00am until 1:00pm on a non-school day.
b.On Mother’s Day, in the event the children are in the Father’s care pursuant to Order 4 above, the Mother shall be permitted to spend time with the children from 10:00am until 4:00pm;
c.On Father’s Day, in the event the children are not already in the Father’s care pursuant to Order 4 above, the Father shall be permitted to spend time with the children in City B if he elects to travel to City B, from 10:00am until 4:00pm.
Communication with the children
11.That the children have telephone and/or FaceTime communication with the parent with whom they are not living as agreed between the parties in writing, and failing agreement, a minimum of three (3) times per week on Monday, Wednesday and Friday mornings at 8am, and at such other times as the children reasonably request to speak to the other parent.
12.For the purpose of Order 9, the parent with whom the children are living is to facilitate such communication.
Communication between the parties
13.That the parties shall communicate with each other either only via text message, email or other communication application agreed between the parties, unless it is an urgent issue regarding the health or welfare of the child, in which case the quickest form of communication shall be used to contact the other parents including by telephone call.
14.Each party shall advise the other party in writing of any change of address, email address or contact telephone number within 24 hours of such a change occurring.
Restraints
15.That each party be restrained by injunction from denigrating the other parent and/or their partner, family members and friends to the children or in the presence of the children, and shall do all things reasonably necessary to remove the children from any environment in which the other parent and/or their partner, family or friends are being denigrated in the presence of the children.
16.That each party be restrained by injunction from passing information or messages through the children to the other parents.
17.That each party be restrained by injunction from discussing these proceedings and/or their family law dispute with the children.
Information Sharing
18.That both parties shall authorise by these Orders any school attended by either child, to provide to either parent, upon request, any reports, information or photos relating to either child at the requesting parent’s cost.
19.That the parties shall authorise by these Orders any of the children’s General Practitioner or treating medical and/or allied health practitioner/s to provide either party with any information or medical reports relating to the children at that parent’s cost (if any).
Family Report Costs
20.That within 14 days from the date of these Orders, the Respondent Father shall pay to the Applicant Mother the sum of $3,300 (equivalent to 50% of the costs of the Family Report from Ms N).
Respondent’s Orders sought
The Father’s written submissions confirmed that he sought Final Orders in accordance with paragraphs 1, 2, 3b and 4 to 13 of his Amended Response filed 3rd June 2020. These were as follows:
1.That the Mother’s Application filed on 14 February 2020 to relocate to City B with the children be dismissed.
2.That the children shall spend time with the Respondent from after school or 3pm on Friday until after school or 3pm the following Friday.
3.In the event that the Court permits the Applicant to relocate with the children to City B then I seek the following orders:
b. That the parties have equal shared parental responsibility for the children:
i. X, born in 2008
ii. Y, born in 2010; and
iii. Z, born in 2012.
4.That the children spend time with the Respondent in City B for one period up to 9 consecutive nights during each school term, as nominated by the father in writing provided that he gives that Applicant at least 30 days of his intended travel.
5.That the Respondent shall be at liberty to contact the children each Monday, Thursday and Saturday between 6pm and 7pm.
6.That the children shall spend time with the Respondent in Canberra during the Queensland gazetted school Term 1, 2 and 3 holiday periods as agreed between the parties in writing, but failing agreement:
a.In even years, the Respondent shall spend the first half of the school holiday period, to commence on the first day immediately following the last day of required school attendance of that term until the Sunday in the middle of the school holiday period.
b.In odd years, the Respondent shall spend the second half of the school holiday period, to commence on the middle Sunday of the school holiday period until the Sunday prior to the commencement of school.
7.That the children shall spend time with the Respondent during the Christmas school holidays period (Term 4) as follows:
c. In off years, the Respondent shall spend the first half of the school holiday period, to commence on the first day immediately following the last day of required school attendance of that term until the Sunday in the middle of the school holiday period.
d. In even years, the Respondent shall spend the second half of the school holiday period, to commence on the middle Sunday of the school holiday period until the Sunday prior to the commencement of school.
8.That for the purposes of time between the Respondent and the children that occurs in Canberra:
a.The Respondent shall pay for the costs of the children’s flights to City B from Canberra;
b.The Applicant shall pay for the costs of the children’s flights from Canberra to City B; and
c.Each party shall provide the other with a copy of the booked flight tickets at least 14 days prior to the departure date of the flight.
9.That in the event the Applicant seeks to relocate without the children, I see the following orders:
10.That the parties have equal shared parental responsibility for the children:
iv. X, born in 2008
v. Y, born in 2020; and
vi. Z, born in 2012.
a.That the children spend time with the Applicant in Canberra for one period up to 9 consecutive nights during each school term, as nominated by the father in writing provided that she gives the Respondent at least 30 days of her intended travel.
b.That the Respondent shall be at liberty to contact the children each Monday, Thursday and Saturday between 6pm and 7pm.
c.That the children shall spend time with the Applicant in City B during the Queensland gazetted school Term 1, 2 and 3 holiday periods as agreed between the parties in writing, but failing agreement as follows:
e. In even years, the Applicant shall spend the first half of the school holiday period, to commence on the first day immediately following the last day of required school attendance of that term until the Sunday in the middle of the school holiday period.
f. In odd years, the Applicant shall spend the second half of the school holiday period, to commence on the middle Sunday of the school holiday period until the Sunday prior to the commencement of school.
11.The children shall spend time with the Applicant during the Christmas school holiday period (Term 4) as follows:
g. In odd years, the Applicant shall spend the first half of the school holiday period, to commence on the first day immediately following the last day of required school attendance of that term until the Sunday in the middle of the school holiday period.
h. In even years, the Applicant shall spend the second half of the school holiday period, to commence on the middle Sunday of the school holiday period until the Sunday prior to the commencement of school.
12.That for the purposes of time between the Applicant and the children that occurs in City B:
d.The Applicant shall pay for the costs of the children’s flights to City B from Canberra;
e.The Respondent shall pay for the costs of the children’s flights from Canberra to City B; and
f.Each party shall provide the other with a copy of the booked flight tickets at least 14 days prior to the departure date of the flights.
13.That in the event that the children fail to attend their scheduled flight, the parent departing with the children shall be responsible for the cost of booking the next available flight for the children to spend time with the other parent pursuant to the Orders.
Evidence of the Applicant Mother
It was a feature of the Mother’s evidence that she said, more than once, that “commitment and solidarity” were hallmarks or cornerstones of her relationship with Mr C. To provide some reasonably firm and objective points of reference, I note the following definitions of these terms.
The defining characteristics of “commitment”, according to the long-standing, classic work, Lewis and Short’s A Latin Dictionary (First Edition 1879; current impression, 1987), “committo – committere” relevantly has the following meanings (among many others that are not currently apposite): “to place [some]thing for preservation [and] protection; to give and to entrust, to trust.”
The Shorter Oxford Dictionary (Fifth Edition, 2003), relevantly defines “commit/commitment” as including “to entrust or consign … for safe-keeping; pledge oneself; bind oneself to a course of action; dedicate oneself morally; the action of committing oneself or another to a course of action; involvement restricting freedom of action; an engagement, an obligation; an act of committing oneself.”
The Macquarie Dictionary (Seventh Edition, 2017) has definitions to similar effect, save perhaps to note that its definitions include “to bind by pledge or assurance” and “to enter into a long-term relationship with a sexual partner.”
Regarding the defining feature of “solidarity” (from the Latin “soliditas” – to make firm or solid; and from the French “solidarité”), the Shorter Oxford Dictionary defines it as “unity or accordance of feeling or action especially among individuals with common interest, sympathies or aspirations …”. The Macquarie Dictionary defines “solidarity” as including “solidary character or relation; community of interests, feelings, purposes.”
It will be recalled that at the outset of these reasons I quoted the Mother’s Counsel who said that the nature of the relationship between the Mother and Mr C could or should be considered, for the purposes of parenting Orders, only in the following terms: “It’s ultimately about what your Honour is going to think about the stability and the security of the relationship vis a vis the children.” In this regard, although these characteristics should be taken to be well-known, for current purposes I need only note that “stability” (according to the Macquarie Dictionary) includes the understanding of “firmness in position, continuance without change, permanence, steadfastness, as of character or purpose, [and] resistance to change.”
Finally, the Macquarie Dictionary defines “security” as including “freedom from danger, risk, safety; freedom from care, apprehension, or doubt; something that secures or makes safe.”
In the light, or against the background, of these definitions, the Mother’s oral evidence – summarised – was as follows.
The Mother confirmed that, in the course of the interview with the Family Consultant (Ms N), she advised her that she had been in a relationship with Mr C since approximately February or March 2017. She described him to the Family Consultant as “calm, kind and caring.” She also confirmed that she did not advise the Family Consultant that she was in “an open sexual relationship with Mr C and other men.”[25]
[25] T 29.
Then followed a series of questions relating to Ms D, a former partner/paramour of Mr C to whom I have already referred.
The Mother confirmed that, in her Affidavit in Reply, filed 5th June 2020, she said that there was nothing in Ms D’s Affidavit she did not know about. She said that this information about Ms D was conveyed to her by Mr C in a discussion on 23rd April 2020.
Because it came up a number of times during the trial, I need only note here that there was nothing in the Mother’s trial Affidavit about the nature and details of her relationship with Mr C. It seemed to be acknowledged later in the cross-examination that due recognition of the details, and the significance of the Mother’s and Mr C’s relationship only came to light once Ms D filed her Affidavit. Otherwise, as noted below, the Mother and Mr C determined that they would not disclose such details of their relationship to the Court (or to the Father).
In the discussion on 23rd April 2020 between the Mother and Mr C, he said words to the Mother to the effect that he was concerned about the mental health of Ms D should he break off their relationship.[26] The Mother confirmed that Mr C did not tell her how long, since the commencement of the three year or so relationship with Ms D, he had been concerned about her mental health.
[26] T 29.
The Mother confirmed that she and Mr C had known since 2017 that they were each “seeing other people.” It was in 2017 that Mr C had started seeing Ms D. Then there was the following exchange, which was repeated (in a number of different contexts but with similar results) many times during the Mother’s oral evidence. The matters canvassed here relate to the nature of the Mother’s relationship with Mr C in circumstances where he was concurrently in a long-term (3 year) relationship with Ms D, and where the Mother insisted that she and Mr C (a) trusted each other, (b) did not need (or wish) to know details of any other persons who were also in a relationship with each (or either) of them, and (c) did not disclose the nature or incidents/details of their “open relationship” to the Court or to the Father in their respective trial Affidavits until Ms D filed her Affidavit, which plainly forced their hands, so to speak (emphasis added):[27]
[27] T 30 – 31. Part of this extract was set out earlier in these reasons. It is repeated here for ease of reference.
… did he tell you why it had taken him three years to stop seeing her?‑‑‑It was not our nature that we knew details about each other or our other partners so it wasn’t ‑ ‑ ‑
Yes, but I suggest – sorry – sorry. Go ahead?‑‑‑So it wasn’t that we needed to know anything about the other partner.
That’s not what I asked but perhaps I didn’t say it – ask the question clearly. You find out on 23 April this year that he has been in a sexual relationship with Ms D since 2017; yes?‑‑‑Yes.
And he tells you on 23 April this year that he’s concerned about Ms D and her mental health, “…if I stop seeing her”; yes?‑‑‑Yes.
And given that he told you he had been seeing her for three years, did he tell you why it had taken three years for him to stop seeing her?‑‑‑No, we did not have that conversation.
And do you say during this conversation on 23 April 2020 he told you everything that ended up in Ms D’s affidavit?‑‑‑I would say the majority, yes. There’s not anything that I don’t know that has been submitted in the affidavit from the conversation we’ve had.
And what I want to suggest to you is this; is that when you filed your trial affidavit on 25 May 2020 you at that time knew he had been in a long-term part-time relationship with Ms D, didn’t you?‑‑‑I knew that he had been in a long-term – seeing other people ..... in a relationship, yes.
Well, according to you, by 23 April you knew everything that Ms D had put in her affidavit. But, of course, you didn’t have the affidavit then. So you say that on 23 April 2020, “I knew everything that Ms D put in her affidavit”, don’t you?
HIS HONOUR: Ms D.
MS HAUGHTON: Ms D, sorry. Ms D, she’s the actress, of course?‑‑‑ ..... so what I say is that the information that was provided by Ms D in the affidavit, I was aware of when Mr C and I had a conversation about it.
So when you filed your affidavit on 25 May 2020, you knew how much he had been spending with her, didn’t you?‑‑‑Yes.
And you knew that it had been happening since about February 2017, didn’t you?‑‑‑Yes.
And in your current – in your affidavit in reply you finally tell the court that, in fact, you weren’t in an exclusive relationship with Mr C, don’t you?‑‑‑Yes.
And you say in paragraph 61 that if you’re “…permitted to relocate to City B with the children the nature of our relationship will have to change to some degree as we will be living together full-time and sharing a home”. You put that in your affidavit. And that’s because you knew that that was relevant evidence the court needed to know in deciding whether to permit you to relocate to City B to be with Mr C. That’s true, isn’t it?‑‑‑It is evident that that is important in the court now, yes.
Yes. And you didn’t put that in your first affidavit, did you, because you were hoping to hide from the court that you and Mr C were in fact not in a committed relationship?‑‑‑No.
From observation during the proceedings, and equally from her professional record (e.g. the Mother has held health care positions for some time), the Mother is highly intelligent and quite an astute person. Her claim that she (and Mr C) only recognised “now” that the details of their open relationship and their multiple other partners is/are a relevant consideration was rather too coy. It borders on the implausible that she (and Mr C) did not appreciate that the details of the various relationships was not immediately relevant to the parenting proceedings. It becomes even less plausible in the light of the Mother’s evidence that she told her lawyers about her relationship with Mr C and she was not, in turn, advised of the need for all information to be disclosed. The issue here would be, of course, in what level of detail the Mother told her lawyers about that relationship. In short, I have serious doubts about the accuracy and veracity of the Mother’s evidence (and Mr C’s evidence likewise) regarding their apparent or supposed lack of appreciation of the importance or significance of their open relationship to the current proceeding. On their own evidence, the Mother and Mr C deliberately sought to conceal relevant details of their relationship. They plainly and clearly knew what they were doing.
In 2017, the Mother confirmed that she purchased a property in the Canberra suburb of Suburb K. There was (and is) no dispute that this suburb is on the other side of Canberra compared to where the Mother was previously living, and where she continued to live for the next two years or so. She confirmed that she moved into this property in July 2019. During the intervening period (2017 – 2019) the Suburb K property had been rented out.[28]
[28] T 32.
The Mother also confirmed that, although she had discussed obtaining a “bigger home” with Mr C and renting out her purchased property in Suburb K, when the Mother in fact moved into that property, Mr C did not move in with her, although he lived nearby.[29]
[29] T 32.
The “conversation” again turned to the Mother’s knowledge of Mr C’s relationship with Ms D. After some clarification, the Mother confirmed that, although she knew Mr C was seeing other women, until their conversation on 23rd April 2020, she did not know any of the details that Ms D disclosed in her detailed Affidavit, filed on 3rd June 2020. The ensuing discussion in Court is instructive, in that it includes (a) the Mother’s confirmation of knowledge of Mr C having a range of current sexual partners in City B, but no other details of them because she “did not need to know details”, and (b) the decision of the Mother and Mr C not to reveal to the Court the nature of their relationship (emphasis added):[30]
[30] T 32 – 33.
I’m just trying to clarify – so between 2017 and 23 April this year, is it your evidence that you knew he was seeing another woman on a weekly basis and having sex with her?‑‑‑Correct.
And did you know then that he had gone to Country O with this woman?‑‑‑Correct.
And is that because he told you?‑‑‑When we talked about – I knew at the time when he went to Country O and Country J in 2018 and ’19, from memory, that he was going with somebody. I didn’t need to know details.
And you also know that since he has been living in City B he has had sexual relationships with a number of women. That’s the case, isn’t it?‑‑‑Correct.
And that one of them is a public servant called Ms E, which is – seems to be the person he’s most with at the moment. He has told you – you knew about that all along?‑‑‑Correct.
And so what I want to suggest to you is that that’s not true; that, in fact, you didn’t know anything about Ms D or what he was doing with her. That’s, in fact, the case, isn’t it?‑‑‑No, that’s not correct.
And ‑ ‑ ‑?‑‑‑Ms D.
Pardon?‑‑‑Ms D, sorry.
Sorry, Ms D. And what I want to suggest to you is since Ms D has surfaced as a witness in these proceedings you have had to change your evidence to this court in order to still justify why you’re still with Mr C, aren’t you?‑‑‑I have openly discussed the relationship with my representation, yes. I have not changed evidence, no.
So are you – all right. So before you even filed your affidavit are you saying you told your legal representation about the nature of your relationship with Mr C?‑‑‑Which affidavit, sorry?
Your trial affidavit of May?‑‑‑No. Mr C and I had a conversation of whether to disclose that information and we made a choice that it – we didn’t see that it was relevant at that time.
HIS HONOUR: Why?
MS HAUGHTON: Well ‑ ‑ ‑?‑‑‑Sorry, I ‑ ‑ ‑
HIS HONOUR: Why – why would you consider that a relationship with Mr C, who you are proposing to live with permanently and to be in the same residence as the children, why would you think that that was not something that was relevant for these proceedings?‑‑‑I don’t know, your Honour. It was a discussion we had. We value our discretion in that space. It was a private and personal thing that we were able to share with each other and that was the unfortunate choice we made.
The Mother’s accent on “valuing their discretion”, in my view, was a convenient but completely inapt attempt at a disclaimer for her lack of candour about the nature of the relationship with Mr C. Respectfully, the Mother is no neophyte in relationships or otherwise. She (and Mr C) knew exactly what they were seeking to do in concealing the details of their open relationship. In my view, “discretion” had little to do with it, and everything to do with convenient subterfuge.
Subject to what is said later in these reasons, at every level, the Mother’s evidence of her discussion with Mr C, and their decision not to disclose to the Father and to the Court the true nature of their relationship, was astonishing. It showed an equally lamentable lack of insight as implied in my last quoted question to her noted above. She was planning on setting up a family residence in City B with Mr C and the children, not having lived with Mr C previously (other than his regular visits – extended and otherwise), but they formed some compact not to advise the Court of the nature and detail of their mutual open relationships. This is in circumstances where the Mother’s earlier sworn evidence was that she was in a committed relationship with Mr C but where, as she knew, both of them were seeing a number of other sexual partners. By definition, a “committed relationship” usually connotes a degree of exclusivity, stability and predictability, which was (and apparently remains) very much not the case here.
The Mother sought to justify withholding this rather important piece of the parenting puzzle (as did Mr C – noted later in these reasons) simply by saying that they “valued their discretion in that space.”[31] Deliberately, given the nature and flexibility of all the incidents that surround their various relationships, this “space” remained quite opaque in the Mother’s evidence, as it did in Mr C’s. In various places, I noted that “flexibility and fluidity” seemed to be hallmarks of the relationships of the Mother and Mr C, and others.[32]
[31] T 33. At T 34 there was further exploration with the Mother of she and Mr C deposing to the Court of their “committed relationship together” and whether this was intended to deceive the Court. The Mother denied this to be her intent.
[32] T 35.
In my view, there was also a certain level of delusion or denial in the Mother’s evidence. For example, she maintained that Mr C spent “the majority of time with us as a family in our relationship.”[33] Allowing a certain level – but only a limited amount – of hyperbole, the following proposition was put to the Mother, which she denied (emphasis added):[34]
Mr C, a more truthful evidence from him would have been, “When I’m not ha… ving sex with other women, when I’m not with Ms L, when I’m not with Ms D, when I’m not in Country O, when I’m not in Country J, I spend time with Ms Barton and the children”. That would have been a more truthful statement, wouldn’t it?‑‑‑No, I don’t believe so.
…
… the reason why he wouldn’t want the court to know about his relationship with all these other women is because that would detract from that evidence, wouldn’t it?‑‑‑No, we have our relationship as we have it and we’re committed to that relationship.
…
… where in paragraph 52 of Mr C’s affidavit – which is his trial affidavit filed on 25 May 2020 – where he says that he missed you, “I miss Ms Barton a lot and very hopeful that her application to relocate will succeed and we will be able to spend all of our time together soon”. You now know, don’t you, that, of course, he has been communicating with Ms D about all the other women he has been having sex with up there, don’t you?‑‑‑Yes.
[33] T 36.
[34] T 36.
Patently, in the light of the later-breaking evidence of Mr C’s multiple sexual relationships in City B, and presumably whatever number of similar relationships the Mother has, Mr C’s claim of wanting and looking forward to spending “all of our time together” must be viewed with a degree of caution. Subject to what is said later in these reasons regarding Mr C’s evidence, his time with the Mother (and the children), necessarily and incontrovertibly, will be shared with a range of others, as he has done for many years.
The Mother went on to describe some basic features of her relationship with Mr C in the following, broad terms:[35]
[35] T 37.
You are telling his Honour that you have known all along that he was having sex with women in City B, don’t you?‑‑‑Yes.
Right. So are you then grateful that he had these women to have sex with while he was missing you?‑‑‑Our relationship is being able to enjoy our own needs. Yes.
And what I want to suggest to you is the reason that the two of you have never lived together previously is because it would have cramped both your styles. That’s true, isn’t it?‑‑‑No, that’s not true.
That is, in fact – that must be the true reason, isn’t it, that you’ve chosen not to live together to date because he’s off having sex with women at his place, you’re having sex with men at your place, I take it. Is it at your place that you have it or is it somewhere else?‑‑‑No, it’s not usually at my place.
Right. So he’s the one that needed separate accommodation, didn’t he, to keep going with his sexual relationships. That’s true, isn’t it?‑‑‑He had sexual relationships in his home, yes.
That’s why you haven’t lived together before now, is it, because that would have meant it would have been harder for him to have sexual relationships with other women, wouldn’t it?‑‑‑No – no.
Would he bring them to your house then?‑‑‑No.
Did you have that discussion with him, about whether if you lived together he’s going to bring his women to have sex at your house?‑‑‑We have talked about that.
And what’s he going to do?‑‑‑It won’t be happening.
Well, are you sure about that?‑‑‑It won’t be happening in our home.
Okay. So it’s going to be happening somewhere else?‑‑‑If that’s how we choose to continue, yes.
The Mother confirmed, as she did on a number of occasions, that her relationship with Mr C was “solid”, which was due to “the commitment and solidarity we have together.” Then followed some further discussion that, in my view, showed the completely malleable approach to relationships that the Mother and Mr C have, which includes a significant degree of lack of candour between them. A significant aspect of this approach is a “need to know” basis regarding the provision of information (emphasis added):[36]
[36] T 38 – 39.
… nowhere in his affidavit does he say he’s thinking of buying a house with you in City B, does he?‑‑‑Yes, he does.
In his affidavit, does he?‑‑‑I believe so; that we had discussed renting for 12 months and in the event I was permitted to relocate, that we would buy the – a home together.
No, that’s in your affidavit. There’s nothing – I want to suggest there’s nothing in Mr C’s affidavit about him being prepared to buy a house with you. Do you accept that?‑‑‑Yes, I – I can’t recall. Yes.
And what I want to suggest is that you and Mr C have chosen not to live together before now because it suited your sexual relationships with other people. That suited you then; yes?‑‑‑No.
And you have no ability to know how you’re going to cope living with a man that is not capable of being monogamous, do you?‑‑‑Our relationship is solid and I am happy to proceed with that because that’s what a relationship, for me, would be wonderful.
…
You say that Mr C told you everything that was in the affidavit. So you now know that he’s telling Ms D that he would rather you got a place across town than live with him in City B. You know that, don’t you?‑‑‑If – yes.
Yes. And you would say, wouldn’t you, that that’s quite disrespectful of your relationship with him. Do you accept that?‑‑‑No.
And, of course, he had no reason to lie because she knew about you, didn’t she?‑‑‑She did.
Yes. And so he knew – so he had no reason to lie to Ms D about that. Do you accept that?‑‑‑I think his discretionary nature – yes, he – I accept that he had no reason to lie.
The completely discretionary nature of what Mr C tells the Mother, in my view, is quite at odds with the claim of “commitment and solidarity” which the Mother says is a feature of their relationship. Because of the completely “open” nature of the relationship, it must always be conditional. Likewise, the Mother’s earlier evidence of ensuring that Mr C did not have sex with other women at her residence must mean, as was put to her in cross examination, that the respective life-styles each of them has chosen requires them to keep a certain physical space or distance available to each of them (perhaps especially Mr C) to conduct liaisons and physical encounters elsewhere. Hence, thus far, each of them not actually living permanently together. Inexplicably, the Mother denies this reality, even after having accepted most aspects of it, including the regular physical encounters between Mr C and other women.[37]
[37] See, for example, T 37.
Although it was rather more of the same, there was next a briefer discussion with the Mother regarding conversations between Mr C and Ms D, which included him suggesting to her that she move to City B (presumably for a while) because the Mother would not be able to move up there for a period of time.[38] The Mother said that she was aware of this invitation or suggestion to Ms D to move to City B while the Mother, as it were, “cooled her heels” in Canberra. The Mother responded that she was pleased that Mr C would have some “nice company” (Ms D, and obviously the range of local women he was in relationships with as well) while he was in City B and she was not. “Commitment and solidarity”, the Mother’s words noted above, clearly have a different meaning in the circumstances of the Mother’s and Mr C’s relationship.
[38] See T 42.
There followed consideration with the Mother of what came to be referred to (or what can conveniently be referred to here) as “the City H fishing trip.” The main features of this somewhat notorious event (noted also earlier in these reasons) were as follows, although there were later discussions of it noted further below:[39]
[39] T 42 – 44.
In short compass, a few years ago Mr C was retrenched. He told the Mother that he needed some time to think. He told her that he was going fishing. In reality, he was going away for the weekend with Ms D. He staged some photographic “evidence” of his “fishing trip”. These confected photographs became Exhibits B and G. The Mother (and later, Mr C) confirmed that he had lied to her about this trip.
As noted earlier, among other exchanges, there was this (emphasis added):[40]
So you say he told you he was going to City H fishing and he was going to sleep in the car, but in fact he was going away for a weekend with Ms D. So you would accept that if he – he must have been lying to you about what he was doing; do you accept that?‑‑‑By Ms D?
He was with Ms D. He wasn’t sleeping in his car and fishing, he was in a ‑ ‑ ‑?‑‑‑Yes.
Having a sexual relationship with Ms D?‑‑‑That’s correct.
All right. So do you accept that he lied to you about what he was doing that weekend?‑‑‑Yes. It would seem that way, yes.
And if it were true that you were in an open relationship and he could have sex with whoever he wanted, he had no reason to lie to you, did he?‑‑‑I didn’t need to know details and we never talked about details of anything ‑ ‑ ‑
[40] T 43.
To this instruction, I note the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours said, at [60]:[173]
[173] McCall v Clark (2009) 41 Fam LR 483. See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
I draw attention also to the comments of the Full Court in Blanding, which involved a parent seeking to relocate, who was permitted to do so.[174]
[174] Blanding v Blanding (2017) 55 Fam LR 218.
At [166], the Court said:
… the apportionment of weight or importance to evidence is a matter for the exercise of the trial judge’s discretion. As we have already said, the bar to appellate intervention in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
Consideration & disposition
The first matter to address, which has already been mentioned more than once, is the planned, and partially executed, deception of the Court and the Father (and perhaps to some degree of Ms N) by the Mother and Mr C.
Each of them acknowledged that they had determined to conceal the nature and details of their combined and individual “open relationships”. They said that they had informed their lawyers of their relationship. The degree of their disclosure was never established. It is inconceivable that their experienced lawyers would have participated in the planned deception of the Court and the Father. The Court may infer that this astonishingly dangerous plan was conceived because they understood (seemingly at least to some degree) and feared that its details, if revealed and scrutinised, may have had an adverse impact upon the Court’s decision.
It should be trite to observe that parties and witnesses are intended, and expected, to tell the whole truth in their evidence to the Court, both in Affidavits and orally. Evidence is given either on oath or by affirmation. By either form, it is a solemn declaration that what is told to the Court (and the other party) is true and correct in every respect. Moreover, as part of their duty to the Court, legal practitioners are required to ensure that documents filed with the Court are true and correct based on the instructions they receive.
All of this is to say, and obviously to reinforce, the extreme gravity of the Mother’s and Mr C’s planned, and partially executed, deception of the Court about the true and complete nature of their relationship(s) and its extremely important significance to the Court making Orders that are in the best interests of the children here, X, Y and Z.
Whether as a matter solely of evidence, or a consideration under s.60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), or both, intentionally to deceive a Court is an extremely grave matter. Lawyers who act in this way can be either reprimanded or barred from practice. Among other things, the deception here (as in almost any case) colours if not taints all the other evidence. It causes the Court to wonder, for example, what else might be hidden and kept from the Court’s gaze. It also causes the Court to wonder what weight can be placed on the remaining evidence more generally.
Because of the planned, and partially executed, deception, I consider the Mother’s evidence to be significantly compromised. It necessarily placed significant doubt about how far she was prepared to go to ensure that her plans regarding Mr C, and the important flow-on effects for the children, were achieved. Alarmingly, she was at least prepared to lie to, and to deceive, the Court and the Father. It is difficult to think of any higher risk, and utterly flawed, conduct by a party or a witness. In a worst case scenario – which is not contemplated here – such conduct could amount, or lead, to a contempt of court Application.
Such concerns became even more acute in the light of Mr C’s admitted lies to, and deceptions of, the Mother. Somewhat reluctantly, the Mother agreed that she had been lied to by Mr C. Mr C’s evidence clearly showed that he is prepared to say almost anything – including lying to the Mother – to maintain his multiple, ongoing relationships. In these respects, I consider his evidence to be almost totally unreliable.
What is no less troubling is that, but for the evidence of Ms D coming to light (recalling that Ms D offered her evidence to the Father; he did not know about her until very recent times, and so any criticism of him in this regard is completely mis-placed), the planned deception of the Court and the Father by the Mother and Mr C would have been complete. The trial would have concluded, and the Court would have made a decision about the parenting arrangements for the children upon the false and misleading evidence of the Mother and Mr C. To state the obvious: this would have been an appalling state of affairs.
Unless otherwise stated, I should be taken now to follow, seriatim, the considerations in s,60CC(3) of the Act.
The views of the children were set out in the first Report of Ms N. Whatever other qualifications were sought to be put on those views, either by the parties and or by Ms N, viewed fairly and in context, the children were confident enough to state clearly their wish not to move to City B. Whether they discussed this among themselves, and/or with their Father, and/or in the light of the Mother showing them photographs of a lovely house with a pool in City B, they still felt comfortable enough to tell Ms N of their views not to move.
One or more of them also made it plain that they would very much miss their friends and relatives in Canberra. This is in circumstances where it was unclear if they knew at the time that (a) the Mother would likely be working in City B (that was certainly her original intention), and (b) thereby, Mr C would likely be looking after them at times, subject to any other engagements he might have. It hopefully remains the case that they do not know or, learn about, Mr C’s activities with women other than their Mother.
Given their younger ages, the views of the children are not determinative. But some weight, especially the views of the older boys, should properly be taken of them. In doing so, the Court should also have regard to the degree of sensitivity and concern, among other things, manifested by X, which was reported by both parents. His levels of anxiety are, of course, of proper concern. They may well grow given the proposed move because of, among other things, not being able to go to high school at G School with his friends.
On all the evidence, the children “love and adore” both parents. They also have, on more limited evidence, a good and close relationship with their extended families on both sides. The fact that the Mother proposes, if she is not permitted to move to City B, that the current five nights per fortnight for the children to live with the Father remain in place, indicates the relative comfort and reliability of the children’s lives with the Father. It also undercuts or undermines any contentions or complaints by the Mother (or anyone else, including Ms N) about the children’s care by the Father.
As earlier noted, the children did not refer to Mr C at all in the interviews with Ms N. In my view, this was telling. On that albeit limited evidence, he was not then a prominent figure in their lives. Having not lived with him since his move to City B more than one year ago, presumably he is likely to continue to be a person of significantly less focus or interest to them, other than, at best, tangentially some sort of presence in the life of their Mother. I do not, and cannot accept, as suggested by Ms N, that Mr C was an equivalent presence or figure as a parent. Respectfully, such a contention was not open on the evidence and in fact contradicted by it on many levels. It was a remarkable assertion.
The Mother contended that the children could maintain a good and close relationship with the Father via electronic and similar means if they move to City B. If this be true, then it must be the case that they can do likewise with Mr C if they stay in Canberra in closer proximity to their parents and he remains in City B, as he indicated he would. It will be recalled that his evidence was, summarised, that he would not forego his employment for the relationship with the Mother, if she remained in Canberra. It might be suggested, or a conclusion could be drawn, from Mr C’s decision to remain in City B, that his commitment to the Mother is necessarily qualified by his employment in that city.
There were competing claims by the parents regarding communication with the children, among other things, when they were with the other parent. In my view, given (a) the now long-standing arrangement between the parents for the children to spend five nights per fortnight with the Father, and there being little other than historical complaints about one thing or another (i.e. during the relationships), (b) the children apparently otherwise doing reasonably well at school, and (c) no involvement with care and protection authorities, the Court may reasonably infer that, to the degree that each can, both parents have undertaken their parenting tasks diligently. These comments apply to both s.60CC(3)(c) and (ca). In this regard, the Court should also properly take note of the conclusion between the parties, some time ago, of a binding child support agreement.
In her first Report, Ms N referred to the common-sense need for the children to have stability in their lives, doubtless regarding all parenting (and schooling) arrangements. A move to far north Queensland will very likely have a very significant impact upon the children, for the purposes of s.60CC(3)(d). Many of the obvious changes have been noted – school, ready availability to family (on both sides) and friends. Given the lack of family in that part of the world, the issue of support and potential feelings of isolation of the children, received comparatively little attention. All is so dependent upon the relationship between the Mother and Mr C continuing, and the Mother in particular being able to shield the children from the extra-curricular activities from their open relationship(s), but perhaps primarily of Mr C (noting that he is, apparently, involved with five or so ladies in City B at the time of the last assessment). What would happen to the children and their relationship with the Mother, and no less so with Mr C, should they find out about the less than exclusive relationship the couple have with each other, is highly troubling and almost does not bear thinking about. To say that it is likely that the children’s world would be turned upside down is likely to be an understatement.
Further, it might be the case that, if the children move to City B, there will be a growing discontent either towards the Mother, and perhaps most especially, towards Mr C, for taking them away from their Father, first and foremost, and also away from their wider network of family and friends.
The issue of practicality and expense in any move to City B is obviously a major consideration (s.60CC(3)(e)). The Court can readily take notice of the immense geographical distance between City B and Canberra. The cost of airfares was canvassed in particular with the Father, whose evidence of the cost of airfares per trip being approximately $1400.00 was not really challenged. Such costs would, in turn, impact child support payments, which were also discussed in the evidence, noted above.
The Mother’s evidence in relation to such matters was less than precise. Indeed, her comments about what Mr C would or might “contribute” to the household should she and he and the children ultimately live full-time together (for the first time), was very general. Indeed, as noted in the course of her evidence, the Mother said (in effect) that inquiries in this regard should be directed to Mr C. It was less than helpful, or comforting that this couple had not thought through (or disclosed to the Court) day-to-day details regarding the running of the proposed new household.
In addition to what has already been said in relation to the considerations under sub-paragraphs (c) and (ca), which should also be taken to apply to sub-paragraph (f), primarily because of the long-standing arrangements for the children that have been in place since separation in 2016, and which the Mother proposes should continue if she remains in Canberra, it is difficult to see what else the Court can or should consider here. Alleged “poor insight” of the Father, as proposed by Ms N, even if it were true, still has not forced the Mother to propose anything less than the children spending five nights per fortnight with him. Moreover, there was and remains no challenge that the children “love and adore” both parents, other than some inference from Ms N, which I do not accept. I note too that Ms N recommended that, wherever the Mother lives, she should undertake some counselling to assist her. As an observation only, I would have thought that (a) both parents should now (and should have done so long before this) undertake post-separation parenting courses (I will so Order), and (b) the Mother should have undertaken some separate counselling to assist her.
It remains an unexplained anomaly in the Mother’s evidence that, on the one hand, she complained to Ms N of her fears and concerns regarding the Father, but on the other hand, noting that she is qualified highly, and long-experienced, in health care, she (a) has undertaken no recent therapeutic assistance to deal with such fears and concerns (historical or otherwise), and (b) is able, on her own evidence, to engage readily and apparently without any difficulty in multiple, other relationships, supported as she is in its unique and qualified way, by Mr C.
Given the presentation of the children to Ms N, and accepting the anxiety that naturally attends any litigation, especially one that involves a possible relocation to a distant location, the children, on all other reports, are doing well and love their parents. Again, this indicates that the parents, for all their faults and failings, and the ongoing contest between them especially regarding communication, have been able to support and provide for the children in all relevant respects.
All the observations and comments made thus far apply equally to the considerations under s.60CC(3)(g) and (i). I would only note here that, as recorded by Ms N, X presented as a somewhat “sad and confused” young man. It is likely, without making any finding, that the possible disruption to his stable life in the ACT/Suburb U region by the proposed move to City B, and thereby further away from his Father, wider family and friends, has led (or is likely at least to have added) to this sadness and confusion.
The issue of family violence in this matter was both troubling and sorely vexed. There is no question that the Mother obtained two Apprehended Domestic Violence Orders against the Father. The first was around the time of separation in April 2016; the second was, in 2018, was an extension of the first Order. On this latter occasion the Mother sought an extension of the Order for two years; it was granted for only six months. It is no defence or mitigation that, comparatively speaking, the domestic violence was at the lower end of the scale. It related among other things, on the Mother’s account, to coercive control (including of finances) during the relationship. She averred that she remains in fear of the Father and quite anxious at times. On the Father’s account, not only did he apologise to the Mother for raising his voice (and other things) but he also felt “set up” by the Mother. He sought counselling to help him deal with (or preferably get over) the impact of the Order made against him in 2016.
There is significant conjecture over the brief engagement between the parties in early 2020 when the Mother visited the Father to advise him of her plans to relocate. From the Father’s side, it was positive and friendly, a nice change he said; on the Mother’s side, it was not friendly or pleasing, and quite the opposite.
All this said, the children confirmed that they saw and experienced no family violence when the family was intact. And there remains – already noted multiple times – the reality that the Mother proposed, and the Father agreed, shortly after separation to a 5/9 arrangement for the parenting of the children. She proposes that this continue, absent a move to City B.
In my view, there is little more that I can say, and certainly little more that I can determine about such matters, other than what I have laid out here. It is, ultimately a question of degree. There were some untoward and improper engagements between the parents, of this there can be little doubt. In the intervening years, especially without the Mother taking therapeutic steps other than some initial assistance sought for a short time, and the other matters already referred to, it becomes really quite problematic how much further the Court can examine such matters in the circumstances here. In my view, Ms N’s evidence did little to assist on these and other matters, for reasons already given.
What the Court may reasonably infer is that, notwithstanding any [relatively limited] incidents of family violence, in the years since separation the parents have still managed to work relatively co-operatively in their, albeit strained, co-parenting relationship. As already noted multiple times, the children are doing well and love both parents deeply. It is these last features regarding the children, in my view, that are most telling. Moreover, whatever concerns, difficulties and or anxieties the Mother had, and may still have, they have not (a) disabled her in her ability to co-parent and look after the children, (b) prevented or inhibited her to continue in her successful health care career, and (c) prevented her from pursuing her multiple other relationships, including with Mr C. Moreover, it is worth noting that the Mother’s allegations against the Father were not detailed in her original Affidavit when proceedings commenced, but only emerged later in the litigation.
Finally, given my views about the potentially unstable and not infrequently volatile bases of the relationship of the Mother and Mr C (the volatility coming, from time to time, unsurprisingly, from a number of past lovers but also from the Mother upon learning of some of their details), in my view, it is more likely than not that there is a greater risk of further litigation if the Mother and children move to City B than if they remain in and around the national capital.
The Mother did not call any witnesses – from family or professionals (e.g. Ms R, a recent counsellor referred to by the Mother) – to support her claims against the Father. This was at least curious, if not unfortunate, and may entitle the Court (in accordance with authority) to find or infer that such witnesses would not have assisted the Mother’s case.[175] In the circumstances, in the absence of those witnesses, and in the absence of any explanation for their absence, the Court draws the relevant inference.
[175] See Jones v Dunkel (1959) 101 CLR 298.
Otherwise, and in addition to what I have written, I prefer and accept the Father’s evidence and submissions. This evidence includes that, absent any formal objection, and the extremely limited cross examination of her, the Affidavit of Ms D regarding the graphic detail of her relationship with Mr C, which included his comments about the fragility of the Mother, were not relevantly challenged. This is also in circumstances where the Mother said that there was nothing in Ms D’s Affidavit that she did not know about. Putting to one side how remarkably sanguine the Mother claimed to be about this information, given the detail in that Affidavit, I suggest that the Mother could not, and would not, have known every feature in it as she suggested. Moreover, Mr C confirmed to Ms N that he did not deny anything in Ms D’s Affidavit.
Conclusion
In addition to the evidence outlined and discussed at length, which in my view, heavily undermines the Mother’s case to relocate to City B, and the considerations prescribed under s.60CC(3) of the Act likewise, two long-standing statements from the High Court in U v U are directly relevant to, if not determinative of, this matter. In the joint judgment of Gummow and Callinan JJ (with which Gleeson CJ concurred), at [89], their Honours stated:[176]
… whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.
[176] U v U (2002) 211 CLR 238.
At the very end of their Honours’ judgment, at [92], they said:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
In my view, the overwhelming weight of the evidence (a) does not support the Mother moving with the children to City B, and (b) the best interests of the children require them to remain living in the ACT/Suburb U region, which will ensure that they are more proximately able to maintain a good and close relationship with both parents. The best interests of the children must here take precedence over the Mother’s desire to move to City B to be with Mr C.
In my view, the children need both of their parents to be in relatively close proximity to each other. They do not need them to be, almost if not effectively, at opposite ends of the country. Accepting their younger ages, the unqualified views of the children opposing the relocation are important. So too is the fact that they have spent very regular and significant time with the Father – 5 nights per fortnight – since separation of the parties in 2016.
Should it need to be stated again, I have the most serious concerns about the level of support that would be available to the Mother should she and the children move to City B. She would have only Mr C. On his evidence alone, I have no confidence at all of his capacity to be available, without distraction, to assist and support the Mother in every (and any) relevant respect. The lack of support for the Mother, and in turn the children, in City B, other than Mr C, in my view, makes the prospect of a move to far north Queensland a highly fraught and problematic exercise.
Regrettably, I also need to repeat that because of (a) Mr C’s history of lies and deception of the Mother in recent years, and (b) the Mother’s and Mr C’s calculated plan to deceive the Court (and the Father) by not explaining the features of their mutually open relationships, the Court could have no confidence that any or all of the following information, among other things, would be provided if the Mother moved to City B with the children:
(a) the Father (or ultimately the Court at some later time) would be fully apprised of how the relationship between the Mother and Mr C was going, which must include any relevant instance of a falling out or significant contest where the Mother has become seriously upset upon learning of certain aspects of one of Mr C’s other relationships, as she did on one occasion in the past as recorded by Ms D that included Mr C stating that the Mother was “fragile”;
(b) there was no consideration of how long the Mother’s apparent indifference or insouciance to Mr C continuing with a range of other or secondary relationships, including currently in City B, might or can continue (and at what psychological cost). Nor was there consideration, and certainly not at any expert level, of whether Mr C’s past lies to, and deception of, the Mother have taken any psychological toll on her, or is likely to do so in the future;
(c) if any former lovers of the Father have turned up at the children’s residence to confront him, as happened in the past with Ms L, and virtually with Ms D, especially if this confrontation occurred in front of one or more of the children;
(d) what contingency plan the Mother has in place if one or more of the children find out about Mr C’s extra relationships, and they thereby consider him to be “cheating” on their Mother; and
(e) given the long history of flexible relationships involving Mr C, notwithstanding his (and the Mother’s) profession of “commitment” as each of them understands and practices it, should that relationship fail, the Mother and the children would effectively be marooned in far north Queensland.
However unlikely, but especially in these strange, pandemic-riddled times, there was no consideration of what happens – financially and otherwise – if the Mother cannot, for whatever reason and for however long, secure employment in City B.
For the reasons given, it would not be in the children’s best interests to move with their Mother to City B. Therefore, that Application must be refused and dismissed.
Subject to any other Orders agreed in writing by the parties, the current five nights per fortnight arrangement for the children to live with the Father shall continue, and the parents shall continue to have equal shared parental responsibility. Such Orders provide and keep the current stability and certainty for the children recommended by Ms N. They are in the children’s best interests. Such Orders, as they have done now for more than five years, readily satisfy the requirements under s.65DAA.
Within 14 days, the parties are to provide to the Court by email a Minute of the agreed Orders confirmed here, including all others that provide for regular telephone time for the non-resident parent, changeovers, and the like, birthdays and special occasions, as well as arrangements for X to be enrolled in high school in the ACT region.
I certify that the preceding three hundred and thirty-three (333) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 3 August 2021
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
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