BATEMAN & BATEMAN
[2012] FMCAfam 1374
•17 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BATEMAN & BATEMAN | [2012] FMCAfam 1374 |
| FAMILY LAW – Parenting – relocation – high conflict – both parents denigrating the other parent to the children –parents unable to communicate about the children – parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 MRR & GR (2010) HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424 U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112 KB & TC, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 |
| Applicant: | MS BATEMAN |
| Respondent: | MR BATEMAN |
| File number: | PAC 5079 of 2011 |
| Judgment of: | Halligan FM |
| Hearing dates: | 12, 13, 14 November 2012 |
| Date of last submission: | 14 November 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 17 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Freidlander |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Dom Velcic & Co Pty Ltd Solicitors & Barristers |
ORDERS
All prior parenting orders in relation to the children [X] born [in] 2006 and [Y] born [in] 2007 are discharged.
The mother shall have sole parental responsibility for the children, provided that the mother shall promptly advise the father in writing (including by SMS message or email) of any decision she makes in the exercise of parental responsibility under this order.
The children shall live with the mother.
The mother is restrained from moving the children’s current place residence more than 50 kilometres without first providing the father with 28 days’ written notice of her intention to do so and of the place of the proposed new residence.
The children shall spend time with the father during all Queensland school holidays as follows-
(a)For half of the school holidays other than the Christmas school holidays, commencing at 2.00 pm on the first Sunday of the holidays;
(b)For one half of the Queensland Christmas school holidays until the child [Y]’s commences school, and thereafter for four weeks of the Queensland Christmas school holidays, commencing at 2.00 pm on Christmas Eve in 2012 and each alternate year thereafter and otherwise commencing at 2.00 pm on Boxing Day.
For the purposes of the preceding order-
(a)The father shall collect the children at the commencement of his time at Emerald airport, and shall be responsible for all costs of collecting the children and returning with them to New South Wales;
(b)The mother shall collect the children at 2.00 pm on the last day of the father's time at Sydney airport at the check-in counter for the airline on which the children are booked for the return journey, and shall be responsible for all costs of collecting the children and returning with them to Queensland; and
(c)The mother shall notify the father in writing (including by SMS message or email) not less than 48 hours before the end of his time with the children of the airline on which the children are booked to return with her.
The mother shall not engage the children in any extra curricular activity that occurs when the children are due to spend time with the father without the prior consent of the father in writing (including by SMS message or email).
The father shall have audiovisual communication with the children by Skype each Tuesday and Thursday the children are not spending time with him between 6.00 pm and 7.00 pm Queensland time, and for the purpose of this order-
(a)The father shall initiate the call.
(b)The mother shall ensure she has computer equipment and an internet connection in working order to facilitate audiovisual communication between the children and the father and that the equipment is turned on ready to receive the father's call at all relevant times.
(c)Subject to facilitating the acceptance of the father's call and ensuring the audiovisual connection is functioning properly, the mother shall ensure the children are afforded privacy for their audiovisual communication with the father.
Both parties shall keep the other informed of their address and phone numbers at all times.
The mother shall promptly advise the father of:
(a)The name, address and phone number of any school, pre-school or day care centre attended by either child, and shall authorise the school, pre-school or child care centre to discuss the child’s progress with the father;
(b)Any medical condition suffered by either child, including any treatment or therapy recommended for that condition;
(c)The name, address and phone number of any health care facility and any medical professional either child attends (including but not limited to any medical practitioner, psychologist, counsellor, therapist, dentist or orthodontist), any diagnosis or prognosis made, and any treatment or therapy recommended, by the health care facility or medical professional, and the mother shall authorise each such health care facility and medical professional to discuss the child’s condition, diagnosis, prognosis, treatment and therapy with the father;
(d)In particular, all treatment recommended in relation to the child [Y]’s speech therapy, including any activities or exercises to be done at home, and the father shall ensure any home treatment recommended as part of the child’s speech therapy is complied with while the child is in his care.
The father shall promptly notify the mother of any serious illness or injury suffered by either child while in his care, and shall keep her informed of the particulars of any health care facility or medical professional the child attends while in his care.
The mother shall do all things necessary to authorise the school, pre-school or child care centre that either child may attend from time to time, to provide to the father at his request copies of all school reports and notices that the mother would ordinarily receive.
Both parties are restrained from:
(a)physically disciplining either child and from causing or permitting any other person to do so;
(b)denigrating or criticising the other parent or members of the other parent’s household or family to or in the presence or hearing of either child, and from allowing any other person to do so.
The mother is restrained from causing, permitting or allowing either child to be known or referred to by any name other than his birth name, and shall notify the child [X]’s school in writing as soon as possible after receipt of a copy of these orders that the child is to be known and referred to for all purposes and at all times as [X].
Both parents shall use their best endeavours to:
(a)ensure that each of the children address their mother and father as “Mum” or “Dad” respectively or a similar term;
(b)ensure that each of the children do not address any person other than their mother and father as “Mum” or “Dad” or any similar term; and
(c)ensure no other person encourages or permits the children to address any person other than their mother or father as “Mum” or “Dad” or any similar term,
provided that this order shall not prevent a step parent being addressed as “Mum (given name)” or “Dad (given name)”.
IT IS NOTED that publication of this judgment under the pseudonym Bateman & Bateman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5079 of 2011
| MS BATEMAN |
Applicant
And
| MR BATEMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested proceedings under the Family Law Act 1975 concerning the parenting arrangements for six year old [X] and five year old [Y].
The mother seeks sole parental responsibility for the children, that the children continue to live with her in central Queensland, and that the children spend time with the father for twelve days in the autumn school holidays and for nine days in the spring school holidays in even years, for twelve days in the winter school holidays and nine days in the spring school holidays in odd years, and for fourteen days in the Christmas school holidays each year, to include Christmas Eve, Christmas Day and New Year in odd years and commencing on
2 January in Christmas school holidays commencing in even years. The mother also proposes that the children spend time with the father in her locality in Queensland on the weekends two weeks before and two weeks after the school holidays each year during which the children do not spend time with the father. If the court orders that the children return to live in the Sydney area, the mother proposes that the children live with her and spend time with the father for one weekend a month, for half of the autumn, winter and spring school holidays, and for two weeks in the Christmas school holidays.
The father seeks orders that the mother and the children return to live within fifteen kilometres of the [omitted] Post Office, that the parents have equal shared parental responsibility for the children, and that the children live with the parents on an equal time basis, week about during school terms and half of school holidays with each parent. If the children are ordered to be returned to live within fifteen kilometres of the [omitted] Post Office but the mother does not also return, the father proposes that the children live with him and the mother spend time with them for half of all school holidays. If the children remain living with the mother in central Queensland, the father seeks to spend time with the children for half of the autumn, winter and spring school holidays and for four weeks in the Christmas school holidays.
Background
The mother is aged 28 (born [in] 1984) and the father is aged 32 (born [in] 1980). The parties commenced cohabitation in 2006 around the time of [X]’s birth, and separated in July 2009. [X] was born [in] 2006 and [Y] was born [in] 2007.
The parents never married. They have the same last name by coincidence.
The mother has repartnered. She lives with Mr B, who is aged 34 (born [in] 1978). They commenced a relationship in late 2009 and commenced to cohabit soon after. They have one child, [Z], born [in] 2011, and are expecting their second child in 2013. They live in central Queensland. Mr B works as an [omitted] The mother is fully occupied caring for her children and does not work outside the home
The father has remarried. His wife is Ms M who is aged 22 (born [in] 1990). They commenced a relationship in early 2010, and commenced to cohabit on marriage [in] 2012. Ms M is expecting their first child in [omitted] 2013. The father works as a [occupation omitted] and Ms M works as a [occupation omitted].
Consent interim parenting orders were made on 14 December 2011, on a without prejudice basis and pending the determination of the parties’ competing interim applications. Those orders provided for the children to live with the father for three weeks from 20 December 2011 to
10 January 2012, changeovers to occur at Sydney Airport, and every fourth week of the Queensland school terms from midday Friday to midday Monday, changeovers to be at Sydney airport, and for nine days in the Term 1 2012 school holidays from 30 March to
8 April 2012. These orders provided that otherwise the children live with the mother. The parties were ordered to share the cost of the children’s air travel, the mother to purchase and pre-pay for the children’s journey to Sydney and the father to purchase and pre-pay for the children’s journey from Sydney.
The parties’ competing interim applications were heard on
10 January 2012, and interim orders were then made that the parents have equal shared parental responsibility, that the children live with the mother and that she be permitted to relocate the children's residence to a specific town in central Queensland, and that the children spend time with the father during Queensland school terms every fourth weekend in Sydney from midday Friday to midday Sunday, and during school holidays in Sydney for one week in the autumn, winter and spring holidays, and for the second half of the Christmas school holidays in 2012/2013. Changeovers for the father's time were to occur at Sydney Airport with the mother to accompany the children on all flights at her cost, but the parties to each bear half the cost of the children’s flights. The interim orders also provided for electronic communication between the father and the children each Monday and Friday between 6.30 pm and 7.00 pm, via Skype if possible.
The father has not spent any of the monthly time with the children provided for in the interim orders. He said he could not afford his share of the costs of the children’s air travel. There have been chronic problems with the Skype communication provided for in the interim orders, with the father able to speak to the children but not able to see them, because the mother's webcam broke and she did not repair or replace it, contending she could not afford to. Her partner bought a new webcam on the final day of the hearing.
Credit of witnesses
The witnesses in the mother's case, apart from the mother herself, were her partner, her father and her grandmother. Neither her father nor her grandmother was required for cross-examination and I accept their evidence.
The only witness other than the father called in his case was his wife. She was not required for cross-examination and I accept her evidence.
No credit issues arose in relation to the evidence of the Family Consultant who prepared the Family Report. It was not shown that any factual basis relied on by her in expressing her opinions was incorrect, nor that her opinions were unsound or unreliable in any other way. I accept her evidence.
I have concerns about the credit of the mother. For example, she denied telling the older child not to talk about his father to her as she was sick and tired of hearing about him, which [X] reported to the Family Consultant. In cross-examination Mr B said the mother had said this to the children, on more than one occasion. I am satisfied the mother lied on oath in denying she said this.
I also have concerns about the credit of the father. For example, when being cross-examined about his interest, or lack of it, in the children’s lives and progress, the father said he had never been told what school [X] attended after the mother relocated the children to Queensland, and did not know what school [X] attended. When challenged, he accurately identified the school [X] attended, and agreed he had read the mother's affidavits filed in the proceedings as long ago as December 2011 stating the school he attended. The child’s school is also clearly identified in the Family Report.
The father admitted telling the Family Consultant that the reduction in his time with the children from weekly to fortnightly was at his instigation, but said this was wrong. He gave varying accounts as to other reasons for the reduction that were not credible. He admitted that his affidavit evidence that the mother told him he could only have the children on a fortnightly basis was wrong. I am satisfied that what he told the Family Consultant was correct.
The father admitted that his affidavit evidence that he had not had any time with the children at Christmas 2009 was wrong, admitting he spent time with the children on Christmas Day in 2009. In cross-examination he maintained his assertion that he did not spend time with the children on Christmas Day 2010 despite the unchallenged evidence of the maternal grandfather to the contrary. I accept the maternal grandfather’s evidence and am satisfied the father's evidence on this issue was not correct. In his evidence in chief he asserted a conversation with the maternal grandfather in which the maternal grandfather allegedly made critical remarks about the mother's move to Queensland. The maternal grandfather denied this conversation ever occurred, he was not cross-examined, and when the father was challenged about his evidence, professed not to now remember what was said in the conversation. I am satisfied the father's evidence in chief about this conversation was incorrect.
There were other examples of both parents being prepared to be dishonest in their evidence. I am satisfied both parents were prepared to, and did in fact, lie on their oath if they thought a truthful answer would damage their case and an untruthful answer might better advance their case. I therefore approach the evidence of both parties with some caution.
I was satisfied Mr B was a truthful witness.
The evidence
The father asserted that before separation, when he returned home from work, he “completely took over the care of the children”. However, the children’s maternal grandfather swore that he visited the parties’ home at least once a week and more often after the children were born. He said that he did not observe the father take over the care of the children on returning from work. He observed the father cook some meals but also observed the father spend “quite some time” on his own relaxing after his day’s work. As mentioned, the maternal grandfather was not cross-examined, and I accept his evidence. I find that before separation, as the mother said, the father assisted her from time to time in the care of the children, but she was their primary carer at all times, both before and after separation. I find the father's assertion of completely taking over the care of the children after work was untrue.
On separation, the children lived with the mother and spent time with the father, initially each weekend. After only a few weekends according to the mother, or in January 2010 according to the father, this reduced to fortnightly, from Friday to Sunday. The mother's grandmother gave evidence that the father's time with the children every weekend gradually reduced over several months.
The mother's grandmother was not cross-examined, and her evidence is inconsistent with the evidence of both the mother and the father. Her evidence suggests there was not a clear change from weekly to fortnightly time with the children. I prefer her evidence to that of both parents.
The mother said the father's time reduced to fortnightly because the father said to her it was unfair that he have the children every weekend, and he wanted each second weekend to pursue his own interests. The father said it was because he wanted to be able to work on some Saturdays and the mother wanted to have the children on some weekends. I have already referred to the father's statement to the Family Consultant as to the reason for the reduction in the frequency of his time, consistent with the mother's evidence, and that I considered his evidence about this unreliable to the extent of adversely affecting his credit. I am satisfied the frequency of the father's time reduced because he wanted some weekends to himself, which is also consistent with the unchallenged evidence of the mother's grandmother.
Subsequently, the mother reduced the father's time to one weekend a month. The mother said that this was in early 2010, the father said it was in December 2010. The mother's grandmother said in an affidavit sworn on 8 December 2011 that the father's time had been monthly for “the last 12 months, or perhaps even 18 months”. I find that the father's time reduced to monthly in the second half of 2010.
The mother said the reason why she reduced the father's time to monthly was that the children, especially [X], were becoming upset at derogatory things they told her the father was saying to them about the mother and her partner. She said she spoke to the father about this, but it continued and so she sought to reduce the father's time to one weekend a month. She said the father was unhappy about the reduction but acquiesced in it.
The father denied making derogatory comments about the mother or her partner to the children, and said the mother imposed the reduction of his time on him.
There is evidence both parents have spoken negatively about the other to the children. The unchallenged evidence of the mother's grandmother is that [X] told her the father had told him that if they went to Queensland he would drown because there are floods there. The mother gave evidence of a similar conversation with [X], and many more besides, involving serious and systemic denigration of the mother and Mr B by the father to the children. The father denied making such statement to the children, but I am satisfied that he did.
However, as already mentioned, Mr B said the mother had told [X] she did not want him talking to her about the father because she was sick and tired of hearing about him. Further, [X] calls Mr B “Dad” and the father “[first name omitted]”. Both the mother and Mr B said this was at [X]’s request. Mr B said he agreed to [X] doing so. The mother said she consistently encouraged [X] to refer to the father as “Dad”, but neither she nor Mr B sought to discourage [X] from calling Mr B “Dad”. The mother and Mr B also at best have acquiesced in, and at worst have encouraged and facilitated, [X] being known at school by the last name of [B], despite the child being enrolled under the name of Bateman. I will refer to this further later in these reasons.
I am satisfied on the evidence that the children have been exposed to the parental conflict and to the highly critical and derogatory attitudes of both parties and their current partners towards each other. This can be highly toxic to the children, as highlighted by the Family Consultant in her Family Report.
I accept the mother's evidence that in 2010, the children were showing signs of distress on returning to her after spending time with the father due to being exposed to his denigration of her and Mr B, but I am satisfied that with the mother, the children were exposed to her denigration of the father.
The father saw the children once a month from sometime in the second half of 2010 until the mother moved with the children to Queensland on 14 November 2011.
The mother enrolled [X] in pre-school two days a week at the beginning of 2011. She did not consult the father before doing so.
Both parties lived in the western suburbs of Sydney. The father worked as a [omitted]. Mr B worked as a full time casual, earning about $45,000 per annum before tax. His cousin works as a [omitted] in central Queensland, and in 2011 told Mr B about an employment opportunity to work as an [omitted]. The cousin and his family live in Sydney and he worked on a fly in, fly out basis, and Mr B was told he could do the same.
Mr B successfully applied for work as a [omitted] in central Queensland and commenced work there in mid July 2011 on a fly in fly out basis.
Up to this point, the mother had not informed the father what was occurring. Nor did these arrangements necessitate a relocation or any other change in the parenting arrangements for the children. Hence, there was no need for the father to be consulted or advised about these changes in Mr B’s employment.
Within a few weeks of commencing work, Mr B was invited to assume extra responsibilities as [occupation omitted], to which he agreed. His current income is $129,000 per annum before tax. Of that, a little over $240 per week or about $12,500 per annum represents a payment for discharging the duties of [occupation omitted].
The mother's evidence was that a few weeks after Mr B accepted the extra responsibilities as [occupation omitted], he was advised that the [omitted] wanted him to live locally to be on call if necessary. Thus, he could no longer fly in and fly out if he retained these responsibilities. I am satisfied this evidence in incorrect. Mr B’s evidence, which I accept, is that he knew when he accepted the responsibilities of [occupation omitted] that he could no longer fly in and fly out.
The mother and Mr B discussed the option of moving to Queensland in relation to the added responsibilities for Mr B that would preclude him flying in and flying out The mother said she told Mr B she would have to talk to the father about any move, and that if the father objected, she could not move. The mother said she then spoke to the father, and although he was unhappy about the children moving away, she said he did not object. She said she would tell him when she had a specific date for the move. Although the father had not given his explicit consent to the move, the mother told Mr B that he had.
The mother said she and Mr B then made arrangements to relocate. She said she gave verbal notice to the managing agent for her rented premises of the date she would be vacating, and she said the agent told her not to give written notice until about three weeks before vacating the premises. She and Mr B secured rented accommodation in central Queensland on a rental that was $30 per week more than their accommodation in western Sydney. The mother said she then told the father of the date of the move. Again, she said he did not object. In fact, she suggested the father had made comments suggesting he consented to the move, despite being unhappy about seeing less of the children.
The following day, solicitors wrote to the mother on behalf of the father objecting to her moving the children and seeking an undertaking that she would not do so. The solicitor’s letter also proposed a change in the parenting arrangements, seeking to increase the father's time gradually with a view to eventually having an equal time arrangement.
The mother then commenced these proceedings, seeking inter alia permission to relocate. That application could not be heard until
10 January 2012. The mother said that as she had terminated her lease, she had nowhere to stay, and so she went ahead with the relocation on the previously arranged date of 14 November 2012, before her application was heard.
The father asserted he made it clear to the mother at all times they discussed the issue that he objected to her relocating the children to Queensland.
Because of the view I take of the credit of both parents, I am sceptical about the accuracy of the evidence of both of them as to what was said between them about the mother's move to Queensland.
The father was unhappy about the move and expressed that unhappiness to the mother. So much is not in issue. However, I am not satisfied the father expressed himself as clearly opposing the move until his solicitor wrote to the mother after she had already finalised arrangements for the move. On the mother's side, I am not satisfied the father made the comments she alleged that indicated he agreed to the mother's proposed move. However, I am satisfied that the mother assumed, consistent with the father expressing dissatisfaction about the reduction of his time with the children from fortnightly to monthly in 2010 but acquiescing in that reduction, that absent clear opposition to the proposed move, he would acquiesce in it.
In those circumstances, I am not satisfied that the mother’s move with the children to Queensland warrants any greater criticism of one party than the other. It is, however, a clear illustration of the communication difficulties that exist between these parties.
The mother has arranged for [Y] to be referred to a speech therapist due to a speech delay.
The father now pays child support of $23.67 per month for the two children, that is, about $2.75 per child per week. The father admitted in cross-examination that his assertion that last year he was paying $128 per month was incorrect. Despite conceding the amount of child support he pays is not enough to support the children, the father nonetheless applied to the CSA to credit amounts he paid for airfares to see the children under the interim orders made in January 2012 against his child support liability. He was unsuccessful in this application.
I note that the father said he has not done his tax return for the last financial year, and that what he said he is currently earning ($18,000 per annum, or $1500 per month) is significantly less than the aggregate of the amount he said he deposited to a joint account with Ms M ($1500 per month) and the amount he said he had left over after doing so ($150 to $200 per week). There is thus considerable doubt that the father is currently paying an amount of child support commensurate with his income.
The very modest amount of child support the father pays towards the financial support of his children leaves the mother to meet almost all the costs of supporting the children. As the mother does not work outside the home, that cost in fact falls on Mr B, who has no legal obligation to support these children. That obligation rests on the parents. This is relevant in my view because of the evidence of the financial advantage to Mr B, and thus to the mother and the children, of Mr B’s employment in Queensland. That financial advantage to the mother and the children in turn rests on the durability of the relationship between the mother and Mr B.
If the court ordered the mother to return with the children to western Sydney, the evidence of the mother and Mr B indicates that while the mother would return, it is unclear whether Mr B would also return. When asked what he would do if the court ordered the children to return to Sydney, Mr B said he did not know what he would do, it would not be very good for him and the mother, and he and the mother would need to talk about it in detail. This evidence raises concerns in my mind about the durability of the relationship between the mother and Mr B, who have one child together with another due next April, if the children are ordered to return to Sydney, and hence the emotional and financial security and wellbeing of the children in the mother's household if ordered to return.
The father said in cross-examination that his aim was to secure the return of the whole of the mother's present family to western Sydney, and admitted he had not considered the possibility of the orders he was seeking causing the break up of the mother's relationship with
Mr B. He said this is not what he would want. He also conceded that he had not thought of the possibility that the unhappiness he conceded would be caused by forcing the whole of the mother's family to return against their will to Sydney would cause strains in the relationship between the mother and Mr B. The probability of that is so obvious as to suggest the father has not seriously thought through the possible consequences for the children of what he seeks. When asked if he thought if a forced return caused strains in the mother's relationship with Mr B it may adversely affect the children, the father did not answer the question, instead stating he did not consent to the move to Queensland. This in my view betrays the father's blindness to the effect of what he seeks on the children. I am satisfied he is motivated more by his animosity for the mother than his concern for the children.
I am satisfied that ordering a return as the father seeks will place very significant strain on the mother's relationship with Mr B, and will place that relationship in jeopardy. If the court ordered the mother and children to return and Mr B accompanied them, I am satisfied this would impose significant financial and emotional strains on the mother, and through her, on the children.
The mother’s extended family, and thus the children’s extended maternal family, all live in western Sydney. None of them have spare room to suitably accommodate the mother and her children other than for a brief visit. The father's extended family live in the Sydney area with the exception of the children’s paternal grandfather, who lives in country New South Wales.
The children have been living in central Queensland now for a little over twelve months. I am satisfied they are now well settled there.
[X] is registered at school under the name of Bateman, but is known at school by the name of [B]. The mother said that in 2011, [X] spoke to her about last names, and whether the mother's last name would change to [B] if she married Mr B. She said [X] said he wanted to be known as [X B], started telling people that was his name, and would get very upset if told he could not use that name. The mother is not married to
Mr B. She contended she had been unable to dissuade [X] from using the name of [B].
In 2011, [X] was just five. I find the mother's assertion that she has so little ability to persuade and influence her five year old son not credible. She was quite prepared to tell [X] in quite uncompromising terms that he was not to talk to her about his father because she was sick of hearing about him. She could have been just as blunt and assertive about [X]’s last name, but chose not to be because, I am satisfied, it quite suited the mother for [X] to do things that would distance him from his father, and that would upset and offend the father. Calling Mr B “Dad” and the father by his given name was another example of such behaviour by the mother.
The evidence of Mr B indicates he too was at best acquiescent in [X]’s use of his last name and calling him Dad. He made no attempt to dissuade [X] from this. He agreed to [X] doing so. Despite admitting he never stopped to think of the effect of this on the father, he would not agree that it would have been better to work out another name for [X] to call him other than Dad. Hence he too has sought to undermine the father's position with his sons, and to supplant the father in the children’s lives, and remains unrepentant about it.
I am not satisfied either the mother or Mr B appreciate or value the benefit to the children of having an ongoing meaningful relationship with their father, and have not simply failed to promote that relationship but have actively sought to undermine it.
However, I am satisfied that undermining the children’s relationship with their father was not a reason for the decision by the mother and Mr B to move with the children to Queensland. And I am satisfied that the father is equally guilty of seeking to undermine and damage the children’s relationship with their mother, by his criticism and denigration of the mother and Mr B to the children.
As the father sought an order requiring the mother to relocate back to Sydney with the children to facilitate an equal time arrangement, I asked the father in cross-examination why I should not order him to relocate close to the mother to facilitate such an arrangement. He said he has lived in western Sydney all his life and he now owns his home there, his wife is expecting a baby next year, he was not the one to move away, he did not consent to the children moving away, his work and all his family are in western Sydney, and if he was required to move it would be a great disruption. He conceded that it would also be a great disruption for the mother and her household if she was ordered to come back to Sydney.
When asked to say why he should not be ordered to move to the mother's locality by reference to the children’s interests, not his, the father said the children had been brought up in the area where he lived, they were missing out on their extended family in the area, and he will not get to know them with the limited time he has had under the interim order made in January 2012. He thus did not answer the question.
The Family Consultant’s evidence
The Family Consultant reported that [X] told her his name was “[X B]”, and he had another name, “[X Bateman]”. He asked the Family Consultant not to disclose what he said to the mother, and appeared to the Family Consultant to be nervous providing the information about his name. He said his mother did not like him telling people he had two dads and told the Family Consultant he wanted to call both his father and Mr B “Dad”. He opted for the Family Consultant to refer to his father as “[first name omitted]” and Mr B as “Dad”.
[X] indicated he was aware his parents had a poor relationship and said he was not allowed to talk about his father with the mother and
Mr B, the mother telling him she is sick of hearing about the father. As mentioned, I am satisfied the mother has said this to [X] more than once. He also indicated that his parents fight with each other during phone calls.
The Family Consultant reported that at interview, while reporting some apparently negative aspects of his time with each of his parents, [X] chose “happy” Bear Cards to represent each of his parents, and opined that the child indicated a positive relationship with the mother and identified no negative attributes or worries regarding the father.
[X] told the Family Consultant there was nothing he liked about Mr B, and reported the use of physical discipline by him. He reported a positive relationship with Ms M. However, since her marriage to the father, [X] told the Family Consultant that the father had told him to call Ms M “Mum”, and that he felt “weird” about this. I accept that the father has told the children to call Ms M “Mum”, and that when one considers his criticisms of the mother for allowing the children to call Mr B “Dad”, he is either being hypocritical, or worse, using the children as weapons in the conflict with the mother in a tit for tat response to the children calling Mr B “Dad”. I am satisfied it is more likely than not to be the latter.
[X] appeared to understand that if the parents continue to live far apart geographically, he will not see one parent very often, whichever parent he lives with. He expressed a preference to live with the mother but to spend more time with the father during holidays. However, the Family Consultant expressed the opinion that given [X]’s age and apparent developmental level, his views should be given limited weight.
At interview, [Y] referred to Mr B as “Daddy” and to the father as “[first name omitted]”. The Family Consultant was of the opinion that given [Y]’s age and apparent developmental level, his views could not be relied on in determining the matter.
The Family Consultant expressed the opinion that during observation sessions of the children with each of the parents and their partners in turn, the children “appeared to have positive and established relationships” with both parents, engaging with both parents and appearing relaxed and comfortable throughout the observation sessions. [X]’s relationships with his parents appeared in the Family Consultant’s opinion to be consistent with information he provided at interview.
Both children appeared in the opinion of the Family Consultant to have “close and positive relationships with Ms M and Mr B”. The Family Consultant was of the opinion that the information [X] provided at interview regarding his relationship with Mr B (of whom [X] said there was nothing he liked) appeared inconsistent with the boy’s observed behaviour with Mr B. The Family Consultant expressed no opinion why this was so, and did not indicate whether this had any particular significance.
Importantly in my view, the Family Consultant said in her report-
“65. If the children were unable to maintain a relationship with both parents, it is likely to have a detrimental impact on their emotional wellbeing and/or behaviour, including identity development. [X] and [Y]’s capacity to maintain a positive relationship with both of their parents is likely to be dependent on her (sic) parents’ respective parenting capacities and their willingness to support her (sic) having a relationship with the other parent. At times, (the mother and the father) presented a negative view of the other, which appeared to be shared by their respective partners. As such, concerns are raised regarding both parents’ willingness and ability to appropriately encourage and support [X] and [Y] to maintain a relationship with the other.”
This opinion is consistent with the evidence I have heard, and I share the concerns of the Family Consultant. I am satisfied both parents have failed to differentiate the children’s positive and beneficial relationships with the other parent from their own very negative and highly conflictual relationships with that parent as a former partner. Thus, I am satisfied both parents have caused the children distress, have exposed the children to the risk of significant psychological harm, have failed to meet the children’s fundamental needs for protection and positive nurture, and thus have both neglected an aspect of their children’s needs and jeopardised their wellbeing.
It is imperative for the protection of these children from the risk of significant psychological harm that both parents immediately cease expressing negative views and opinions about the other parent or that parent’s partner or extended family in the presence or hearing of the children, prevent anyone else from doing so in their household, and positively foster and encourage the children’s relationship with the other parent, including encouraging the children to feel free to talk to them about the other parent and activities enjoyed with that parent. This will “permit” the children to enjoy their relationships with both parents without feeling any conflict of loyalties between their parents, both of whom they love.
When cross-examined about the children spending time with the father during school holidays if the children remained in Queensland, the Family Consultant said that the children could presently manage half of all school holidays with the father given their good and strong relationship with him. However, she said that the father's proposal for four weeks during the Christmas school holidays was inappropriate at [Y]’s current age, and suggested this would not be appropriate until the end of [Y]’s first year at school. She expressed the opinion that [Y] could manage three weeks with the father in the coming Christmas school holidays.
As to the mother's then proposal that the children remain with her for the whole of one school holiday period each year, the Family Consultant expressed the opinion that not having the whole of a school holiday period with the mother needed to be balanced against the benefit to the children of having that time with the father, bearing in mind the limited opportunities for the children to spend time with him if they remain in Queensland.
Mother's proposals
The mother seeks to remain living with the children in central Queensland. I have indicated the orders she seeks.
The mother and Mr B live in a rented four bedroom home in a regional centre in central Queensland. The boys share a bedroom at their request. [X] attends the local state school located about 700 metres from the mother’s home. [Y] attends pre-school five days a fortnight and attends a playgroup once a week. He attends speech therapy once a week. Both boys are involved in extra-curricular activities in their community.
Father's proposals
The father is a self-employed [omitted] working variable hours. He said his working hours are flexible and he is able to deliver the children to and collect the children from school or child care.
The father recently bought the home in which he has been living from his father for $369,000, and is paying off a mortgage at $2240 month.
The father proposed to enrol [X] in the local state school, located about a one minute drive or five minute walk from his home. The father proposed that [X] attend before and after school care at a child care centre close to the school he proposed the child attend. He said under an arrangement between the school and child care centre, an employee of the child care centre walks the students between the child care facility and the school. He said the child care facility was open from 7.00 am to 6.00 pm. Despite his evidence of having flexible working hours and being able to deliver the children to and collect the children from school or child care, it remained unclear on the father's evidence as to when and where he would usually be dropping the children off and collecting them each weekday.
Ms M works each week from 9.00 am to 5.30 pm on Monday, Tuesday, Thursday and Friday and from 9.30 am to 4.00 pm on Saturday. However, she said her working hours are flexible to cater for dropping off or picking up the children at school or child care if required. The father indicated he was available to attend to this.
All the father's extended family live in the Sydney area, with the exception of the children’s paternal grandfather, who lives in country New South Wales.
If the children remain in Queensland, the father said he was not sure if he could afford to meet the cost of either collecting or returning the children from or to the mother’s locality each school holidays for the children to spend time with him, that is, meeting the cost of one round trip for himself and a one way fare for each of the children four times a year. He wanted to mother to meet the whole of the cost of the children’s travel.
The father gave no evidence as to how he proposed [Y]’s speech difficulties should be addressed if the children returned to Sydney and either lived on an equal time basis with the parents or lived primarily with him..
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders. As the proceedings began before the commencement of Schedule 1 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, a number of the amendments effected by that Schedule, importantly those as to s.60CC, do not apply to these proceedings (see Part 2 of Schedule 1).
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
S.60B sets out the objects and principles of Part VII.
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). S.60CC indicates how the court determines the children's best interests.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order made, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied, the Court must consider making such an order (section 65DAA(1)(c) and (2)(e) and see MRR & GR (2010) HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424. As to the Court’s power to consider options other than those presented by the parties and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, KB & TC, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224.
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
Both children have a good relationship with both parents, love both parents, and crave time with both parents. They have benefited in the past, and can benefit in the future, from a meaningful relationship with both parents. Both parents profess to acknowledge this, but I am satisfied they are simply giving lip service to platitudes and have no real commitment to promoting the children’s relationships with the other parent.
While the major focus of the parties in these proceedings has been whether the children should remain in Queensland or return to New South Wales, I am satisfied that there is a far more significant impediment to the children having and benefiting from a meaningful relationship with both parents than the tyranny of distance, and that is the exposure of the children to the parental conflict, and both parents’ denigration of the other to the children.
Where ever the children live, unless the parents stop denigrating the other parent and his or her partner to the children, these children will receive an unambiguous message from each parent that the parent does not “permit”, and in fact strongly opposes, the children knowing and being cared for by the other parent (cf s.60B(2)(a)). The children thus will be placed in a position of demonstrating disloyalty to one parent when ever they appear to want to spend time with the other parent or to enjoy time spent with the other parent. This will place intolerable emotional and psychological pressure on the children, and may cause them to say things to one parent suggesting a negative attitude towards the other parent to hide their affection for the other parent and to thus not appear disloyal to the first parent. In time, these conflicted loyalties may become so emotionally painful for either or both of the children that they may feel forced to choose to align with one parent and reject the other parent.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother's grandmother gave evidence of having once witnessed the father throw [X] onto a lounge when he was two and a half. The mother alleged on oath that during cohabitation the father used marijuana regularly and that she had concerns the father continued to use marijuana. The father alleged on oath that the children are unclean and in dirty clothing at the commencement of his time, often not wearing any footwear or underwear. He further alleged on oath that he had “serious concerns for the children’s health and well being”.
These are serious allegations. If any of these matters were true, they would raise protective concerns that the children may be at risk of abuse or neglect. Yet neither party pursued any of these matters in the course of the hearing. In fact, the parenting proposals of both parents in my view cannot be reconciled with these allegations, especially in the father's case, where his primary position is that there should be an equal time care arrangement despite him claiming to have “serious concerns for the children’s health and well being” with the mother.
I am left with no alternative other than to find that both parents have recklessly made serious allegations against the other parent that they either did not believe to be true or that they did not believe were genuine concerns for the children. In my view, this speaks volumes both as to the credit of both parents as witnesses and the depth of animosity between them.
On the other hand, the evidence of the mother's grandmother was not challenged, and there is no basis on which I could not accept it as true. But it was no adverted to in the submissions on behalf of the mother in support of the orders she sought, and the orders she sought are not consistent with any concern on the mother's part that the behaviour observed by her grandmother may recur. I therefore proceed on the basis that there is no present risk of abuse or physical neglect of the children at the hands of the father.
However, I am satisfied there is a risk of psychological harm to these children. It arises from both parents’ exposure of the children to their poisonous attitude towards each other, and the denigration by both parents of the other directly to, and in the presence and hearing of, the children. That, in my view, involves neglect of the children’s emotional and psychological needs, and involves the real risk of significant psychological harm to both children. However, as I am satisfied both parents are equally guilty of this behaviour, this consideration favours neither party.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
[X] indicated a preference to remain living with the mother but to spend more time with the father during holidays. I accept the opinion of the Family Consultant that due to [X]’s age and apparent developmental level, limited weight should be attached to his views. However, they are relevant and should be accorded some limited weight.
I am satisfied [Y] is too young for any views he may express to be accorded any weight.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
I am satisfied both children have a close and loving relationship with both parents. However, the mother has been the children’s primary carer since birth, and I am satisfied the children have a closer bond with the mother than with the father.
I am satisfied both children have a good relationship with Mr B and
Ms M. I note that [X]’s observed interaction with Mr B was not consistent with his negative statements to the Family Consultant about Mr B, and I am satisfied the child’s comment was a result of the negative comments the father has been making to the children about Mr B. As the children have had more involvement with Mr B over a longer period than with Ms M, I am satisfied they have a closer relationship with him than with Ms M.
I am satisfied the children have a good relationship with their half brother [Z] and are excited at the prospect of having a new brother or sister in 2013. I infer Ms M’s pregnancy is so recent and the father's time with the children so infrequent that he has not yet had an opportunity to share with them the news of another expected brother or sister. I have no reason to doubt that they will be equally as excited at the impending arrival of Ms M’s child as the mother's child.
The evidence does not enable me to make any meaningful assessment of the children’s relationships with other members of their extended families.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Both parents have failed to encourage the children’s relationships with the other parent. In fact, both parents have undermined and sought to damage the children's relationships with the other parent by criticising and denigrating the other parent and his or her partner to the children. As I have already observed, this in my view amounts to neglect of the children and risks causing the children significant psychological harm.
As already observed, there must be real concern for the welfare of the children in the future, whatever parenting arrangement may be in place, unless both parents cease their denigration and criticism of the other parent and his or her partner to or in the presence or hearing of the children.
The conduct of the mother and Mr B in facilitating [X]’s use of Mr B’s name and calling him Dad and the father by his given name, and the father's conduct in attempting to have [X] call Ms M Mum, indicate that orders are necessary to ensure both children are known by their birth names at all times, and to regulate the terms by which the children address their parents and step parents. This is necessary to attempt to protect and recognise the unique positions of the mother and the father, positions that cannot be filled by the step parents.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
If the children remain living with the mother in Queensland, they will remain living with their habitual primary carer in the location of her preference in a well settled environment. They will live in a stable family with a reasonable degree of financial security, despite the very low level of child support the father pays and the fact the mother is not in the paid workforce. However, they will have only a relatively infrequent opportunity to spend time with the father, and for relatively young children such as these, this is of particular significance. For young children such as these, the relatively infrequent time they could spend with their father while remaining in Queensland will slow the development and deepening of their relationship and bond with their father. It will also risk increasing the potentially caustic effects of the mother's negative attitude towards the father, as there will be longer periods between the times the children can spend with the father.
If the children return to western Sydney and live there primarily with the mother and spend time with the father, as the mother proposed if ordered to return, they will have an opportunity to spend more frequent time with their father while remaining in the care of their habitual primary carer. However, the mother will be unhappy at being forced to move against her will and her relationship with the father of her youngest child will be placed under considerable strain, with a consequent significant risk that the children will suffer through the mother being unhappy and emotionally less available to the children. The standard of living of the mother and hence of the children will significantly deteriorate whether or not her partner returns to Sydney with her. And it seems inevitable that the mother's displeasure at having to move against her will would exacerbate the poisonous relationship between the parents, and the children may be exposed to even more intense parental conflict and animosity.
If the children and the mother return to western Sydney and the children live there in an equal time care arrangement, as the father proposed, the children will have an opportunity to spend much more time with the father but at the cost of having significantly longer periods than they have ever spent before away from their habitual primary carer. I am satisfied this would be distressing to the children. As with the option of returning but continuing to live primarily with the mother, the mother will be unhappy at being forced to move against her will and her relationship with the father of her youngest child will be placed under considerable strain, with a consequent significant risk that the children will suffer through the mother being unhappy and emotionally less available to the children. The standard of living of the mother and the children will significantly deteriorate whether or not her partner returns to Sydney with her, in both the mother's and the father's households. And it seems inevitable that the mother's displeasure at having to move against her will would exacerbate the poisonous relationship between the parents, and the children may be exposed to even more intense parental conflict and animosity.
The father sought as a third alternative that if the children were ordered to be returned to the western Sydney area and the mother did not also return, the children live primarily with him. The mother's evidence was that while she did not know where she would live, and did not know how she would afford to meet her and the children’s living expenses, if the court ordered the return of the children she too would return. Thus, the option of the children returning and the mother not returning seems academic. Nonetheless, it must be said that while this result would enable the children to have much greater time with the father, it would come at the cost of the children being deprived of frequent time with their habitual primary carer, and in my view would have very serious adverse consequences for the children. It must also be said that the father's assertion that he could meet the added costs of supporting the children on a full time care basis despite asserting he could not afford to contribute anything to the cost of travel for the children to spend time with him if they remained living in Queensland was simply not credible.
As mentioned, I raised with the father in cross-examination the option of him being required to move to the mother's locality to facilitate more frequent time with the children. While I was satisfied his reasons for opposing that option related to his convenience and preference and not to the interests of the children, he in fact not being prepared or able to address the issue from the children’s perspective, I do not propose to further consider this option, which was not pressed by either party despite my explicitly raising it.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The geographic separation of the parties under the mother's proposals, the relatively high cost of airfares in and out of the town where the mother wishes to remain living, and the father's limited financial capacity, mean the mother's proposal creates significant practical difficulties in the children maintaining the frequency of time with the father that would be possible if the parties lived in close geographic proximity. It means that in this case, the children could not spend time with their father more frequently than four times a year. This is illustrated by the father's inability to afford his share of the cost of monthly time with the children under the interim orders made in January 2012.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Both parents have shown an inability to prioritise the children’s needs over the parental conflict. Both have neglected the children's emotional needs in this respect. This is a significant deficit in the parenting capacity of both parents.
Both parents have demonstrated an inability to appreciate the importance to the children of maintaining a positive relationship with the other parent. Both have hindered the children’s relationships with the other parent by their denigration of the other parent to the children, in the mother's case by facilitating [X] going by the name of [B] and addressing Mr B as Dad and the father by his given name, and in the father’s case by encouraging the children to call Ms M Mum. This too is a significant deficit in the parenting capacity of both parents.
I am not satisfied the father is attuned to the children’s emotional needs more generally. When asked if he thought an order that the children live with him on a full time basis if the children were ordered to return to Sydney but the mother did not accompany them would affect the children, he said it would and the children would miss their mother, but no more than they miss him. Later, having agreed the mother was the most important person in the children’s lives at present, he conceded that the children would grieve for their mother, but not for long. However, he said he was not sure if the children would feel a deep sense of loss. He nonetheless repeated that he did not see any difference between the children missing their mother and missing him.
Where the mother has been the children’s habitual primary carer from birth, and considering the relatively limited time the father has spent with the children over the past two years, this evidence betrays an inability by the father to appreciate the far greater impact on these children of separation from the mother than from the father because of the much stronger attachment they have formed with the mother by dint of the preponderance of time they have spent in her care.
I am also concerned at the father’s lack of interest in [X]’s progress at school. While the mother unilaterally decided what school the child should attend and volunteered no information to the father about [X]’s progress at school, the father made no enquiry of the mother about [X]’s schooling, nor did he attempt to contact the child’s school about his progress, despite knowing the school [X] attends, contrary to his assertion he did not know. His initial answer that he did not ask the mother about “school things” because he does not need to ask for it, where he otherwise neither had nor sought such information from any other source, betrays a lack of interest or concern in the child’s education, and raises serious doubts about the father's capacity to meet the children’s intellectual needs.
Apart from the matters just traversed, I am satisfied that both parents are able to meet the children’s needs. However, I am satisfied that the mother is better able to meet their needs than the father. She has been their habitual primary carer since birth, both before and after the parties separated, and no credible criticism of her parenting has been raised, apart from the foregoing. The father agreed to the mother remaining the children’s primary carer at all times after separation. Although he may have been unhappy about reductions in his time with the children, there was never any suggestion by the father that he should assume equal care of the children until the mother proposed to move interstate.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have already referred to the ages of the children. There is no other matter relevant to this consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parents’ mutual denigration to the children, the mother's facilitating [X] adopting Mr B’s name and supplanting his father with Mr B, and the father's encouraging the children to call Ms M have already been noted.
I am also concerned under this consideration at the father's attempt to have his very modest level of child support even further reduced by his share of the costs of travel for the children to spend time with him under the interim order of January 2012.
(j) Any family violence involving the child or a member of the child’s family
This consideration is not relevant.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
This consideration is not relevant.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am not satisfied one option presented to the court is less likely than any other to lead to further litigation between these parties. I am satisfied that whatever order the court makes, unless both parents stop criticising and denigrating the other parent to the children, and unless they address their poisonous attitude towards each other and progress to a workable relationship as parents of two children who love both parents and who deserve the right to enjoy their relationship with both parents without hindrance or interference from either parent, then there is a high likelihood of any orders breaking down and the matter returning to court.
The one qualification to this is in relation to parental responsibility. As I will shortly elaborate, I am satisfied that a sole parental responsibility order is less likely than an equal shared parental responsibility order to lead to further proceedings. For reasons I will shortly give, I am satisfied it would be preferable to make a sole parental responsibility order.
(m) Any other fact or circumstance that the court thinks is relevant
There are no other relevant considerations.
Consideration of s.60CC(4) and (4A)
The mother enrolled the children after separation in pre-school and school, and arranged speech therapy for [X], without any consultation with the father.
The mother and the children came to Sydney on the Friday prior to this hearing, and thus were in Sydney for the weekend before the hearing. The mother made no attempt to offer the father time with the children on that weekend. She said she did not think of it. I am satisfied the reason the mother did not offer the father time with the children is because of the mother's animosity towards the father. She was unable to put the children’s welfare above her conflict with the father. This is simply one illustration of the mother's lamentable failure to appreciate the importance to these children of maintaining their relationship with their father.
I am satisfied both parties have sought to be appropriately involved with the children, with the qualification that soon after separation, the father sought to reduce his weekends with the children from every weekend because he wanted some weekends to himself.
I am satisfied the father has paid child support as assessed from time to time, albeit his modest income means his contribution to the children’s material needs is meagre in the extreme, and in reality, Mr B, who bears no legal obligation to support these children, meets the vast majority of the children’s material needs. I have already noted my concern about the father's attempt to have his very meagre child support payments further reduced by his share of the costs of travel to spend time with the children under the interim orders of January 2012.
Assessment of competing proposals and other options
As mentioned, the mother sought sole parental responsibility while the father sought equal shared parental responsibility. The rebuttable presumption about equal shared parental responsibility arises under s.61DA, there being no matters proven that would enliven s.61DA(2).
I am satisfied that the presumption as to equal shared parental responsibility under s.61DA is rebutted in this case because I am satisfied that the poisonous relationship between the parents renders the exercise of equal shared parental responsibility impossible.
An equal shared parental responsibility order requires that before any decision about a major long-term issue about either child is made, the parents must consult together about the decision, make a genuine effort to come to a joint decision about the issue, and make the decision jointly (s.65DAC).
There is no constructive or respectful communication between these parents. They have demonstrated themselves incapable at present of making genuine efforts to make joint decisions about the children. Even though the father said he was concerned at [Y]’s speech difficulties and believed he would benefit from attending speech therapy, he did not raise his concerns with the mother. The mother unilaterally arranged speech therapy for [Y].
I am satisfied that an order for equal shared parental responsibility would simply prevent decisions on major long-term issues being made without an application to the court, and I am satisfied this would not be in the children’s best interests.
I am conscious of the risk that conferring sole parental responsibility on one parent will arm that parent with a potentially powerful weapon that may be wielded against the other parent in furtherance of the parental conflict and not necessarily in a child-focussed way. Nonetheless, I am satisfied the parent with whom the children primarily live should have sole parental responsibility, subject to a requirement to keep the other parent informed at all times of decisions made and of matters concerning the children, particularly medical and educational issues, and not to involve the children in activities that occur during time the children are to spend with the other parent without the prior consent of the other parent.
In relation to the father's application for equal time with the children, even if the parents lived in close geographic proximity, I am satisfied it is in the children’s best interests to live primarily with the mother. She has been their habitual primary carer since birth. The father has agreed to the continuation of that arrangement after separation until the mother proposed to move to Queensland. The father did not want to continue the agreement the parents reached at separation for him to spend every weekend with the children because he wanted some weekends to himself. He later acquiesced in the further reduction of his time to one weekend a month.
I am satisfied the mother is better able to meet the children’s needs than the father. While both parents have significant parenting deficits around their inability to shield the children from the parental conflict, I am satisfied the father's parenting capacity is further deficient in relation to his ability to meet the children’s emotional needs more generally and their intellectual needs. The mother is available to care for the children full time, whereas the extent to which the father may need to rely on child care was unclear on his evidence.
I am satisfied that it is in the children’s best interests to remain living with the mother in Queensland. The children are well settled there with the mother, and she is meeting their needs (subject to her criticism and denigration of the father to the children). I am satisfied that the mother's parenting would be significantly compromised by ordering the children to return to western Sydney. I am satisfied ordering the children’s return to Sydney would cause the mother distress and unhappiness in not being able to live where she chooses, would place considerable strain on her relationship with the father of her youngest child, and would create significant financial stress for her household.
I am satisfied the children are well settled in the mother's household in Queensland, with their step father and half brother, and this household has become a significant element in their sense of security and in meeting their needs. I am satisfied that this would all be significantly jeopardised by ordering a return to Sydney. Based on Mr B’s evidence of uncertainty whether he would accompany the mother if the court ordered the children’s return, I am satisfied ordering a return could destroy the household that provides a significant measure of the children’s present security and is presently well meeting their needs, including their material needs.
I am satisfied that permitting the children to remain living with the mother in Queensland will significantly limit the frequency of time the children may spend with their father. I am satisfied that the parties cannot afford the costs of travel for more than four occasions a year for the children to spend time with the father, coinciding with the Queensland school holidays. This is significantly less frequent than the one weekend a month the children enjoyed with the father before the mother relocated. Even allowing aggregate time during school holidays in excess of the aggregate time the children previously spent with the father of one weekend a month will not compensate for the relatively infrequent time the children will be able to spend with the father if they remain in Queensland, which is particularly significant with children of this relatively young age.
I am satisfied that if the parental conflict continues unabated and the children remain exposed to it as before, that there is a real risk that the longer the time the children are with the mother and the less frequent the time the children spend with the father, the greater the risk that the children’s relationship with the father will be damaged.
However, on balance I am satisfied that the detrimental impact on the children of ordering their return to Sydney is greater than the detrimental impact on the children of allowing them to remain in Queensland, and the beneficial impact on the children of remaining in Queensland is greater than the beneficial impact of ordering their return to Sydney.
While of relatively little significance, I note that the children remaining with the mother and spending time with the father during school holidays is in accordance with [X]’s views.
Decision
I am therefore satisfied that it is in the children’s best interests that the mothers have sole parental responsibility for the children, that the children live with the mother in Queensland, and that they spend time with the father in New South Wales during the Queensland school holidays. I am satisfied that the time with the father should occur every school holidays, should initially be for half of all school holidays, and that commencing with the Christmas school holidays at the end of [Y]’s first year at school, the time during the Christmas school holidays should increase to four weeks. I am satisfied the parents should equally bear the cost of the children’s travel, and be solely responsible for their own costs of travel to accompany the children so long as the children need to be accompanied by a parent.
I am also satisfied it is in the children’s best interests that the mother be restrained from engaging the children in any extra curricular activities that occur during time the children are to spend with the father without his prior written consent, that she keep him informed of decisions she proposes to make in relation to major long-term matters concerning either child.
I am satisfied it is in the children’s best interests that the mother keep the father informed of all contacts by both children with health care professionals, including but not limited to doctors, therapists, counsellors, dentists and orthodontists, and keep him advised of all treatment recommendations of those health care professionals, including full details of any speech or other therapy recommended for either child or in which either child may be engaged. The mother should also be required to provide each health care professional with any necessary authority to discuss the children’s condition and treatment with the father.
I am satisfied it is in the children best interests that both parents be restrained from denigrating or criticising the other parent or members of the other parent’s household or family, to or in the presence of either child and from allowing any other person to do so. Both parents should also be restrained from physically disciplining the children and from allowing any other person to do so, having regard to the evidence concerning physical discipline of the children by the mother and
Mr B.
I am satisfied it is in the children’s best interests that the mother be required to keep the father informed of the pre-school or school attended by each child and to authorise the provision to the father of copies of all school reports, newsletters and the like.
I am satisfied it is in the children’s best interests that both parents be restrained from referring to the children by any name other than their birth name and from allowing any other person to do so, and from allowing any person other than the mother to be referred to as Mum or any similar word and from allowing any person other than the father to be referred to as Dad or any similar word. However, such restraint should not prevent a step parent being referred to as Mum or Dad in as a prefix to their given name.
I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate:
Date: 17 December 2012
0
3
2