Benson & Drury
[2017] FamCA 578
•9 August 2017
FAMILY COURT OF AUSTRALIA
| BENSON & DRURY | [2017] FamCA 578 |
| FAMILY LAW – CHILDREN – Final orders – Parental responsibility – Family violence – Where a finding of family violence dispels the presumption of equal shared parental responsibility – Where there is evidence that the parties have limited ability to communicate and effect handovers – Where there is evidence that the parties are not able to decide matters relating to the children’s health and education– Order for shared parental responsibility save for matters of the children’s health and education whereby the mother shall have sole parental responsibility and shall consult with the father. FAMILY LAW – CHILDREN – Relocation – Time with father – Bests interests of the children –Meaningful relationship – Where mother seeks orders to relocate interstate – Where the father seeks orders for equal care arrangement – Where the mother has significant career prospects interstate – Where there is no reason to doubt the mother’s compliance with any orders – Where the mother and children are permitted to relocate interstate – Where orders are made for the father to spend time with the children. |
Where the parties have not finalised property proceedings and are now out of time to commence proceedings.
| Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth) Part 15.5, r 15.13 A v A (2000) FLC 93-035 |
| APPLICANT: | Mr Benson |
| RESPONDENT: | Ms Drury |
| FILE NUMBER: | ADC | 3749 | of | 2015 |
| DATE DELIVERED: | 9 August 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 6, 7, 8, 9, 10 & 23 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hemsley |
| SOLICITOR FOR THE APPLICANT: | Adelaide Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke QC |
| SOLICITOR FOR THE RESPONDENT: | D'Angelo Kavanagh |
Orders
That all previous parenting orders be discharged.
That the parties have shared parental responsibility for B born … 2005 and C born … 2008 (“the children”) for all major issues save and except health and education.
That the mother do have sole parental responsibility in respect of health issues and education affecting the children subject to a requirement that she will advise the father in writing (electronically or otherwise), provide her views about any major issues affecting the children’s health (including medical, dental, counselling and psychological therapy)and which school they attend and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
The children shall live with the mother.
From the commencement of 2018 and provided that the current offer of employment is not withdrawn and remains available, the mother be permitted to relocate the children to Melbourne in the State of Victoria.
Following relocation the children spend time with the father as follows:-
(a)For three (3) long weekends in each calendar year at such times as may be agreed between the parties;
(b)In addition to sub-paragraph (a), for one (1) weekend in each school term from Friday afternoon to Sunday afternoon at such times as the parties may agree;
(c)For the Easter period from the afternoon on Maundy Thursday to the afternoon of Easter Monday at such times as may be agreed between the parties in odd numbered years;
(d)For the first half of school holidays including Christmas Day in even numbered years and the second half in odd numbered years;
(e)If the father shall elect to travel to Melbourne to spend time with the children and upon him giving reasonable notice of his intention to do so, for two (2) further weekends in each school term from Friday afternoon to Sunday afternoon at such times as the parties may agree;
(f)At such other times as may be agreed in writing.
That for the purpose of the children spending time with the father in Adelaide:-
(a)That to give effect to paragraph 6(a), (b), (c), (d) and (f), the mother will arrange for and pay for airfares for the children from Melbourne to Adelaide and return and provide the father with the travel itinerary by email at least fourteen (14) days prior to the start of travel;
(b)The mother or her nominee shall take the children to the airport in Melbourne and ensure that the children are placed on the aircraft to travel to Adelaide and the father or his nominee shall ensure that he or his nominee is at the airport in Adelaide to collect the children;
(c)The father or his nominee will take the children to the airport in Adelaide and ensure the children are placed on the aircraft to travel to Melbourne and the mother or her nominee shall ensure that she or her nominee is at the airport in Melbourne to collect the children;
(d)The mother shall ensure the children are available to take telephone calls from the father as soon as reasonably practicable prior to their departure from Melbourne travelling to Adelaide and the father shall ensure that the children are available to take telephone calls from the mother as soon as reasonably practicable after their arrival in Adelaide;
(e)The father shall ensure the children are available to take telephone calls from the mother as soon as reasonably practicable prior to their departure from Adelaide travelling to Melbourne and the mother shall ensure that the children are available to take telephone calls from the father as soon as reasonably practicable after their arrival in Melbourne;
(f)If either party is not personally transporting the children to and from the airport either in Adelaide or in Melbourne they will inform the other party by email in advance as to who will be doing so.
That in respect of the time that the father may elect to spend with the children in Melbourne:-
(a) The father will fund his own travel expenses;
(b)The father will provide the mother with notice of his intention to spend time with the children by email prior to the commencement of each school term;
(c)The father is permitted to include the weekend of Father’s Day as one of his weekends but is not to include the weekend of Mother’s Day as one of his weekends.
The children are to be at liberty to communicate by way of telephone, Skype, Facetime or Email with the parent with whom they are not spending time and the parent with who they are currently spending time is to facilitate such communication upon the children’s request.
Each party shall inform the other as soon as possible of any medical emergency involving either of the children.
Each party shall keep the other informed of their current residential addresses, home and mobile telephone numbers and email addresses.
The mother will:-
(a)Authorise the children’s school/s to provide the father with copies of school reports, notices, other publications and any other information he may request about the children;
(b)Keep the father informed of the children’s significant school and extra-curricular activities;
(c)If requested by the father make the children available for collection by the father from school when the children are to spend time with him in Melbourne.
In the alternative and until relocation, should the mother not elect to relocate to Melbourne or that the offer of employment is withdrawn or no longer available, or if the father shall relocate to live in Melbourne THEN:-
(a) The children shall live with the mother;
(b) The children shall spend time with the father as follows:-
(i)From the conclusion of school on Friday to the commencement of school on the following Monday or 6 pm if the Monday is a non-school day and each alternate weekend thereafter;
(ii)On the intervening Wednesday night from the conclusion of school until the commencement of school on the following Thursday morning and each alternate week thereafter;
(iii)Excluding the Christmas school holidays, for all other school holidays for one half of the holidays from 9 am on the mid- Saturday of the school holiday period until 6 pm on the last Sunday of the school holiday period;
(iv)For one half of the Christmas school holidays in each school period on a week about basis;
(v)For Mother’s Day and Father’s Day in each year:-
1. In the event that Mother’s Day falls when the children are in the father’s care THEN the children are to spend time with the mother from 6 pm on Saturday immediately preceding Mother’s Day to 6 pm on Mother’s Day;
2. In the event that Father’s Day falls when the children are in the mother’s care THEN the children are to spend time with the father from 6 pm on Saturday immediately preceding Father’s Day to 6 pm on Father’s Day;
(vi)On the children’s birthdays in each year:-
1. In the event the children’s birthday fall when the children are in their father’s care THEN the children are to spend time with the mother for a minimum period of five (5) hours to be agreed or in default of agreement from 9 am until 2 pm SAVE AND EXCEPT should the children’s birthday fall on a school day THEN the children do spend time with the mother from the conclusion of school until 8 pm;
2. In the event the children’s birthday fall when the children are in their mother’s care THEN the children are to spend time with the father for a minimum period of five (5) hours to be agreed or in default of agreement from 9 am until 2 pm SAVE AND EXCEPT should the children’s birthday fall on a school day THEN the children do spend time with the father from the conclusion of school until 8 pm.
(vii)For the mother’s and father’s birthday in each year:-
1. In the event the mother’s birthday falls when the children are in the father’s care then the children are to spend time with the mother for a minimum period of five (5) hours to be agreed or in default of agreement from 9 am to 2 pm SAVE AND EXCEPT should the mother’s birthday fall on a school day THEN the children do spend time with the mother from the conclusion of school until 8 pm;
2. In the event the father’s birthday falls when the children are in their mother’s care then the children are to spend time with the father for a minimum period of five (5) hours to be agreed or in default of agreement from 9 am to 2 pm.
(viii)At such other times as may be agreed in writing.
That handover not at school shall occur at the mother’s home with the father causing the return of the children to the mother’s home by a person other than the father NOTING that the nominated person is to remain in the motor vehicle when returning the children.
The children are to be at liberty to communicate by way of telephone, Skype, Facetime or Email with the parent with whom they are not spending time and the parent with who they are currently spending time is to facilitate such communication upon the children’s request.
That other than in circumstances and on occasions when the children are in the care of each of the parties the parent who does not have the care of the children is restrained and an injunction is granted restraining him or her from attending at any school function, extra-curricular activity, sporting fixture and practice SAVE as may be agreed between the parties.
That the parties do all such things and authorise the children’s schools to allow both parents to be provided with copies of school information including but not limited to notices, circulars, reports cards and the like.
The parties do all such things as to entitle each of them access to important documentation regarding the children including but not limited to medical records.
Each party shall inform the other as soon as possible of any medical emergency involving either of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Drury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3749 of 2015
| Mr Benson |
Applicant
And
| Ms Drury |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed on 8 October 2015 Mr Benson (‘the father”) seeks parenting orders in respect of the children B (“B”) born in 2005 (age 11) and C (“C”) born in 2008 (age 9) (collectively, “the children”).
By her third amended Response filed 25 January 2017 Ms Drury (“the mother”) opposes the orders sought by the father and seeks an order for relocation.
The father seeks equal shared parental responsibility and the following spend time with orders as set out in his outline of case document:-
a)That the children do live with each parent for an equal period of time each fortnight and failing agreement with time to commence on a Thursday after school (or 3.00 pm if a non-school day). That the non-resident parent is to have dinner with the children on the intervening Monday or Tuesday night until 7.30 pm;
b)In 2017 and each alternate year thereafter, the father spend time with the children in the April and September/October school holidays during the second half of the holiday period;
c)Time with the children over Easter; where Easter falls in the April holidays, time as the preceding paragraph. Where Easter falls outside the April holidays each alternate Easter with the father from Maundy Thursday until the resumption of school;
d)In 2017 and each alternate year thereafter, the father spend time with the children in the June/July school holidays during the first half of the holiday period;
e)The father spend time with the children during the December/January school holiday period for the first, third and fifth weeks of the school holidays in 2017/2018 and each alternate year thereafter (and in the alternative quarters for each intervening year);
f)For Christmas Day, the children spend time with the resident parent in accordance with the preceding paragraph;
g)Orders for Mother’s Day and Father’s Day whereby the children spend from 6.00 pm the night before to 6.00 pm the night of in the care of the relevant parent;
h)Orders for the children’s birthdays whereby the non-resident parent spend time with the children from the conclusion of school until 7.30 pm.
i)That on the father’s birthday and where the children are in the mother’s care, the children spend time with him from 7.30 pm the night before until 6.00 pm the night of.
The mother seeks sole parental responsibility and an order that she be permitted to relocate with the children from Adelaide to Melbourne. If permitted, the mother proposes the father spend time with the children:-
a)For the first half of the December/January school holidays in even numbered years and the second half of the school holidays in odd numbered years;
b)For the Easter period in odd-numbered years;
c)For 3 long weekends each calendar year by agreement of the parties;
d)If the father travels to Melbourne (with the father to fund his travel and provide written notice to the mother of his intention to travel) then time with the children on two weekends every school term from Friday until 7.30 pm Sunday;
If the mother is not permitted to relocate she seeks sole parental responsibility and that the children live with her and spend time with the father as follows:-
a)For C:-
i)In the alternate week – from the conclusion of school on Friday until the commencement of school on Monday (or 6.00 pm if Monday is a non-school day);
ii)In the intervening week – from after school on Wednesday until 7.30 pm
b)For B:-
i)In the alternate week – From the conclusion of school on Friday until 7.30 pm Sunday;
ii)In the intervening week – from after school on Wednesday until 7.30 pm
c)For school holidays (excluding the Christmas period) for one half of the holidays from the mid-Saturday until 6.00 pm on the last Sunday and for one-half of the Christmas school holiday period on a week-about basis;
For the children’s birthdays for a period of 5 hours from 9 am until 2 pm if the day falls on a weekend or from after school until 8 pm if the day is a school day. She seeks similar orders for the mother’s and father’s birthday.
For Mother’s and Father’s Day she seeks the same orders as sought by the father.
The current parenting arrangements are as set out in the Orders made 6 April 2016 whereby the children live with the mother and spend time with the father from the conclusion of school on Friday until the commencement of school on Monday (or 6.00 pm if a non-school day) each alternate week and in the intervening week from the conclusion of school on Wednesday until 7.30 pm.
BACKGROUND
The father was born in 1966 and is 50 years of age. He is a consultant. The mother was born in 1974 and is 43 years of age. She is employed as an academic.
The parties commenced a relationship in 2004 and separated on 4 November 2014.
The parties lived together at D Street, Suburb E (“the former matrimonial home”). Initially following separation, the parties shared the care of the children at the former matrimonial home in alternate weeks. This became untenable in March 2015 at which time the mother relocated to her mother’s property.
From March 2015 until 6 July 2015 and subject to agreement in respect of school holidays and the parties’ availability, the children lived with the parties as follows:-
a)Week 1 – Monday and Tuesday (2 nights) – Mother
b)Week 1 – Wednesday and Thursday (2 nights) – Father
c)Week 1 – Friday to Week 2 Tuesday (5 nights) – Mother
d)Week 2 – Wednesday to Sunday (5 nights) – Father
Throughout this period the parties were able to negotiate the father’s seven day work trip, time with the parties over the Easter and June/July holidays and Mother’s Day including a trip the father had planned to take the children to Melbourne during the second week of the June/July school holidays.
On 6 July 2015 an altercation occurred during handover at the mother’s house. The mother alleges the father threatened to kill her. The father admits to saying “I could kill you” during an argument concerning C not wanting to travel to Victoria with the father as arranged. The father denies screaming or yelling these words at the mother, that it was said in a threatening manner or that the mother was in anyway fearful or threatened by the comment. He says the comment was an expression of the level of frustration caused by the mother. The mother reported the matter to the police.
Following the incident the father began his travel to Victoria with the children and was required to report to the F Town Police Station for a welfare check. The father was subsequently permitted to continue travelling to Victoria with the children.
On 19 July 2015 the father was served with an interim intervention order listing the mother and the children as protected persons. That interim intervention order was amended on 4 August 2015 removing the children from the order effective on 18 August 2015.
On 14 October 2015 the intervention order was modified to reduce the minimum distance of the father approaching the mother from 50 metres to 5 metres.
The final intervention order was granted on 4 August 2016 without admission by the father.
The father did not spend time with the children for a period of 6 weeks following the 6 July 2015 incident. He then spent supervised time with the children each Sunday until February 2016.
Despite the interim intervention order, the mother alleges the father continued to make contact with her and attend at functions which he knew the children would be in attendance. An example of this was B’s birthday in 2015 where the father attended the child’s birthday celebrations at a local park.
On 4 February 2016 Orders provided for the children to live with the mother and spend time with the father each Sunday from 8.30 am until 6.00 pm. The focus was to facilitate the father’s time with the children to fall in line with their sporting commitments. The father’s time was the subject of supervision.
Commencing 8 April 2016 the father was to spend time with the children each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or 6.00 pm if Monday is a non-school day) and in each intervening week from the conclusion of school on Wednesday until 7.30 pm.
The Orders of 6 April 2016 also made provisions for the parties’ time with the children in the September 2016 and the December/January 2017 school holidays, and on Mother’s and Father’s Day. Two injunctions were imposed:-
[5] That other than in circumstances and occasions when the children are in the care of each of the parties the non-residential parent be restrained and an injunctions are granted restraining him or her from attending at any school functions, extra-curricular activities and sporting fixtures, and practices.
[6] The parties be restrained and injunctions are hereby granted restraining them from causing or engaging the children in any counselling with any psychologist, social worker or other health professional SAVE AND EXCEPT the children’s medical practitioners or other practitioner to which the children may be referred without the other parties’ written consent.
In accordance with those orders, the children spent time with the father each alternate weekend. The child C spent time until Monday whilst the child B was more unsettled and sought to return to the mother’s care on Sunday nights so she could take him to school on Monday.
The father contends that when the child B was advised he was spending the whole weekend with him, the child was fine and only became upset when he was given the option to return to the mother’s house on the Sunday evening.
Following consultation with the child B’s psychiatrist, the parties amended the orders to provide that the child would return to the mother’s care on Sunday night. Whilst the father submits this only related to the weekend of the 17 June 2016, the mother alleges the orders were agreed on the understanding that the arrangement would be ongoing.
Following the orders of 6 April 2016 the father became a self-represented litigant. The father again engaged solicitors on 1 November 2016.
During his period of self-representation, the mother says he made a number of attempts to contact her, via her solicitors in respect of “urgent communication”. An example of such communication was correspondence about whether the child C would be attending sports training on an evening.
The mental health of the children
Following the parties’ separation, both parties’ acknowledge that the children have been subject to a stressful environment and have responded adversely to the parties’ separation. Each party contends that other is at fault, they agree the impact is damaging to the children’s well-being.
In particular B is displaying physical symptoms of anxiety including panic attacks, stomach pains and a dry throat.
Following separation, the mother alleges the child’s stomach pains would increase in intensity when he was due to spend time with the father. The father believes that the symptoms are more general in nature and are due to the parents not talking, the lack of time he spends with the father and the mother’s emotional wellbeing.
In December 2014, the child B consulted with clinical psychologist Ms G (4 sessions) and subsequently with psychologist, Ms H on 19 April 2015 (6 sessions).
The mother alleges that Ms H considered that the child’s symptoms are the result of separation anxiety from the mother. The mother subsequently informed the father of this and the parties both attended with Ms H in July 2015 to address techniques for assisting with B’s anxiety.
The mother alleges that the child’s stomach pains subsided between 14 July 2015 until 18 August 2015, being the intervention order period. The child consulted with Ms H on 19 August 2015 at which point the mother was advised that if the pains had settled then the child did not need to undergo further consultations.
Following the order of 6 April 2016, the parties recognise the child displayed heighted symptoms of anxiety including difficulty sleeping, a dry throat and the onset of migraines. The mother alleges that the child was increasingly anxious of the prospect of spending three nights with the father each alternative week.
On 29 May 2016, the child’s symptoms became so significant that the child was referred to a psychiatrist, Dr J. The father was informed of the child’s medical treatment and he communicated directly with Dr J.
The child saw a neurologist, Dr K who subsequently prepared a report on 1 November 2016, noting the child’s migraines had largely settled down.
C has also reacted badly to the separation. The father observed him to “hold his parents to ransom or explode in anger with little cause”.
The mother observed there were handovers, including 6 July 2015, when the child would refuse to spend time with the father. She also observed that on occasions when the father would attend cricket practice, such as 23 February 2016, the child would appear “panicky if the two of us get too close”.
The mother’s application for relocation
On 6 September 2016 the mother informed the father of her intention to relocate interstate to Melbourne, Victoria with the children. If her application is approved, she proposes that the father spend time with the children as outlined in her third response.
The mother’s reason for relocation is an offer of employment. She considers it to be a significant career move. She has accepted the position pending delivery of judgment.
She recognises the difficulty that interstate relocation will have on the children and submits that they are both resilient and will be able to adapt to the change. She proposes that the children attend L School and M School. The mother points out that the Primary School is located 1.4 kilometres from her place of work. She further submits that the position will allow her to work flexible, child-friendly hours, concluding work each day in time to collect the children from school.
She submits that the children will still be able to maintain a close relationship with their father. The father has a sister in Melbourne and the mother is agreeable to the father spending additional time with the children when he is in Melbourne. She also notes the relatively cheap price of interstate flights between Adelaide and Melbourne.
CHRONOLOGY
1966
The father is born (age 50)
1974
The mother is born (age 43)
2003
The parties meet
February 2004
The parties commence a relationship
2005
The child B is born (age 11)
2008
The child C is born (age 9)
2009
The mother completes her PhD studies
March 2009
The mother commences employment as an academic
2011
The father commences work as a consultant
October 2011
The father sees Mr N, clinical psychologist for anger management
2 July 2012
Report from Dr O (psychiatrist) – assessment of whether mother has borderline personality disorder
4 November 2014
The parties separate
November 2014 – February 2015
The parties care for the children on an equal basis; blocks of two and five nights each at the former matrimonial home
December 2014
The child B consults with Ms G, clinical psychologist
19 January 2015 – 21 January 2016
Husband consults monthly with psychiatrist, Dr P
February 2015 – July 2015
The parties care for the children on an equal basis at their respective homes
February – August 2015
The father is employed with the public service (and continues work as a consultant)
March 2015
The mother vacates the former matrimonial home. The mother resides in her parents property at Q Street, Suburb R (“the Suburb R property”)
19 April 2015
The child B begins consulting with Ms H, psychologist (6 visits)
6 July 2015
The father attends at the mother’s house for handover, an argument ensues and the father threatens to kill the mother
10 July 2015
Mother makes application for interim intervention order
14 July 2015
Mother is granted an interim intervention order against the father
19 July 2015
Interim Intervention order served on father listing mother and children as protected persons
14 July 2015 – 18 August 2015
The children spent no time with the father
4 August 2015
The children are removed as protected persons from the intervention order, effective 18 August 2015
August 2015 – February 2016
The father has supervised time with the children each Sunday. The father also attends the children’s sporting events several times per week
August 2015 – December 2016
The mother consults with psychologist, Ms S (20 sessions)
14 October 2015
Intervention order modified reducing the minimum distance of the father approaching the mother
2015
The father attends upon B’s birthday party hosted by the mother in a park despite an interim intervention order
February 2016 – October 2016
The father consults with Mr T, mental health social worker
4 February 2016
Orders made for the children to spend time with the father each Sunday for a period of 9 hours supervised and dinner in the intervening week
6 April 2016
Orders made for the father to spend overnight time with the children (Friday – Monday) each alternate weekend
April 2016
B’s anxiety increases
23 June 2016
The father completes a parenting program
June 2016 – August 2016
The child B attends upon Dr J, psychiatrist
4 August 2016
Final intervention order granted without admission by the father listing the mother as a protected person
DOCUMENTS RELIED UPON BY THE PARTIES
The father relies upon the following documents:-
a)Initiating Application filed 8 October 2015;
b)Father’s Affidavit filed 22 October 2015;
c)Father’s Affidavit filed 20 December 2016;
d)Affidavit of Ms U filed 16 December 2016;
e)Affidavit of Mr V filed 19 December 2016;
f)Affidavit of Mr W filed 19 December 2016;
g)Affidavit of Ms X filed 3 February 2017.
The mother relies upon the following documents:-
a)Third Amended Response to Initiating Application filed 25 January 2017;
b)Mother’s Affidavit filed 25 January 2017;
c)Affidavit of Ms S filed 23 January 2017;
d)Affidavit of Mr Y filed 24 January 2017;
e)Affidavit of Ms Z filed 24 January 2017.
PROPOSALS OF THE PARTIES
The father seeks an order that the parties have equal shared parental responsibility and that the children live with each of the parties for equal time.
The mother seeks sole parental responsibility for the children and that they live with her in Melbourne and spend time with the father for half of the school holidays, three long weekends in each calendar year and at such other times as may be agreed.
If the father travels to Melbourne then the children should spend time with him on two weekends during each school term.
The mother proposes to pay for the children’s air travel to and from Melbourne.
Should the mother be unsuccessful in her application to relocate with the children, then she continues to seek sole parental responsibility, that the children live with her and that the father spend time with C each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday, with B from the conclusion of school on Friday to 7.30 pm on Sunday and in relation to both children for some hours on the intervening Wednesday from the conclusion of school until 7.30 pm.
The issues in dispute are as follows:-
·Parental responsibility
·Relocation
·The father’s time with the children if relocation to Melbourne is permitted and if not, in Adelaide
EVIDENCE
The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles as set out therein I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR. The parties were both represented by experienced counsel.
Both of the parties filed objections to evidence, but I was not asked to deal with the objections individually but rather to have regard to the matters raised in those documents when considering the evidence.
I considered that I should not dispense with the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in the section were not the subject of application.
In making that determination I considered the following matters:-
a) The importance of the evidence in the proceedings;
b) The nature of the subject matter of the proceedings;
c) The probative value of the evidence;
d) The power of the Court (if any) to adjourn the hearing to make another order or to give directions in relation to the evidence.
Notwithstanding that evidence may be received which in the ordinary course would be otherwise inadmissible, I explained to the parties that it is a matter of weight that I may give to the evidence rather than its exclusion, either in terms of the application of any part or portion of the Evidence Act or pursuant to Rule 15.13 of the Family Law Rules 2004 (Cth) (“the Rules”) whereby I am entitled irrespective of the provisions of s 69ZT to strike out evidence if I consider it to be scandalous, irrelevant or unnecessary.
I reminded the parties of the provisions of s 69ZV which relates to my ability to receive the evidence of children which would ordinarily contravene the rules of hearsay and importantly s 69ZX which relates to the general duties and powers of the Court.
The father
The father relied upon his trial affidavit filed 20 December 2016. He was granted leave to adduce further evidence in examination in chief.
A complaint of the mother is that the father is obsessive in involving the children in extra-curricular activities and insisting that they perform at a competitive level. At paragraph 21 of the mother’s trial affidavit she refers to an incident that occurred on 11 September 2015 where the father had reprimanded B whilst he was coaching the child’s sports team. The mother highlights the tension that exists between B and the father arising from his expectations on the child to excel.
The father considered that B had behaved badly and in his capacity as the team coach he told B that his behaviour was unacceptable.
Paragraph 68.1 of the mother’s affidavit refers to B’s birthday in 2015. The mother had arranged a birthday celebration in a local park. Without warning, the father attended notwithstanding that there was an intervention order. The father realised that the mother was angry at his presence and he concedes that she was probably right to be upset. He later forwarded an email apologising for his behaviour.
The mother alleges that the father was the perpetrator of family violence during the course of the relationship. The father was controlling in his behaviour and the mother alleges that the father had grabbed her around the neck and threw her to the ground in the presence of the children.
The mother refers to the orders of 4 February 2016 and asserts that notwithstanding the intervention order, the father pushes the boundaries of the order and she is unnerved by his behaviour. She refers to the father’s attendance at B’s cricket game on 19 February 2016 when she says the father arrived and positioned himself unnecessarily close to her. The father’s evidence is that he arrived before the mother and set himself up near the team. He alleges that it was the mother who set up close to him and he took the precaution of taking a photo of the mother and B. The father’s evidence is that at no stage did he interfere with the mother across the day. He concedes that he did involve himself in assisting the children to “pad up”. The photo taken by the father is exhibit “1” in the proceedings.
The father was challenged in respect of his conduct and that notwithstanding the change in the conditions of the intervention order, he nonetheless positioned himself close to where the mother and the child would attend as exhibited on 19 February 2016. The father had the option of placing himself away from the team and therefore the mother and B. He did not do so.
As part of the mother’s application for an intervention order, she alleged that when B was about seven or eight years of age the father was angry that B did not wish to participate in the sporting activities as nominated by the father. He called the child a “twit” and said he was “pathetic”. The mother intervened and there was an angry exchange in front of the child. The father agreed that he did refer to the child as alleged but it was not said in anger or in any attempt to demean the child.
The mother contends that the father had high expectations for the children, but in particular C. In term 2, the father enrolled C in a sport which trained on Wednesday after school and on Saturday morning, another sport which trained Wednesday night and Sunday morning, a different sport which trained on Friday night, a different sport was also on Friday night after school and then on Thursday night for another sport during winter. The mother alleges that the child’s commitments were excessive. The father acknowledged that he had overcommitted the children but had intended to withdraw them from the majority of the activities.
The interim intervention order was made on 14 July 2015. It required that the father not be within 50 metres of the mother or the children. It was subsequently amended on 4 August 2015 removing the children as protected persons (effective 18 August 2015) and again on 14 October 2015 reducing the minimum distance requirement from 50 metres to 5 metres. On 4 August 2016 the final intervention order provided for the father to not be within 5 metres of the protected person now restricted to the mother. Condition 15 of the order is in the following terms:-
Notwithstanding the other terms of this order contact is not permitted within 5 m of the protected person(s) when both the defendant and the protected person are present at events involving their children…
The issue is not whether the father has committed a breach of the order but rather, to maintain a respectful distance from the mother and to ensure that the children do not experience distress and anxiety occasioned by the conflict engulfing the parties.
I find the father’s evidence unconvincing in his denial of an intention to comply both with the precise conditions of the intervention order but also the spirit of the order.
The father is self-employed undertakes travel for work. He has contracts but the extent of his work-related obligations varies. He has not yet lodged his 2016 tax return and when asked to estimate his income for the 2016 financial year, he thought that it would be about $70,000. He was uncertain when he intended to lodge his return but thought that it would be sometime in 2017.
The issue of the father’s preparedness to lodge his returns was uncontroversial, however the father’s response was evasive and non-committal.
The financial circumstances of the parties have some relevance to the proceedings in that following separation the father continues to reside in the former matrimonial home. The father has remained in occupation since March 2015. It is alleged that he has not paid the mortgage on the home for nearly 12 months and it is assumed that he is drawing down on the surplus funds paid on the mortgage. The father has made various claims that he is unable to pay the mortgage, but intends to do so. The mother resides with the children in the Suburb R property.
The father was asked to consider what his income was likely to be in the 2017 financial year. At the date of trial the father had the advantage of the first six months of trade. He had contracts with various government agencies. He had the assistance of an accountant to help him in the preparation of his financial and taxation affairs. The father admitted that he rents out the former matrimonial home on “Airbnb”. When asked to estimate the extent of the rental commitment, he considered it to be on average about 200 nights. He has received about $10,000. On some occasions when there are guests in the former matrimonial home the children are also present.
The father conceded that he has never sought permission from the mother to let the premises on Airbnb and whilst he agrees that the children have been present during periods of rental, it has occurred on only six to eight occasions. The home is substantial and comprises four bedrooms. The children share a bedroom. The father has his own bedroom and accordingly there is rental capacity.
The father was keen to remain in the former matrimonial home but was not able to provide any evidence as to the financial circumstances of each of the parties and how he would manage the retention of the home.
There are no proceedings before the Court in respect of property settlement and it is noted that the parties are out of time to bring proceedings pursuant to s 90SM of the Act. There is no application for leave to extend time. The property is held in the names of the parties as joint tenants. In the absence of any other litigation, it can be presumed that the mother would be entitled to one half of the net value of the former matrimonial home, but in the absence of any assistance from the parties or their solicitors, it is difficult to ascertain the likelihood of the father being able to purchase the mother’s interest.
The father’s presentation of the evidence appeared either uncertain or deliberately evasive both in terms of his financial circumstances and his intention and ability to effect a transfer of the mother’s interest to him.
Whether he can retain the former matrimonial home is a relevant consideration. It is part of the mother’s case that she needs to look to her financial resources and that the security of the employment opportunity in Melbourne is a relevant factor in terms of her ability to financially provide for the children.
The mother submits that she has been a victim of domestic violence at the hands of the father. Paragraph 39.2 of the mother’s trial affidavit alleges that the father grabbed the mother by the throat and choked her whilst she was pregnant with C and whilst B was present. The father admits that he put his hands around the mother’s throat, but that he neither strangled nor squeezed her throat.
The father admits that at times his behaviour was violent and aggressive. He is relieved that the children generally were not present, but admits that on the occasion that he put his hands around the mother’s throat B was present.
The father agreed that the mother did not invent the father’s threat to kill her. Whilst he considers that the words he used were “I could kill you”, with reluctance he accepted that the mother was entitled to be concerned even though he did not have an overt intention to carry out his threat.
The father had difficulty in accepting that the words used, even on his own version, had the potential to be threatening. He does not necessarily concede that the mother was frightened by his words and actions and the clear implication is that she has seized upon the incident in order to gain an advantage in the litigation. The father asserts that much of the mother’s affidavit in respect of family violence is contrived.
The mother alleges that communication between the parties is difficult, particularly when it relates to the children. The issue for consideration by the father focusses on his assertion that the parties will be able to co-parent. He says that once the Court makes an order for equal shared parental responsibility and shared care, that is likely to relieve the stress, tension and anxiety of all parties and will pave the way for more civil communication between the mother and the father.
At paragraph 41 of the mother’s trial affidavit, she refers to the father’s “explosive anger” or “sudden anger” and the fear that she experiences both from his conduct, but also his communication. Annexure “KMD 3” to the mother’s trial affidavit is a copy of the father’s email communication to the mother dated 19 November 2014.
The sense of the document can be gleaned from the following extracts where the father is recalling passages he read in an anger management book:-
Subject: Anger stuff – don’t read if you are worried about it
From what I am reading, there is no doubt whatsoever that I have an explosive anger style, specifically known as “sudden anger”. People with this may feel fine one minute, then be screaming their head off, out of control, unable to stop it even though being aware that its happening. Then its gone. Unfortunately it doesn’t just then go away for the people around me, who are left confused and upset.
…
They say it is possible that I’d need to consult a physician but will assume that I can learn to slow down my angry reactions with commitment and education.
…
Those with sudden anger don’t know the gun is loaded. They don’t even know they are carrying a gun. The answer to the puzzle, why do some people have more trouble controlling their anger than others, is that they don’t pay attention to the warning signs. The book later goes on to suggest ways to notice anger’s warning signs.
People with sudden anger style have adult capabilities of suppressing angry and violent impulses, but sometimes they seem to forget about them. Moments of frustration bring out the little kid in them. Those with a sudden anger style don’t lose control every time they get frustrated. They seem to explode by chance but its actually when anger has built up, perhaps over a range of very minor things, but they have been ignoring the warning signs.
Whilst the father agreed that it must not have been easy for the mother in dealing with his conduct, to some extent the father suggests that the mother has been experiencing the behaviour for a sufficient period of time to now be able to put it into perspective.
I find that the father takes scant responsibility for his conduct and seems to minimise the very real and adverse effect of his behaviour on the mother.
The father considers that the mother is over-stretched in her ability to parent the children. When challenged he conceded it was not necessarily a reflection of her inadequate parenting, but rather, the circumstances brought about by the parties’ separation.
The father was asked to reconsider his concerns expressed in paragraph 10 of his affidavit filed 17 November 2015 wherein he alleges that the mother was verbally and emotionally abusive during the relationship. Specifically, the father says:-
…The mother would also disrupt or sabotage many of the family events that we had planned, for example, the mother would refuse to come on trips at short notice, causing significant reorganisation, and then change her mind again at the last minute. There were isolated physical incidents which may constitute domestic violence by both of us…
The father’s evidence is that the environment in the household was such that in October 2011 he attended upon a counsellor, Mr N for assistance in dealing with work related stress and the verbal and emotional abuse perpetrated by the mother towards him.
The father considers that the mother was the instigator of arguments and that he was responsible only for a few isolated outbursts. The summary of his evidence is that he was reactive to the mother’s conduct.
I find from the father’s evidence that he accepts little responsibility for his conduct and was keen to minimise or to place into context his physical and aggressive displays coupled with clear anger management issues.
The father accepts that at present the mother does not wish to communicate directly with him, but considers that the mother’s stance is both unnecessary and unreasonable. Whilst considering that the mother is disingenuous in her refusal to communicate, the father did accept that this would make co-parenting more difficult if the mother’s position remained unchanged.
When pressed, the father conceded that the mother may well find the father’s behaviour overwhelming and that it is now his position not to “bombard” the mother. Whilst he rejects that he continues to do so, he accepts that the mother may not have been able to accept a change in the father’s presentation. He specifically rejects any allegation by the mother that he harasses her.
The father appeared to lack insight in terms of the consequences of his controlling behaviour.
The father views B’s anxiety as being possibly caused as a result of the mother’s parenting style.
Paragraph 43 of the father’s affidavit filed 31 October 2016 refers to the father wanting to be included in decisions relating to the sporting activities of the children. The following is stated:-
…I was particularly keen to see it done well this year because [B] ended up regretting the choices made in conjunction with his mother the previous year. I was also concerned that the mother was starting to reduce the children’s involvement with their school friends in order to advance her agenda for relocation.
It was put to the father that he had leapt to the worst possible interpretation, rather than considering the suitability of B being overwhelmed by his circumstances. The father was asked to reflect upon his response and considered that it was unnecessary.
The evidence supports a finding that there is a high level of mistrust between the parties.
The father was asked again to reflect upon his view that B’s anxiety is exacerbated by the mother. The proposition was put to the father that if he thinks that this has happened, then how is there any chance for the parties to better communicate? The father’s response was that he hopes the situation would improve and whilst the relationship between the parties may at present seem at a low ebb, it does not need to remain as such and the father hopes that the mother will be able to move on and accept that he now has a different approach to her.
By order made 6 April 2016 the parties were restrained from causing or engaging the children to undergo any counselling other than on the advice of the children’s medical practitioner.
The mother considered that B should gain assistance from a health practitioner to manage his anxiety. She attended upon the child’s medical practitioner and a referral was obtained for the child to attend upon a psychiatrist. The father did not agree and contacted the child’s general practitioner providing him with information from the family assessment report.
Whilst B’s doctor altered his opinion, nonetheless he also formed the view that he wished to remove himself from the clear conflict between the parties.
The mother relies upon a letter of report by Dr J dated 30 June 2016. The doctors observations of the child are in the following terms:-
On mental state examination, [B] was noted to be a young boy who looks slightly younger than his stated age. He was quite timid and shy with a downcast gaze however this became slightly more reactive as the interview progressed. There was not much spontaneous speech and he often spoke in a soft tone. His conversation was developmentally appropriate. His affect was restricted and at times he appeared to be tearful, particularly when discussing safety issues. There were no perceptual abnormalities. His relationship with his Mum appeared superficially appropriate.
In summary, the doctor considered that he exhibited “clear features suggestive of Generalised Anxiety Disorder with the recurrent panic attacks which are being displayed through the physical symptoms”. There is little doubt that much of his behaviour can be attributed to the family breakdown and the risk is that an untreated anxiety disorder may progress to a depressive disorder.
The report of 29 August 2016 refers to a recent assessment of B following a meeting in which an agreement was reached that B would be able to spend time with his father according to his wishes. The father’s time with the child did not take place according to the parenting arrangement. Consequently, it was the opinion of Dr J that the child was displaying heightened anxiety as a result of the parental conflict. In order to better promote the child’s mental health, the opinion was that the child’s time with the father should be spent according to the child’s wishes and not an arrangement imposed upon him.
Whilst the father remains concerned as to the academic advancement of the child, the school reports would suggest that the child is generally functioning at an acceptable academic level.
It was put to the father that he did not trust the mother to put forward the right information and that this was a prime example of the father’s interference in the mother’s management and parenting of the children.
The father continues to be disparaging of the mother’s parenting. Paragraph 6 of his second affidavit filed 31 October 2016 asserts that “The mother has a history of providing incomplete or inaccurate information to and in regard to mental health practitioners”. The father has no faith in the mother’s ability to “support an objective assessment”.
He further alleges that she has little insight into the children’s emotions and “has a misconception that [the father] have anger management issues that contribute to B’s anxiety and continually misconstrue B’s anxiety as being related to time spent with me despite multiple lines of evidence to the contrary”. He also alleges that the mother is not supporting the children’s educational needs and extra-curricular activities.
The father complains that the parties are not able to discuss parenting arrangements for the children. In particular he refers to a response from the mother that is not yet forthcoming to his proposal that C increase his music tuition from once a fortnight to once a week. On closer exploration, the father admitted that he had arranged for the child to engage in music tuition on a fortnightly basis to coincide with the time that the child spends in his care. No approval from the mother was sought, but now he wants the mother’s consent to amend the arrangements he made. The father was not able to understand the mother’s lack of response in the context of her responding to the unilateral arrangement put in place by the father.
Paragraph 43 of the father’s trial affidavit refers to an incident in September 2011. The father reports that his perception of the mother’s lack of support for his work caused him to become so angry that he “threw some plates and upon seeing the mother’s laptop on a bench next to [him], [He] swept it to the floor. [He] wrote a statement about the mother on a wall then left to calm down and get some sleep”.
He says that he was so disappointed by his actions that he consulted a general practitioner and obtained a referral to Mr N, psychologist. He was provided with some reading material about Borderline Personality Disorder and he then consulted with Ms AA “who was considered to be a specialist in this area”.
The father concedes that he did not tell the mother about his plan to have Ms AA surreptitiously assess the mother for a Borderline Personality Disorder and is critical of the mother for becoming hostile and defensive upon her learning of the deception.
The father effectively tricked the mother into attending upon Ms AA. Any suggestion by Mr N that the mother may have been suffering from mental illness could only have come from the history provided by the father. The father’s conduct bordered on the outrageous. He admits to duping the mother to attend the session with Ms AA, but seems surprised that the mother was upset at his manipulative conduct.
The father was asked to reflect upon the report from Ms AA to Dr Noel dated 23 March 2012. She expressed concern at the mother’s psychological presentation and reports that:-
…She was overtly tearful and distressed throughout the interview, and waited for the appointment to commence sitting on the front porch of my practice in preference to sitting with [the father] in the waiting area. She expressed feeling threatened by the father’s intermittent outbursts of aggression and referred to instances in which he had “grabbed me by the throat”, thrown objects, and written derogatory comments about her on the walls of their home. [The father] did not deny these behaviours but demonstrated a tendency to minimise and dismiss.
The report refers to the father’s belief as to the cause of the mother’s distress namely, that she suffered from a personality disorder. He considered that the difficulties in the relationship were as a result of the mother’s mental illness rather than any conduct on his behalf.
The father agreed to the accuracy of Ms AA’s remarks. The father was asked whether it is still his view that the mother suffers from a mental disorder. His response was that he was clearly unqualified, but to the extent that there was any residual fear or concern, he was comforted by the mother attending upon her own psychiatrist for assistance.
The mother was so concerned about the examination and findings of Ms AA that she undertook an examination by a psychiatrist, Dr O on 2 July 2012. The results of that examination were that the mother does not suffer from borderline personality disorder.
The father acknowledges that he forwarded an email to the mother, sent the day after his statement that he could kill the mother. The father acknowledged that the email contained insulting language including that the mother is to blame for all that has occurred in the relationship. The father was asked to review the email and conceded that it did not contain a single conciliatory remark. The reasonable implication is that the father deeply resents the mother’s behaviour. He accepts that he was resentful at the time, but now admits that the letter was too strong in its sentiment and inappropriate in its content.
The father attended upon Mr T, a mental health social worker, for general assistance, but in particular to assist the father manage his anger from February 2016 until October 2016. The father admitted to displaying an explosive anger style, but his evidence was such that I find that he is still equivocal about his behaviour. Whilst he considered that his anger was under control, he was keen to inculcate the mother in terms of her behaviour as part of the explanation for his own behaviour.
Annexure “JBB-22” to the father’s trial affidavit attaches a report of the father’s counselling progress with Mr T. The annexure is curious. The father annexes what appears to be a final report and a draft report.
The father’s evidence is that he received the original report and then provided a critique on that report to the author. The father then provided a list of comments including a marked up version of the changes that he considered were appropriate and that resulted in a new updated report. The final report summarises the original considerations by the author and any comments and remarks by the father.
In Mazorski & Albright [2007] 37 Fam LR 518, Brown J considered that a meaningful relationship was synonymous with a significant or important relationship.
I am satisfied that the relationship between the children and their father is significant and important but not beyond that which exists between the mother and the children. The evidence of Ms CC and Ms BB in respect of B’s clear and strong emotional attachment with his mother is evidence of the significance of that relationship.
It could not be said that the mother’s proposal is either ideal or the best possible outcome. B’s distress, whilst triggered by the parties’ conflict, arises primarily because of the breakdown of his parents’ relationship and the consequential effect on the family. The children would each wish that the parties reconcile. That might be considered the ideal outcome, but clearly would represent a barren and forlorn hope.
In Godfrey & Sanders [2007] FamCA 102 Kay J said:-
[36] …Even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
What the children want in terms of a restoration of their family is not able to be achieved. What must be looked at is whether on the separate proposals of the parties the best interests of the children are considered and as a primary consideration a meaningful relationship can be promoted and maintained.
The mother’s proposal provides for the children to spend time with the father for extended periods during the school holidays and, on her case, for at least three long weekends in each year, with the father being at liberty to spend additional time with the children when he is in Melbourne.
There are no issues in respect of compliance and I am satisfied and place significant weight on the mother’s representations of complying with any order and providing the necessary financial support for the children’s travel between Adelaide and Melbourne.
Whilst there has been little evidence in respect of the mother’s finances, given she has been solely responsible for the financial support of the children, there is no reason to doubt her preparedness and ability to comply with orders of the Court to follow through with her proposals.
Whilst the father seeks equal time with the children, he relies upon the evidence of Ms BB to support the minimum period namely, five nights a fortnight.
I have carefully considered the evidence of Ms BB in circumstances where the mother’s proposal is not supported by her.
In considering the evidence given by Ms BB and in particular the weight that should be attributed to that evidence, I have regard to the decision of Andrew & Delaine [2009] FamCAFC 182 where the Full Court considered the treatment and weight to be given to such recommendations:-
[72]It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight. Departure from an expert report in such circumstances requires careful consideration by a trial Judge. However the ultimate decision still must be that of a Trial Judge. The weight to be given to a family report was explained by the Full Court in T & T (1979) FLC 90-713 at 79,819…
In summary, the Full Court considered that there is no magic in a family report and whilst it may inevitably be a valuable and relevant source to assist a Judge in coming to a final conclusion, it must be subservient to a consideration by a Trial Judge of the evidence that is given.
The recommendations of Ms BB support the need to ensure that any orders that are made promote a meaningful relationship between the children and their father. Their father is important to them and they enjoy his company, his closeness and his participation in their sporting and other extra-curricular activities. They also enjoy their time with their mother and have a clear and strongly formed emotional attachment with her.
Ms BB was clearly of the view that the mother’s proposal for relocation would lessen the “quality of connection”. I find that that must inevitably be so. The children would however not be overwhelmed or likely to suffer anxiety, distress or be at risk given the ability of the parties to be child focussed and to keep the children removed from the conflict and their own views, wishes and perceptions.
VIEWS OF THE CHILDREN
The children are clear that they do not wish to relocate to Melbourne out of concern for the diminution of the time that they will spend with their father and the loss of friends, family and familiarity of surroundings.
To her credit, the mother recognises that the children are opposed to the proposal for relocation, but argues that any anxiety is as a result of the fear of the unknown and she has some confidence that she will craft the children’s environment both domestically and at school to the extent that any anxiety will be minimised. She has some confidence in the children’s ability to cope with the change notwithstanding that it will be difficult in the early stages.
The children undertake their studies with diligence and have received good achievement in attaining academic milestones and positive feedback in respect of their behaviour, conduct and social interaction. Ms BB was prepared to accept that their positive achievements at school indicates a level of resilience and an ability to compartmentalise their distress. That is a positive sign for the future.
The views of the children are important, but in this case not determinative. C has greater resilience than B. Both children would prefer to remain in Adelaide and spend, at least as far as C is concerned, a further night in his father’s care. B is more cautious. His view is coloured by his distress at the breakdown of the family rather than necessarily focussing on the mother’s proposal. Neither child understands the damaging effect of the father’s conduct towards the mother.
NATURE OF THE RELATIONSHIP OF THE CHILDREN AND THE PARTIES
There is little dispute between the parties that they each have a strong relationship with the children. There is no evidence to the contrary position. The children feel safe, protected and secure in the care and home of the mother and the father.
The parties have taken all appropriate opportunities to spend time with the children, communicate with them and remain engaged in their academic and extra-curricular activities. The father is particularly active in respect of the children’s sporting endeavours and it is likely that the mother is more suited to the children’s academic support and advancement.
ABILITY OF THE PARTIES TO PARTICIPATE IN MAKING DECISIONS ABOUT MAJOR LONG-TERM ISSUES
Whilst there is little doubt as to the resolve of the parties to be strongly involved in the children’s day to day activities, their ability to engage in major long-term issues is almost entirely determined and limited by the ongoing conflict and dysfunction in the inter-parental relationship. The mother remains fearful of the father. He remains mistrustful of her. He considers that she is not genuine in her evidence concerning family violence and in any event seeks to explain his conduct by placing it in the context of a response to the mother’s provocation.
There is some evidence that email communication (if limited) may be an effective mode of communication. Whilst issues of health and to a lesser extent education are likely to be problematic, other aspects of matters affecting the children are less contentious with the parties navigating a way forward.
ABILITY OF THE PARTIES TO MAINTAIN THE CHILDREN
The financial circumstances of each of the parties was considered only in respect of the financial viability of the mother’s employment prospects in Melbourne. I am satisfied that she is truthful in her assessment of her likely future income if she takes up the position offered in Melbourne and that whilst she will have a range of financial commitments arising from establishing a home in Melbourne and the cost of returning the children to Adelaide to spend time with the father, nonetheless there is no complaint by the father of either her financial ability or her preparedness to support and maintain the children since separation.
The father’s circumstances are considerably more nebulous. His evidence in relation to his employment, income and likely future prospects was evasive. It is difficult to ascertain the nature of the father’s current employment. He was not prepared to give clear evidence as to when financial statements for his business would be prepared and available in order to assess his income and the extent to which reliance could be placed upon his evidence, but at some point he would propose to make a valuable contribution by way of financial support for the children. He currently pays a limited amount of child support and resides in the former matrimonial home in circumstances where he does not pay the mortgage but rather, is allowing the mortgage to be paid by way of a draw down on the mortgage offset account. He also obtains and retains holiday rental income.
The parties have not instituted proceedings for settlement of property. The issue was raised by me during the course of the proceedings, but it appears that neither party had an appetite to seek to resolve property issues. Subject to any other consideration, it would seem that time has now expired and subject to leave to extend time, there is no opportunity now for either party to bring proceedings for property settlement.
Nonetheless, the father recognises that at some point his continued residence within the former matrimonial home would be dependent upon a resolution to the separation of their property interests in the home. At present the parties hold the property as joint tenants and presumably the only remedy available to them is petition and sale.
The Court is entitled to have confidence on the evidence of the mother’s ability and preparedness to maintain the children and to give financial effect to the orders that she promotes. There is little evidence that would support the same contention for the father. The evidence supports the mother’s need for financial security and the beneficial impact on her ability to carry the financial obligation to provide for the children’s support.
THE LIKE EFFECT OF ANY CHANGE IN THE CHILDREN’S CIRCUMSTANCES
At present the children spend significant and substantial time with the father. He seeks to extend his current time of three nights a fortnight to equal time. Ms BB supports an increase of time following a graduated approach to five nights a fortnight. The effect of the mother’s proposal is that the children spend time with the father for half school holidays and at least three long weekends per year and on any other occasion subject to reasonable notice that the father attends in Melbourne and agreeance by the parties.
It is likely that the father would make some considerable effort to spend time with the children in Melbourne. It is even a possibility, although not part of the father’s case, that upon any relocation of the children to Melbourne he would relocate to be near them.
Whilst the change will be significant, I have found that it will not diminish the children’s meaningful relationship with their father. Again, the test is not whether the outcome is ideal, it is whether in all the circumstances the best interests of the children are considered.
FAMILY VIOLENCE
I have made findings that the father perpetrated family violence against the mother. The extent of family violence covered not just physical altercation, but coercive and controlling conduct. There were aspects of family violence that persisted after separation notwithstanding that there was no longer a physical component.
I do not consider that the children are at risk from family violence other than the debilitating effect that it has had on the mother, her fear and mistrust of the father and his view that the mother has concocted or at the very lease exaggerated her allegations.
Each of the parties have sought counselling and therapeutic intervention in an attempt to deal with the conflict and the consequences of family violence. The father’s evidence as to the extent to which he has gained insight into the damaging consequences of his behaviour was not impressive. As recently as his involvement in the family assessment with Ms BB, it was still his position that the mother’s conduct was provocative and was at the very least a contributing factor.
ANY OTHER RELEVANT CONSIDERATION
The mother is clearly attuned to the children and their emotional needs. She has maintained an appropriate balance between her own mistrust and concern of the father and a clear understanding that significant benefit is experienced by the children in having a meaningful relationship with their father. She supports their relationship and there is nothing in the evidence to suggest that she would not do so.
The mother’s proposal is able to be given effect and in that circumstance is reasonably practicable. I find that notwithstanding the proposed relocation, the mother’s proposal will support a relationship between the children and their father.
PARENTAL RESPONSIBILITY
Section 61DA provides for the presumption of equal shared parental responsibility when making parenting orders. Section 61DA(2) provides:-
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)(family violence).
I have made clear findings in respect of family violence and accordingly the presumption of equal shared parental responsibility does not apply.
I am therefore not obliged to consider the provisions of s 65DAA.
I have also made findings as to the inability of the parties to co-parent and I rely upon the evidence of the family consultant that such is the mistrust between the parties that parental responsibility needs to be determined so that areas of contention between the parties in terms of major issues and in particular health, are resolved in a manner that lessen uncertainty and conflict.
The parties have difficulty communicating at a level that would suggest they are likely to reach any consensus on major issues.
Distance is not in and of itself a barrier to shared parental responsibility, but the inability of the parties to communicate without rancour presents as an insurmountable barrier to the parties being able to engage in sensible discussion and consideration of issues affecting the children.
I propose to make orders that would provide for the parties to have shared parental responsibility save and except for the health of the children which shall remain as the sole parental responsibility of the mother. It is possible that the resolution of the litigation may remove some of the more contentious issues. There needs to be certainty as to the children’s health needs.
CONCLUSION
Taking into account the separate proposals of the parties, I consider that the best interests of the children are served by them remaining in the primary care of the mother and that her proposal for relocation, whilst it will result in a lessening of the time that the children will spend with the father, will still maintain a meaningful relationship.
I do not consider that the children will be advantaged by leaving their current school during the 2017 academic year. I am uncertain as to the status of the mother’s current offer of employment. If the position is now no longer available, then there would be no basis for the mother to consider relocation and she and the children would remain in Adelaide.
There is also the possibility that the father may consider relocating to Melbourne to be closer to the children.
I do not bring to account that prospect with any formality other than I propose to make orders that would provide for the children to spend time with the father in Melbourne on the same basis that they should spend time with him in Adelaide if the mother determines that she should not relocate with the children.
In that regard, I consider that notwithstanding the report of Ms BB, a more cautious approach should be adopted and whilst there should be some weight placed on the wishes of the children to spend more time with their father, equally that must be tempered by the evidence in respect of B’s reluctance to remain with his father for the entirety of the weekend preferring to return to his mother’s care on Sunday night. Given the fractured relationship between the parties, the father’s proposal of five nights a fortnight during school term would require a level of communication, cooperation and consensus that is not possible.
Accordingly, I consider that the interests of the children are served by the father’s time being extended to four nights a fortnight if the children remain in Adelaide or if he chooses to relocate to Melbourne.
I certify that the preceding three hundred and eighty-four (384) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 August 2017.
Associate:
Date: 9 August 2017
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