BLYTHE & BLYTHE
[2018] FCCA 66
•8 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLYTHE & BLYTHE | [2018] FCCA 66 |
| Catchwords: FAMILY LAW – Parenting – relocation – best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 69ZT, 65DAC |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Sayer & Radcliffe & Anor [2012] FamCAFC 2096 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR BLYTHE |
| Respondent: | MS BLYTHE |
| File Number: | SYC 5800 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 17, 18, 19 and 23 May 2017 |
| Date of Last Submission: | 23 May 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 8 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Campbell Paton & Taylor |
| Counsel for the Respondent: | Dr Brasch SC |
| Solicitors for the Respondent: | Pearson Emerson Meyer Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Simpson |
| Solicitors for the Independent Children's Lawyer: | Thompson Madden Solicitors |
ORDERS
All previous orders are discharged.
The children X born (omitted) 2009 and Y born (omitted) 2010 shall live with the father.
The father shall have sole parental responsibility for the children.
The children shall spend time with the mother as agreed between the parties, and in the absence of agreement as follows:
(a)During school terms and starting the first Friday of the school term each alternate weekend from Friday after school to 5pm on Sunday or 5pm Monday if Monday is a public holiday or pupil free day;
(b)For all of the end of Term 2 school holidays being from 5.30pm on the last day of school until 5.30pm on the Sunday prior to school returning;
(c)For half of the other school holidays, being for the first half in odd numbered years and the second half in even numbered years; and
(d)At all other times as agreed to between the parties in writing.
The children shall spend time with each parent on special occasions as agreed and failing agreement as follows:
(a)In the event that Mother’s Day falls outside of the children’s time with the mother, the children shall spend time with the mother on the Mother’s Day weekend from after school on Friday until 5pm on Sunday, and the father’s time with the children will be suspended.
(b)In the event that Father’s Day falls outside of the children’s time with the father, the children will spend time with the father on the Father’s Day weekend and the mother’s time with the children will be suspended.
The changeover shall be agreed by the parties and if no agreement is made, changeover shall occur at (omitted) Park, (omitted), New South Wales.
The parents shall have telephone communication including Facetime and Skype with the children as agreed, and failing agreement between 6pm and 6.30pm each Wednesday and Saturday.
Each parent will notify the other of any change in their residential address or contact telephone number 48 hours before such changes occur.
Each parent will inform the other as soon as practically possible, by email and phone, of any emergencies including urgent medical interventions involving the children while the children are in the relevant parent’s care.
Each parent will notify the other of any attendance by the children on any doctor or medical professional as soon as practicable.
Each party is restrained by injunction from doing anything to or discussing in the presence of the children or with any other party the following:
(a)Any dispute between the parties;
(b)Any alleged abused by Mr E involving the children;
(c)Any investigation by FACS, JIRT or any other organisation about the alleged abuse by the said Mr E; and
(d)The children’s preference to live with either parent.
Each party is restrained by injunction from doing anything to or in the presence of the children which is in any way abusive, belittling or demeaning of the other parent or the other parent’s family nor allowing any other person to do so in the presence or hearing of the children.
Within 28 days the father is to reimburse to the mother the sum of $3,300 being 50% of the single expert, Dr L’s, expenses for preparing her report for these proceedings.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Blythe & Blythe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DUBBO |
SYC 5800 of 2015
| MR BLYTHE |
Applicant
And
| MS BLYTHE |
Respondent
REASONS FOR JUDGMENT
Introduction
It is always surprising just how self-focused parents can become in family law litigation. The facts of this case are but a prime example of such narcissistic behaviour.
The children’s best interests, so enshrined in the legislation, have taken second stage to the parents’ own interests in the way these proceedings were conducted. Had the parents thought about the children first, rather than themselves, a resolution to the children’s parenting arrangements could and would have been reached.
Instead, since December 2015, X and Y have had their parents fighting it out in Court about where they should be living. Of course people’s lives after separation move on, but they should not be at the expense of the children of the relationship. All too often this Court sees parents who take the view that they have the right to get on with their own lives and move as they please, rather than thinking about how the little ones whose whole world has fallen apart might be coping with the war zone that they are in the middle of. There is seldom a ceasefire. The children walk in no-man’s land for many years, navigating between hidden mines and barbed wire of their parents’ entrenched positions and conflict. Such have been these children’s lives.
Issues for determination
Both parents want the children to live with them, and are seeking orders to this effect. Time with the other parent is also an issue between the parties, as the distance between their respective homes is prima facie prohibitive of an order for equal time or significant and substantial time.
At the time of final hearing, which occurred in May 2017, the father was living in (omitted), with the children the subject of these proceedings.
Since her relationship with the father ended, the mother has re-married and moved to Sydney. At the time of final hearing, the children were spending weekends and school holidays with the mother.
The parents have a high conflict relationship. They do not like or trust each other, yet they are both seeking an order for equal shared parental responsibility. The Independent Children’s Lawyer, on the other hand, sought an order for the father to have sole parental responsibility.
The evidence in these proceedings was very lengthy, with each of the parents’ trial affidavits containing more than 60 pages of text, plus annexures and exhibits to the affidavits. The Court, in its reasons, has not referred to each single factual assertion made by each of the parties and their witnesses. To do so would have been impossible. The reasons refer to the most pertinent facts and while there might not be specific mention of the entirety of the evidence, it was certainly considered.
Relevant Legal Principles
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of the proceedings.
The children’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[1]
[1] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[1] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[2] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[3] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[4] Consideration does not mean discussion.[5]
[2] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[3] [2009] FamCAFC 92
[4] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[5] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
High Court held in MRR v GR[6] that s 65DAA(1) “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”. The Court held further that s 65DAA(1)(b) “requires a practical assessment of whether equal time parenting is feasible”.
[6] (2010) 240 CLR 461 at 467 [15].
The application of the statutory provisions in the context of relocation cases has been discussed by many authorities. The Full Court in Malcolm & Munro[7] approved what was said by Justice Boland in Morgan & Miles[8], particularly at paragraphs 79 to 81, where her Honour said as follows:
[7] (2011) FLC 93-460
[8] (2007) FLC 93-343
79. In considering whether the child should live with the parent who proposes to relocate a court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
that the child’s best interests remain the paramount but not sole consideration;
that a parent wishing to move does not need to demonstrate “compelling” reasons;
that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
In Sayer & Radcliffe and Anor[9] the Full Court discussed the approach to be taken when a parent is seeking to relocate as follows:
It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)
[9] [2012] Fam CAFC 209 at [47]
In Heaton v Heaton[10] the Court held that what is required in relocation cases is for the Court to determine the children’s best interests by reference to the well-known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents.[11]
[10] (2012) 48 Fam LR 349 (“Heaton”) at [32].
[11] cited with approval in Boyle & Zahur& Anor (No.2) [2017] FamCAFC 263 at [34]
Decisions in respect of children’s best interests and decisions in parenting proceedings are discretionary, with such discretion to be exercised within the legislative framework. It is apposite to be reminded of what the High Court has said in respect of the Court’s discretion in this regard. CDJ v VAJ at 219 [151]; [152] per McHugh, Gummow and Callinan JJ :
parenting cases which “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof”:[12]
The evidence in [parenting] cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.[13]
[12]CDJ v VAJ at 219 [151]; [152] per McHugh, Gummow and Callinan JJ.
[13] Cited with approval in Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263 at [11]
Furthermore, the High Court[14] has relatively recently stated, being a reminder of the discretionary nature of parenting decisions, that[15]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
[14] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]
[15] These were obiter comments in the context of an appeal with considerations different to the present case
Parenting cases are always difficult. Determining where children are to live in circumstances where the parents’ live significant distances apart, is even more difficult. This was one of those difficult cases, and ultimately one which was made all the more difficult because of the children’s strong wishes and emotional ties to the mother.
Findings of Fact
Background
The Applicant father was born on (omitted) 1973.
The Respondent mother was born on (omitted) 1981.
The parties started living together in (omitted) 2002, and they were married on (omitted) 2004.
X was born on (omitted) 2009 and his little sister Y was born on (omitted) 2010.
The parties separated under the one roof on 9 September 2014.
In (omitted) 2015, the mother commenced a relationship with her now husband, Mr S.
While the parents initially both attempted to deal with the mother’s new relationship in a mature manner, it is clear that tensions soon developed between the parties arising primarily, out of the fact that they continued to reside under the one roof in circumstances where a new relationship had been formed by one of the parents. It must have been a difficult situation for the children and the parties.
In July 2015, the parties commenced living in separate residences. From this time, the children were spending flexible time with both parents, usually from Thursday morning to Sunday afternoon with the father, and from Sunday afternoon to Thursday morning with the mother. At the time, X was attending kindergarten at (omitted) School in (omitted) and Y was in day care four days per week.
In (omitted) 2015, the mother commenced living with Mr S.
The parties were divorced in November 2015.
Mother’s Move to Sydney
On 22 November 2015 the father learnt that the mother wanted to relocate with the children to Sydney due to changes to Mr S’s employment. During a conversation with the mother over coffee, the father was told that “We’ll be moving on (omitted) 2016. I’m taking the children with me… We’ll be living in (omitted).” The father told the mother that he did not agree to the children’s residence being relocated.
The father, through his solicitors, then promptly wrote to the mother, through her solicitors, advising her that he did not consent to the children’s residence being relocated to Sydney. This occurred on 24 November 2015.
On 26 November 2015, the mother advised the father that she had booked placements for the children at school in (omitted).
On 4 December 2015, after the parties participated in Family Dispute Resolution, the father commenced proceedings in the Federal Circuit Court at Dubbo, seeking a restraint on the proposed relocation of the children.
On 8 December 2015, the mother commenced proceedings in the Federal Circuit Court at Parramatta seeking both property adjustment orders and parenting orders.
The mother subsequently wrote to the father, through their respective solicitors, advising that she would “obviously” not relocate with the children without the father’s agreement or failing that, a court order. Such correspondence was dated 10 December 2015, and was received by the father the same day.
Also on 10 December 2015, the mother telephoned the father and advised that she was now the ‘sole parent’ of the children and that he was to have no further contact with them. The mother says that in December 2015 “the parenting arrangements… broke down and I retained the children in my care due to my concerns that Mr Blythe was not listening to my concerns about the children…”
Correspondence between the parties’ solicitors followed whereby the father had sought to spend time with the children in accordance with the arrangements previously in place and the mother sought for the father to spend time with the children on the basis that they live with her and she relocate with the children to Sydney. The mother also made some proposals for the children to spend limited time with the father and the paternal family upon the provision of an undertaking, inter alia, that “there will be no arguments or snatching of the children’s (sic) from the mother’s care.” The parties continued to correspond and the mother continued to refuse to allow the children to spend time with the father except for extremely limited periods and in extremely limited circumstances.
In a text message sent to the father on 23 December 2015, the mother wrote as follows:
Mr Blythe,
The ability to change this “difficult time” that everyone is experiencing is with you. Our house is packed and we are moving to Sydney.
…
In her evidence in chief, the mother says that she “came to the decision” that “the best thing for the children would be to move to Sydney with me” on (omitted) 2016. She also says that she did not understand the serious nature of the statement in her lawyer’s letter of 10 December 2015, a proposition the Court does not accept.
The mother and Mr S moved to Sydney on (omitted) 2016 with the children remaining with the maternal grandparents in (omitted) until the mother collected them and returned to Sydney with the children.
Despite the assurances contained in the mother’s letter to the father dated 10 December 2016, on (omitted) 2016, the mother relocated the children’s residence from (omitted) to Sydney. She also took the extra step of enrolling the children in a new school, listing herself and Mr S as a “parent” and the paternal grandmother as an emergency contact. The mother did not provide the father’s details to the school upon enrolling the children. Both the relocation of the children’s residence and the enrolment of the children in the new school were done without the father’s agreement.
The Court finds that the mother had come to a decision to move with the children to Sydney earlier than (omitted) 2016 and that she had deliberately misled the father about her intentions.
At the time of the children’s relocation to Sydney, the children had not spent any time with the father since about 10 December 2015, except that Y saw the father on 19 December 2015 at her end of year concert.
On Y’s first day of kindergarten, the father, paternal grandmother and paternal aunt travelled to Sydney to attend the important event. Two days later, on (omitted) 2016, the father and members of his extended family attended X’s birthday party at (omitted). There was poor behaviour by both parents at the party, albeit not of equal proportions.
Children’s return to (omitted)
On 5 February 2016, the father filed an Amended Initiating Application seeking for the return of the children to (omitted). That application was heard on 15 February 2016, and orders were made on 29 February 2016 providing for the return of the children to (omitted) by 12 noon on 5 March 2016. The orders also provided that if the mother did not return to (omitted) then the children were to spend two weekends out of three with her in Sydney.
In cross-examination, the mother conceded that she did not foresee that the children would be sent back to (omitted) after her unilateral move of their residence to Sydney in early 2016. She further said that the move to Sydney was not a big upheaval for the children, and she did not understand prior to her move that the orders requiring the return of the children to (omitted) would happen. Such evidence from the mother is extraordinary. It is unlikely to have come from any legal advice the mother would have received. Indeed, the mother was on notice of the father’s application restraining her moving the children’s residence and she had notified the father that she would not make such a move without a Court order or the father’s consent. Therefore, if the mother was being truthful about this, then the weight she placed on the importance of the children’s relationship with the father was negligible.
On 5 March 2016, the children returned to live with the father. The handover of the children did not occur in accordance with the orders. Indeed what occurred on that day was a distressing situation for the children and all involved.
Whilst changeover was to occur at midday on 5 March 2016, by 4.15pm that afternoon the father was becoming worried as he had not heard from the mother despite sending her a number of text messages enquiring of her whereabouts and that of the children and he contacted the Police at (omitted) who arranged for (omitted) Police to check on the mother’s residence. At 4.50pm (omitted) Police reported that there was no one at the mother’s residence. The father was contacted at 5.10pm and advised that the children were at the (omitted) Police Station. The mother said that the reason she was five hours late for changeover is because they had to make a lot of stops as the children were crying.
The father entered the Police Station to collect the children and was faced with concerning comments from the maternal grandparents.[16] The father recalls the following exchange taking place:
[16] The maternal grandfather denies such comments, the maternal grandmother was not called as a witness in the proceedings
Mr Blythe you’re a fucking piece of shit! You’re a fucking horrible cunt!
You’re fucking dirt Mr Blythe! How fucking dare you take these children away from their mother! You had one fucking chance to give these children a decent life and you fucking took it off them. You’re a fucking piece of shit.
You’re a fucking cunt Mr Blythe! The sooner you are gone from this fucking earth the better. You’re a fucking piece of shit!.
You two [directed to the paternal grandmother and aunt] aren’t even blood relatives of these children. This is none of your business. You can fuck off out of here!
Ms S you’re a fucking piece of shit! You’re not a fucking mother, you’ve got no fucking idea how to raise a child or a family. You’re a fucking piece of shit…why don’t you just fuck off!
And another thing, we know Mr A Blythe has interfered with Y and he’s molested her. He’s going to gaol.
I’m going to fucking take your house Ms S. I’m going to fucking ruin your lives. We’re going to go to the highest court in the country and we’re going to ruin your fucking lives. You’re father’s a fucking piece of shit Mr Blythe.
The children were present and crying during this exchange.
The father explains that the children remained upset for some time on the drive home from the Police Station and says that Y questioned him saying “Dad, why are you being mean to my mum? Mum said you tricked the court into taking us away from her. Only you can fix this Dad. Mum said only you can fix this.”
The father says that after approximately one hour of arriving home the children were calm and settled and “were their usual self”, he says they were affectionate towards him and his mother and sister who were also present.
Allegations of Sexual Abuse
The mother alleges that, a day before the interim orders were made, but after the interim hearing, that is on 28 February 2016, the maternal grandmother had informed her that Y had made disclosures about the paternal grandfather acting inappropriately towards the child, however, she could not recall the exact words which Y had spoken. The mother’s evidence is that her mother had told her:
“A while ago Y made a comment about Mr A Blythe that wasn’t appropriate, and it’s only just occurred to me because Y hasn’t had any of those problems with her vagina since she has only been in your care.”
The mother says “I did not think much of the comment at the time.”[17]
[17] The mother’s evidence is further that Y had suffered with redness, localised soreness and burning on urination and that she had been seen by a GP in 2014. The mother alleges that between 6/12/15 and 5/3/16 while the children were in her sole care Y did not have any problems. The evidence in the mother’s case is that there was some irritation of Y’s vagina in mid-2016 and in early 2017. The evidence is that the parents both took Y to see a general practitioner and she was prescribed treatment in 2016 and 2017. The mother did not say in her evidence that she raised any concerns with the GP about possible sexual abuse or similar arising as a result of the alleged disclosures when she took the child to see the GP with the same recurring problem in July 2016 or when the father took the child to the GP in February 2017 (after the second alleged disclosure)
The mother further alleges that on 1 March 2016, after the interim orders were made but before the children were handed back to the father, the maternal grandmother had recalled the exact wording of the disclosure as “Poppy plays with my vagina”. The disclosure related to behaviour said to have occurred in 2014. The maternal grandmother was on a cruise and had called the mother to let her know of her recollection. She returned from the cruise on (omitted) 2016, and made a complaint to the Police on 6 March 2016, after the children had been returned to the father’s care. The mother was present during the maternal grandmother’s making of the complaint to the police.
On 23 March 2016, the mother filed an Application in a Case, seeking inter alia, a restraint on the children being left in the sole care of the paternal grandfather.
On 24 March 2016, Y was interviewed by the Police. She did not make any disclosures of sexual abuse. The notes of the interview were annexed to the mother’s affidavit. The Departmental documents[18] record as follows:
[18] Exhibit 3
23/03/2016… Y disclosed ‘Poppy plays with my vagina.’ The children are reported to have regular contact with their paternal grandparents including overnight.
Interview with Y 24/03/2016: Y made no disclosure of sexual abuse.
…30/03/2016 As a result of the JIRT investigation, no harm or risk issues were substantiated. Y is considered to be safe in her current circumstances whilst residing with her father, Mr Blythe.
24/03/2016 interview with father Mr Blythe: informed Mr Blythe of outcome of JIRT investigation. It was suggested to Mr Blythe that in order to ensure that no further allegations or false allegations are made, that his father have someone present with him when he was contact with the children. Mr Blythe was very agreeable to this.
On 7 April 2016 the father provided certain undertakings to the Court, on a without admission basis, in respect of the children being left in the care of the paternal grandfather.
The parties and children were interviewed by Dr L for the purposes of an Expert’s Report on 11 June 2016. That report was dated 15 July 2016 and released on 10 August 2016. Neither child made any disclosures of sexual abuse to the expert.
Dr L records the allegations by the mother during her family report interviews as follows:
[the mother] alleged that Y confided to her mother in 2014 that Mr Blythe’s father had touched her vagina but the allegation only came to light in 2016 when she raised with her mother the observation that Y no longer suffered from irritation to her vaginal area after she had not been in Mr Blythe’s care for period of time. Mr Blythe stated that the investigations by JIRT… have been insufficiently thorough..[19]
[19] Family Report ¶ 43
On 4 December 2016, the mother alleged that Y made further disclosures about the paternal grandfather to the maternal grandmother, and then to her in the presence of the maternal grandmother. Y had apparently told both the mother and the maternal grandmother “Pop smacked my bum and he tickles me all over and tickles my vagina” Y went on to say that “he puts his fingers between my two parts”.
Importantly, the maternal grandmother was not called as a witness in the mother’s case. This matter is addressed further below.
On the same day, 4 December 2016, the mother, Mr S, maternal grandparents and both children attended (omitted) Police Station for the purpose of making a complaint in respect of Y’s alleged disclosures. While the mother was waiting with Y to be interviewed, the rest of the maternal family left the Police Station. During that period, Mr S alleged that X made disclosures of similar abuse of him by the paternal grandfather.
X’s first alleged disclosure of sexual abuse occurred on a street near (omitted) Police Station, when Mr S asked him “Has pop ever tickled you” X apparently replied “Yes around and under my penis, and sometimes it makes me wee.” X was subsequently interviewed by the Police in respect of this disclosure.
The circumstances of such disclosure are very troubling to the Court.
It was not explained by the mother why she deemed it appropriate for X, together with Mr S and the paternal grandparents to all accompany the mother to the police station on the day of the alleged disclosure by Y.
The disclosure by X of being tickled by his paternal grandfather only came after a direct question was asked of the child by Mr S. Why Mr S thought it appropriate to ask X such a question is not the subject of any evidence. Certainly, the question must have been suggestive to X, particularly as he together with the whole of the maternal family, was getting ready together with Y and the mother to go down to the Police Station so that they could “file a report”. The mother has discussions with Y on the way to the Police Station about why she hadn’t told her these things earlier.
Mr S evidence about the disclosure is as follows:
On 4 December 2016 whilst at Ms Blythe’s parents’ house in (omitted) Ms Blythe and Ms K and Y emerged from the bathroom and started walking to the door. I said ‘What’s going on?’ Ms Blythe said to me words to the following effect ‘shut up and get in the car’.
I had no idea what was going on, but followed Ms Blythe to the car. I pulled Ms Blythe aside while Ms K helped put the children in the car and… asked again her (sic) “What’s going on?” Ms Blythe replied “Y has just confessed to me about Mr A Blythe. We need to go straight to the Police station. She said that Mr A Blythe puts his fingers between her two parts and stood up and showed me.
The evidence of the mother is that while she was waiting with Y to be taken into the interview room, Mr S walked back in (the Police Station) with X and said “It’s happened to him too.” The reference “to him too” could only have been a reference to Y allegedly being “tickled” around her private parts by the paternal grandfather, given the question which Mr S asked of X. This means that there must have been more than the discussion between Mr S and the mother than is deposed to by Mr S about what occurred on that day.
On 4 December 2016, the children were then both taken into the interview room together with the mother by Senior Constable (omitted) who proceeded to ask the children questions about their alleged disclosures in front of each other. Even by this stage, given the earlier events of the day, any “disclosures” by the children had been contaminated and could not be reliable. In the Court’s view this was a most inappropriate way to interview children and the Court has significant concerns about the veracity of any of the disclosures which were said to have been made on that day.
Both X and Y were subsequently interviewed on 13 December 2016 at (omitted) JIRT office. This was by now Y’s third police interview. The mother says that she was told “the children should not go to the grandparents home” and “we have concerns in relation to the children having any access to Mr A Blythe”.
Both children participated in electronically recorded interviews. Those electronic recordings were not in evidence.
Instead, the following entries appear in Exhibits 4 and 5:
a)Interview notes with Y dated 13 December 2016:
Q Like – pop –Mr A Blythe
A Tickles a lot. Sometimes he tickles me in the rude part – vagina. He’s funny.
Q Dislike – pop – Mr A Blythe
A Nothing
Q When did poppy tickle you in the rude parts
A Weekend but not last w/end @ school (omitted) school. Still 6yo. This yr – last day of school. Close to my b/day, 5 turning 6. After b/day.
Q Where?
A Out b/droom, lay on floor, on towel, naked, popply tickle me.
Q Where bath?
A At grandma’s house. Granma, aunty Ms L, pop
Q Address?
A No. in (omitted)
Q Tell me everything…
A Got in bath got cleaned then got out
Put towel on floor, lay down, pop tickle me.
Q Anyone in room?
A Only grandma sometime. The she left, had clean towel
Q When pop come in?
A He always watches f’ball, he didn’t come in. Towel in lounge room, then I got pj on. Only pop and me. Towel on floor then he tickles me.
What happened
Towel on floor. I lay down and he tickles me all over. Clothes off fully naked.
What did he use
Fingers and hands, around the outside
Q Anyone in the room?
A No
Q He said s’thing?
A No, he keeps tickling me. I tell him to stop, I ran into the kitchen grandma told him off. He tickles me all around.
Q What part first?
A Two hands in one spot
Q How long in your vagina?
A About 10 seconds, then other parts of body. It’s always night time, always w/end. I wrapped my towel around me, I told grandma, she said Mr A Blythe stop.
Y draws b/room & lounge
Q Bath @ mum’s
A Normal
Q Get dry and dress?
A b/room – loung - @ pop
b/room – bedroom – mum
Q Feel?
A Ticklish
Q After grandma?
A Stay away from pop
Q Has this happened before?
A Since 4 yo. All the same thing, everytime
Q The first time?
A The day after my b/day 4yo
Q What happened?
A I jumped on pop he caught me lay me down and he started tickling me. In b/w lounge room & dinner table
Q Anyone in the room
A Mr Blythe- dad. Ms L, X, grandma
He was tickling me outside
Y indicated that she was tickled on the outside of her u/wear under her skirt
On my back, he used his fingers
I told him to stop
Q Other times?
A I don’t remember.
b)The direction to the child of “tell me everything” must have indicated to the child that she had to disclose further detail and that what she had told the detective was insufficient. She was prompted a number of times to continue with expanding the story, and her statements are contradictory – for example saying that she had her pyjamas on initially but then when prompted further to say what happened she said that she was fully naked. All of this was meant to have been happening after a bath and while the grandmother was in very close vicinity. Of further concern is the question, which does not follow what the child has been saying, of “how long in your vagina?”. The child had not at that point or in the answers she had given before (except for the very first answer) made any reference to her vagina. The first time she was ‘tickled’ was apparently the day after she turned four in the presence of her father and other people. Importantly, Y was not noted to be distressed during the interview and she indicated clearly that there was nothing about her grandfather that she did not like.
c)COPS entry (for X):
In relation to … [paternal grandfather, the subject child] said firstly ‘I think he was ticking me right here’ and pointed towards his genital area and then stated that the [paternal grandfather]… was ‘tickling under the private parts’. When asked, the SC confirmed that he is tickled all over his body and had been tickled so much that ‘he wanted to pee’ however he was clothed at the one. The one occasion that the SC recalled happened around December 2015 or January 2016, at the dining room at the [paternal grandfather’s]… residence in (omitted), NSW.
d)Interview Notes with X dated 13 December 2016:
Nil disclosure on initial prompt
“Did something wrong”
@ Ms S’s house
In 2015 or 2016
Dec 15 or Jan 16
“Think he was tickling me right here”
“Tickling me under the private parts”
T-shirt, pants no shoes
“laying on the floor then Pop tickled me”
“pee my pants”
e)FaCS File Note 13 December 2016:
A: Police station, spoke to police – forgot
Talked abt pop @ Ms S’s house
Q: Something happen in 2015/2016
A: Mr A Blythe was tickling me under the private penis.
He tickled me there I said stop and he didn’t stop
Q: Where?
A: In the dining room @ Ms S’s house.
Rolling on the floor, he tickled me then I rolled away
Q: Wearing
A: Clothes, T shirt pants, no shoes
People were in the kitchen.
Told mum near police station
Apart from the suggestive and inappropriate questioning of the children already mentioned, a further difficulty with what X said to the Police is that he did not spend any time with the paternal grandfather in December 2015 or January 2016, nor was he at the paternal grandmother’s home at that time.
X had only indicated that he was ‘tickled’ albeit near his ‘private parts’. His “disclosure” can be understood as being that he was tickled so much that he wanted to pee, rather than a disclosure of any type of sexual abuse or inappropriate conduct. Likewise, the disclosures made by Y were in the Court’s view, prompted by the questions which she was asked and the circumstances in which she came to be interviewed. Y’s interview with JIRT on 13 December 2016 took over an hour and twenty minutes.
Further interim orders were made by the Court on 15 December 2016, including time over the Christmas school holidays and a restraint on the parties allowing the children to spend overnight time where the paternal grandfather is staying overnight.
In cross-examination, the paternal grandfather was adamant he has never tickled the children. Such evidence on one view, is extraordinary. However, having seen the grandfather in the witness box, while difficult to accept that a grandfather has never tickled his grandchildren, the court accepts such evidence – particularly where the tickling alleged had sexual connotations.
The paternal grandfather’s demeanour in the witness box gave the impression that he was a very conservative and old fashioned man. It may be that he is a person who never displays physical affection and does not play with his grandchildren. He certainly never changed their nappies, never dressed them and never bathed them. All of these things were attended to by the paternal grandmother when the children happened to be staying at the paternal grandparents’ place.
Absence of Evidence from Maternal Grandmother
The ‘rule’ in Jones & Dunkel can be explained as follows[20], as far as relevant to these proceedings:
a)The unexplained failure by a party to give evidence or call witnesses, tender documents or other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case. The inference entitles the trier of fact to more readily draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or all the evidence;
b)The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference;
c)The rule only applies when a party is required to explain or contradict something. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties, there is nothing to answer;
d)The rule cannot be applied where it would not have natural for the party to call the witness or the party might reasonably be expected to call a witness ie. a failure to call evidence which that party was plainly in a position to have given or called; and
e)The evidence of the missing witness must be such as would have elucidated a matter.
[20] See generally J D Heydon, Cross on Evidence, LexisNexis Looseleaf Service [1215] – citations omitted
The absence of any evidence from the maternal grandmother is a matter which gives rise to a Jones v Dunkel inference in the circumstances of this case.
Furthermore, while particular parts of the Evidence Act1995 (Cth) are excluded by virtue of s69ZT, such as for example the hearsay rule, the probity of such evidence is not effected, rather just its admissibility.
Therefore, the mother’s evidence as to what the maternal grandmother said that Y said is not to be excluded by virtue of the hearsay rule, although it is second hand hearsay. The weight to be attached to such evidence however is minimal. It cannot be tested as the person to whom such words were allegedly spoken is not called.
The Court was not asked to make findings of fact in respect of the alleged sexual abuse. However, it is appropriate in the circumstances to set out in detail the evidence relating to such matters, and why the disclosures by the children are of little to no probative value, as the Court has done above.
The Court does not make any findings with respect to such allegations. The Court however, does find that the paternal grandfather does not pose an unacceptable risk of harm to the children.
Other relevant matters
Following the children’s return to the father pursuant to the interim orders of this Court, the children spent time with the mother in accordance with those orders.
In March 2016 the mother took the children to see a general practitioner. The mother said that this was a height, weight and health check, as she wanted to children returned to her in the same condition. She did so to see if they were being properly cared for by the father and in order to have evidence in the proceedings.[21]
[21] Mother’s evidence in cross-examination on 18 May 2017
The father contends, and the Court accepts his evidence, that in late March 2016, and when the children returned from spending time with the mother Y made comments such as:
Mum says this is not our home. Our real home is in Sydney with Mum and Dad.
Mum says that every time she is late you will call the Police on her because you want to get her in trouble.
Things were anything but smooth between the parties following the children’s return to (omitted). The conflict between them escalated and there were occasions for example when the children did not get the opportunity of speaking with the mother on the phone because of what the father perceived was inappropriate conduct by the mother. The extended families became involved. The maternal family complained that the father was being intimidating and that the paternal grandfather was abusive. Mr S applied for a private apprehended violence order against the paternal grandfather.
On 17 July 2016, after the father attended to collect the children from the mother’s home, he was confronted by Mr S who said to the father “You’ve never fucking done anything for those children. All you’ve ever been is a sperm donor”.
It was explained by the mother that Mr S was frustrated with the text messages the father was sending to the mother and that it was a heated conversation. The mother conceded in cross-examination that this was an inappropriate comment because he is the children’s father.
Following the further allegations of sexual abuse by the mother against the paternal grandfather in December 2016, the conflict between the parents and the extended families hit a new high. The mother refused to return the children to the father in accordance with the orders and the father subsequently filed an application for their recovery. That application was resolved on a without admission basis with the children being returned to the father.
The parents continued in their skirmishes in respect of the care each of them provided to the children. For example, the mother formed the opinion that it was not appropriate for the father to apply a cream to Y’s external vaginal area and directed him not to do so.[22] The father complained about the mother cutting X’s hair in a manner which he considered was too short and in breach of a known school rule.
[22] Each of the parties received their own medical advice about Y’s treatment
The mother set up a Go Fund Me account seeking public assistance to pay for her legal fees “to bring my children home.” She stated “I will continue to fight for my children and end their suffering and I believe they will be with me primarily, I will always do what is in their best interest.” The details of the Go Fund Me page were available on the mother’s FaceBook account, an account where she had a number of “friends” who lived in the (omitted) area and who knew the children and the father.
Relevant Considerations
X and Y
The mother described the children in the following manner:
X is a loving, sensitive boy. He is intelligent and quick witted…. X needs and seeks my reassurance and he loves to be hugged… X and I have a very close relationship and enjoy playing games together…
Y is a bright, outgoing, and switched on little girl. She has a beautiful honest nature that always tries to do the right thing in any situation… She has a strong personality and is very competitive. She loves to be hugged, is very attached and clingy to me… Y and I are exceptionally close.
The father describes Y as an “outgoing and confident child most of the time”. He says that following separation of the parents she became “very clingy and sad” and that she would want to sleep with the father of a night.
The father describes X as a child that “has always had some issues with anxiety…he can be very anxious in social settings and struggles when he is not in a routine” however he “seems to thrive in familiar environments”.
The mother makes numerous allegations that the father does not properly care for the children, inclusive for example of complaints relating to the children’s oral hygiene. Despite the mother’s assertions, the Court finds that the father has been able to meet the children’s needs.
The mother’s complaints in some instances arise out of desire for the father to behave in a manner which she deems appropriate and in accordance with her expectations. In other words, the complaints the mother makes often arise as a result of her subjective views. One such complaint is the children co-sleeping with the father, something the mother does not consider to be appropriate. Other complaints for example, relate to the medical care which each of the parents ensures the children receive. The mother is critical of the father in this regard and considers that he does not always seek appropriate medical assistance for the children or otherwise does not follow medical advice. There is no objective evidence however that the father has ever placed the children at risk as a result of such lack of medical assistance/attention the mother alleges on the father’s behalf.
The parties to these proceedings parent in different ways; that much is clear on the evidence. The Court does not find the father’s parenting lacking in any way. Indeed, he is a caring man who does his best for the children.
The mother also is a caring parent who does her best for the children, or at least what she considers to be best for the children. At times, the mother loses sight of what her needs are and what the children’s needs are and confuses the two, such that she either conflates them or places her own needs above those of the children. It may be that the mother is not capable, due to her own mental health issues and vulnerabilities, of separating her own needs from that of the children. Certainly the mother has at times not been able to contain her own feelings in the presence of the children such that they have been detrimentally affected and have taken on the emotional burden of ensuring their mother’s happiness.
In relation to X, the evidence is that he has at times talked about suicide. For example, the Departmental documents[23] record as follows:
19/07/2016 … X (7) mentioned in passing on Sunday … that ‘I’m going to suicide myself’. X clarified by saying that ‘I’m going to kill myself.’ X reportedly had been watching a movie with Robin Williams and was told by his father that Robin Williams had killed himself. X does not have a plan and is currently engaged with a psychologist.
[23] Exhibit 3
The parents have both heard X say such things and both give evidence about these matters. In that context, X has been seeing a counsellor Ms T for a lengthy period of time, a counsellor who has been appraised of what X has said. The evidence does not suggest that X is at an unacceptable risk of harm arising as a result of his ‘threats’ to self-harm. His specific vulnerabilities are certainly known and acknowledged by both of his parents. They are matters which the parents have been able to properly discuss between them, despite the parenting proceedings and the parents’ animosity towards one another.
During the preparation of the Family Report, Dr L spoke to the Deputy Principal, Mr M, at the school where the children attend. Mr M reported that in the school context the children were managing well, and that X’s behaviour, which can be distracting to others, had been present throughout the entirety of X’s school life and there were no significant changes in X’s behaviour since the commencement of 2016 (during this period the children pursuant to the orders of this Court had commenced living with the father in (omitted) and spending time with the mother in Sydney).[24] Mr M also indicated that X’s teacher did not see the child as presenting with any concerns, and that the developmental issues identified in 2014 by Ms T might warrant assessment.
[24] The report referred to “past 6 months”, given that the report is dated 15 July 2016 and that the interviews took place on 11 June 2016, this takes the time frame to the commencement of 2016
Mr M stated that Y is “a bit of a dreamer” but is settled in the school context. Y’s teacher had no concerns about her.
According to Mr M on the first morning after the children’s return from a weekend with the mother, X especially is a tad unsettled, but by the afternoon such behaviour has abated.[25]
[25] Family Report ¶88
The mother in her affidavit raises allegations that the father had been violent towards her during the relationship and also raises allegations that the children receive corporal punishment in the father’s household. Neither party was cross examined in any detail about such allegations although there was some cross examination of both parents and their witnesses in relation to these matters. Ultimately, these are matters of little weight in the Court’s overall assessment.
Views of the Children and Nature of Children’s Relationships
The children have both expressed views that they would prefer to live with the mother. Such views were expressed to Dr L during the interviews for the Family Report.
The parental conflict seems to have had an impact on X and Y. Their views, in the opinion of Dr L, suggest that the children have become inappropriately involved in the adult dispute.
Dr L[26] further opines as follows:
Irrespective of how mature the parties perceive their children to be, neither child has the understanding which is required for their views to be given such significant weight. For the parents, in particular, Mr Blythe, to have taken action on the children’s views, demonstrates poor parental judgement which gives the children age inconsistent amount of power that they are incapable of handing. This is extremely damaging to the children and needs to stop. It also leaves the children with a dreadful sense of failure if their expressed views in support of their mother do not achieve their desired outcome… It will be detrimental if the children do not hear a consistent message from both parents i.e. that they are loved by both parents and that this is not their decision to make. Collapsing time, giving children the power to make such decisions about their living arrangements could potentially genaralize to other issues including whether they see their father and spend time with him.
[26] Family Report ¶ 94
Both children have reported to Dr L that their mother feels sad that they do not live with her. Y said that she feels sad when she sees her mother feeling sad and she thought she would “fix Mum feeling sad if I could live with her.” X nominated his mother as being sad about him and his sister as she has been crying a lot.
Dr L was of the opinion that such disclosures by the children indicate that they:
“feel responsible for the emotional wellbeing of their mother, which includes assuaging her distress over not having them in her care. It is an inappropriate elevation of a child into an adult role to be ploughing resources into being psychologically responsible for their parents’ wellbeing.”
Both children have close relationships with their parents and their extended families.
When the children were observed with each of the parents, but not under “the gaze of the other parent” their behaviour according to Dr L became noticeably more relaxed and natural.
The children have been calling Mr S “Dad” and the father “Mr Blythe”.
Dr L, in respect of the children’s relationships, opines as follows[27]:
[27] Family Report ¶ 96, 98, 100
… It is concerning that Mr S is allowing himself to be wooed into the key “Dad” role in the minds of the children and is not setting firmer boundaries around his role versus that of Mr Blythe with the children. Helping children define the roles of parents and step parents needs to be modelled by the adults.
…
There seemed to be considerable incongruence between the disclosure of the children and the observations of their interactions with their father and paternal family in the presence of their mother and in her absence…. The children nominated their mother as the parent who is more responsive to their needs, however, they also both perceive her to be the more emotionally needy and fragile parent.
…
The observations of the children interacting with each parent as the day of this assessment progressed was puzzling and concerning… There seemed to be a palpable level of anxiety in Ms Blythe’s demeanor and an expressed fear on her behalf which she claimed was shared by the children, that Mr Blythe would take the children and not return them. The interactions that were observed between the children and their mother in the presence of their father suggested they were anxiously preoccupied with acceptance and recognition from her and that they were caught in a loyalty struggle.
The facts do not lend themselves to a finding that the father has ever withheld the children. Certainly there was some uncertainty about what time the children would spend with the mother over Easter in 2016 as this was not the subject of any specific orders, but there was no allegation in the mother’s case that the father ever unilaterally removed the children from the mother’s care or withheld them from her when they were to be with the mother (whether pursuant to an order or an agreement between the parties).
Dr L is of the view that the mother’s fear that the father will withhold the children “may be a projection of Ms Blythe’s own behaviour at the end of 2015.” The Court accepts such an opinion. At that time the mother did make some unilateral decisions in respect of the children’s residence and did not permit the children to spend time with the father pursuant to the arrangements which had been in place at the time.
Dr L was of the opinion that if the children remained exposed to their parents’ conflict in the way they have been to date exposed, it could result in the alienation of the children from one or the other of their parents.
Parental Attitudes
Both parents have at times exhibited poor attitudes towards the other parent. However, it is the Court’s finding that it is the mother who has been the primary perpetrator of such behaviour. Examples of the mother’s attitude towards the father and parenting in general are to be found in the plethora of correspondence between the parties:
a)Letter dated 26 November 2015:
…
We are further instructed that Ms Blythe has made contact with (omitted) Primary School in (omitted) and has booked placements for both X and Y to commence school at the beginning of the 2016 school year.
If you client desires he can make his own enquiries of the school and look it up on the internet…[28]
[28] Exhibit 7, page 36
b)Based on this correspondence, in the Court’s view the mother deemed it appropriate to unilaterally enrol the children into school without any prior consultation with the father, and certainly in the knowledge that he did not consent to the children’s residence being relocated to Sydney. To suggest to the father that he could make his own enquiries if he so desired, was a display of the mother’s self-righteous attitude.
c)Letter dated 10 December 2015:
Obviously, our client will not relocate with the children without the father’s agreement, or failing that, a Court order.
… we ask that your client keep an open mind to the possible advantages of the children living and going to school in Sydney, while still maintaining a substantial and significate (sic) relationship with their father and his extended family…
It would be a great benefit for the parties to reach agreement concerning relocation rather than going through the expense and uncertainty for the next 12 to 18 months.[29]
[29] Exhibit 7, page 39-40
d)It is the Court’s view that based on this correspondence, the mother considered that her relocation with the children was just a matter of time, and that the father should agree to it rather than delay the inevitable at a cost to the parties. If the mother was otherwise minded (that is, she was agreeable to staying in (omitted)), she would not have been saying to the father that they should reach agreement concerning relocation.
e)Letter dated 15 December 2015:
…
Upon our instructions the children do not spend a lot of time with their father while spending time with him. Typically the children are left with their paternal grandparents and at other times are separated… Typically Y spends only one night a week with her father an X one to two nights per week.
… Ms Blythe considers that separating the children is less than ideal and the constant change of routine, boundaries separation, bed times, times spent on the play station differing in each of the hour homes the children have been currently and regularly spending time with other family members instead of the father…Children need a set routine and boundaries to provide them with stability and consistency which will allow them to develop to their full potential.
What appears to be happening is the father is unilaterally making major decisions concerning where the children live while they are in his care. This is a decision which should be made jointly. We understand Ms Blythe has on numerous occasions asked Mr Blythe if he is unable to care for the children himself while they are in his care he return them to her care.
…
In the meantime and pending further orders, any time the children are to spend time with their father for special events we require his undertaking that the children will be in his direct care and returned by agreement….[30]
f)In relation to that correspondence, the following is of particular note:
i)At the time there were no orders, and the children had been spending time with their parents on an almost shared care basis.
ii)The mother deemed it appropriate to tell the father how to parent, and considered that her style of parenting was superior to that of the father. This is evident from the content and tone of the letter referred to above.
iii)Why the mother thought it appropriate to restrict the children’s time with the father because in her view they weren’t spending enough time with the father but were rather with their grandparents, is not explained. The mother’s proposal was predicated upon a move of the children to (omitted).
iv)Given that the mother had made a unilateral decision to enrol the children in a school in Sydney, it is incredulous for her to insist that the decision about what the children do while they are with the father to be decisions which ought to be made jointly.
v)In reality, the mother was seeking to be the person who ultimately made the call about where and how the children would be living and conducting their day to day lives. This much is evident about her insistence on routine and the suggestion that the children would not reach their full potential without it. One can only infer that the routine which she thought appropriate was the routine which she had established for the children in her home.
[30] Exhibit 7, page 49
g)Text message to the father on 23 December 2015:
I have been nothing but fair & reasonable with my letters allowing liberal contact and very short notice required by you to see the children.
…
In order for you to spend time with the children over Christmas I would like an agreement to the children relocating with me to Sydney way of parenting plan… and an undertaking from you that the children will be returned to me on Boxing Day.
h)The mother clearly took the view that it was her decision to make what time the children would spend with the father and to allow it, just like it was her decision to move the children’s residence to Sydney. It was either her way or no way.
i)Text message from mother to the father on 24 December 2015:
As you have left it this late to reply to my message and once again you are refusing mediation I am now blocking your number from my phone.
j)The father did not leave it ‘late’ to reply, it was a timeframe imposed by the mother as to when he ought to respond to her demands. It is clear that the mother was of the view that the father was at fault and that such behaviour deserved punishment by way of the father’s number being blocked. It was Christmas and the children had not seen their father for some time, in circumstances where there had been liberal time with both parents just shortly prior to the mother’s unilateral reduction of the father’s time with the children. It was not a reasonable action for the mother to take. Indeed, it showed a lack of capacity to meet the children’s emotional needs and also showed her incapacity to put the children’s needs first ahead of her own.
Despite the children spending almost no time with the father between early December 2015 and the father’s interim hearing, the mother says in her affidavit that she “facilitated Mr Blythe and his family spending… time with the children”. Such facilitation comprised of the father and his family attending Y’s end of year concert on (omitted) 2015, the mother inviting the father to meet the children and then go to a park in (omitted) on (omitted) 2016, inviting the father to attend Y’s first day of kindergarten, inviting the father to attend at a (omitted) with the children, the mother’s family and Mr S after school on Y’s first day of school, inviting the father to attend X’s birthday party and having the children call their grandmother on her birthday. Even after lengthy cross-examination during the final hearing, the Court does not find that the mother has in any meaningful way accepted that her unilateral actions were damaging to the children and damaging to their relationship with the father.
The mother has consistently referred to the father as “your father” when speaking to the children about the father. She has said that Y feels that Mr Blythe took her away from the mother and that is why Y is angry with the father. In cross-examination the mother conceded that this is the way that she feels but was not able to concede that the children may have been saying things because they were reflecting the mother.
Having considered all of the relevant facts, the Court finds that the mother is the parent least likely to be able to facilitate and encourage and close and continuing relationship between the children and the other parent, and that her capacity to promote that relationship has to date been compromised. Y’s comments that these proceedings will be going to the ‘biggest/highest Court in the land’ are very concerning, and indicate a high level of her involvement in the parental conflict.
The fact that Y said to Dr L that it would make her happy to “live with Mum and Dad” and “Mr Blythe could visit any day he wants” being an option that would make her mother happy because “every day she is sad. Even today ‘cos she does not get to see us so much” shows an unreasonable and inappropriate level of involvement by Y in the parenting dispute. It also supports a finding that the mother is relying upon Y for emotional support in the conflict between the parents. It is not appropriate for Y to be such a pillar for the mother.
Advantages and Disadvantages of the Competing Proposals
At the time of final hearing, both children were attending primary school in (omitted). While they had previously been enrolled and attended a school in Sydney, this was only for a few weeks at the beginning of the 2016 school year.
The children, if they were to remain living in (omitted), would remain living with the father with whom they have been living since February 2016. There would be a continuity for the children in the home and school environment which is familiar to them and where they have formed a circle of friends.[31]
[31] Family Report ¶109
It is without a doubt that an order for the children to live with the mother would prima facie be an order which accords with the children’s strongly expressed views. Those views have already been the subject of comment earlier in these reasons. To make orders in accordance with the children’s views is a considerable danger for the children’s emotional well-being in the long term. On the one hand if the orders are not in line with their views it will leave the children with a “dreadful sense of failure”.[32] On the other hand, if the orders are in line with their views, it will give the children a sense of power that they ought not have about making important long-term decisions concerning their lives.[33]
[32] Family Report ¶ 94
[33] Family Report ¶ 94
If the children do not live with the mother, given their expressions of the mother’s sadness and consequently, the feelings of responsibility which each of them must have for their mother’s happiness, is to place a great a burden on these children. Whether that burden is in the long run a long or short term risk (or not a risk at all) and what the consequences of that risk are on the children is not the subject of any specific evidence.
It is the Court’s finding that there is a risk of harm to the children if their expressed views are acceded to by the Court, which is in all likelihood going to be further accentuated by their sense of responsibility for their mother’s emotional well-being. While there is such a risk there is no evidence to suggest that it is an unacceptable risk of harm.
It is further the Court’s finding that there is likewise a risk of harm to the children if their expressed views are not acceded to by the Court. Once again, there is no evidence to suggest that such a risk is an unacceptable risk of harm.
Given the father’s relationship with the children and his demonstrated ability to meet the children’s needs, the Court finds that the father will be better able to deal with any fallout from orders being made against the children’s wishes than the mother would from any fallout from the orders being made in accordance with the children’s wishes. It is not the children’s decision to make and they should not feel responsible for any decision which has been made.
If the children were to live with the father in (omitted) and the mother was to remain living in the Sydney metropolitan area, then as has already been the case, there would be less opportunity for the mother to be involved in the children’s day to day activities; indeed such opportunity would be seriously curtailed. However, it would offer the father the opportunity of doing so.
A relocation of the children’s residence to Sydney would also be a significant loss in the continuity of the children’s regular time with the father and the paternal extended family. Dr L is of the opinion that this is likely to have an enormous impact on those relationships, an opinion which the Court accepts. As Dr L further states, relocation is likely to seriously diminish the social capital that the father has to offer. His capacity to be involved in the children’s daily activities will be seriously curtailed.
There is a real practical difficulty and expense of the children spending time with the parent with whom they will not be living. This is because of the physical distance between the parents’ residences and also because of the parties’ other commitments which will make changeover and travel at times difficult.
To date the mother has done all of the driving to pick the children up and return them to (omitted) on days they are spending time with her. This is a significant financial and physical burden on the mother and one which she cannot maintain going into the future.
Mother’s Feelings
In submissions, the learned Queen’s Counsel on behalf of the mother, robustly submitted that the Court ought to consider, in its determination of the relevant matters, the authorities dealing with so called ‘my happiness’ cases. It was submitted on behalf of the mother that the Court should consider the benefit to the children if the mother is emotionally available for them, something which she will be if the children live with her in Sydney. It was submitted further that the mother’s case was not just about her happiness, but that the mother also wanted the children to be part of her life and share in her happiness.
The Court accepts the evidence in the mother’s case that she is unhappy when the children are not with her and that she has been very unhappy that the children have not been living with her since March 2016. The Court also accepts the mother’s evidence that she is not prepared to move back to (omitted) and that she considers that she will be better off mentally if she remains living in Sydney.
The Court also notes that there is no expert evidence in respect of the long term psychological impact, if any, on the children and the mother, of her unhappy feelings.
The mother can of course seek professional assistance to help her deal with her unhappy feelings. It is hoped that she will do so, particularly in light of the findings made in respect of the emotional burdens placed on the children and also in light of the orders which the Court ultimately makes.
The Practicalities
The parents live a fair distance apart, with such distance being prohibitive of the children spending regular time during the weekdays with each of the parents. The reality of the situation is that no matter which parent these children live with, they will only spend limited time with the other parent. As they grow, the burden of the travel required by them to spend regular time with the non-resident parent will no doubt grow, and may result in one or both of them refusing to engage in such travel to the detriment of their relationship with the parent with whom they do not live.
Spending two weekends out of three travelling between Sydney and (omitted) is in the Court’s view, not in the children’s best interest, not only because of the burden of travel but also because of the inherent inability of the children to engage in any meaningful weekend activities in (omitted) where they will be living pursuant to these orders.
An order requiring the children to travel every second weekend is likewise a heavy burden on them but must be balanced against the benefit to them of having a meaningful relationship with the mother.
The maternal grandparents remain living in (omitted). However, given the difficulties in the mother’s relationship with her mother and her demonstrated reluctance to return to (omitted) (even if this would have the added benefit for the children of spending additional time with her), the Court finds that an order as sought by the father, for the children to spend time with the mother on weekends in (omitted) not to be reasonably practicable nor appropriate.
It is also the Court’s view that the children should spend extra time with the mother during school holidays. This will go a little way to alleviating the lack of ability for them to spend time with the mother on a more frequent basis in circumstances where they will be living with the father in (omitted).
Further Proceedings
In respect of the likelihood of further proceedings, while the mother has not appealed or sought to overturn the interim decision and she patiently waited for the final hearing and has been waiting for this judgment to be published, the Court anticipates that the mother will not necessarily sit still after the making of these orders.
Her attitude, for example, as displayed in her text message to the father of 23 December 2015 that “please understand that their (sic) will be at least 10years (sic) of co-parenting & 10years (sic) of court attendances to change anything the judge decides upon. This money is surely better spent on the children, than court costs” does not bode well for there being no further proceedings.
However, the fact that the mother may continue with the parenting litigation is not a reason of itself to make orders which are otherwise not in the children’s best interests. While the Court certainly accepts that having certainty for these children is something which is positive and that any further litigation will not be in the children’s best interests, that is but one of the factors which the Court takes into consideration in determining the children’s best interests.
Parental Responsibility
Both parents submitted to the Court that an appropriate order for parental responsibility was for there to be an order for equal shared parental responsibility. As noted earlier, the Independent Children’s Lawyer did not make that submission, but rather that an order for the father to have sole parental responsibility is an appropriate order.
There is of course a presumption of equal shared parental responsibility enshrined in the legislation. In the circumstances of this case however, the Court finds that the presumption has been rebutted given the poor relationship between the parents and their inability to co-operatively parent X and Y. Furthermore, the Court is mindful of the mandatory requirements in s65DAC and given the findings about the lack of cooperation and the high parental conflict, it is difficult to see how the parents could or would comply with such requirements.[34]
[34] See also Boyle & Zahur at [22]
In all of the circumstances of this case, it is appropriate for the parent with whom the children live to have sole parental responsibility for the making of long term decisions in relation to the children.
In Conclusion
In making these orders, there is a risk that they may be seen as punishing bad parental behaviour. While the Court finds that the mother has not at all times acted in the children’s best interest, and has at times placed her own needs above those of the children, it is the children’s best interests that are of paramount consideration to the Court.
The children clearly love both of their parents and their extended families. They have strong ties with all of the adults in their lives. There has been significant turmoil and disruption to those relationships since the parties’ separation, and while one might have hoped for the conflict to ease over time, it had in fact only intensified.
Ideally, these children would get to benefit from a co-operative relationship between their parents, and frequent and substantial, if not equal time, with each of the parents. But this is simply not possible given the physical distances between the parties’ residences.
More than a year after living with their father, both children have expressed strong feelings about missing their mother. It may be that they will miss their father just as much if they were to live with the mother on a full time basis.
The Court does not have a crystal ball, it cannot know with any level of certainty how the parties will behave in the future. If past behaviour is any indicator of the parties’ future behaviour, it does not bode well for the children. However, it may be that the parents have learnt from their mistakes in the past.
Justice Gaudron said famously[35] in U v U at 248–9:
36 . Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
37 . It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.
[35] For example in Jurchenko & Foster (2014) FLC 93-598 (“Jurchenko”) the Court quoted what was said by Gaudron J in U v U,[35] observing that, although “Gaudron J was in the minority as to the outcome”, her Honour’s observations were “not only a perceptive statement of the forensic realities but also an accurate statement of the required approach to cases where one parent wishes to ‘relocate’” at 79,421, [127]
However, the reality is that maternity and paternity will always have an impact upon the wishes and mobility of parents, including their moral obligations which sometimes last a lifetime and are restrictive on personal choice and movement of the parent.[36]
[36] Gummow & Callinan JJ in U v U [2002] HCA 36 at [92] cited with approval in Lansa & Clovelly [2010] FamCA 80
The facts of this case are very different to those which were before the High Court in U v U.
The Court has carefully weighed up the parties’ competing proposals in coming to its determination, and what has swayed the balance in favour of the orders which the father seeks is ultimately the mother’s capacity (or rather lack of) to foster a relationship between the children and the father. The Court simply does not accept that the mother will do so, and if the children were to live with the mother with the tyranny of distance it is highly likely that the children’s relationship with the father would peter out over time.
Costs
The mother seeks an order for the father to pay half the cost of the report of Dr L. While it was the mother who sought such an expert report, the report was relied upon by both parties. It was an important part of the evidence in these proceedings and the cost of the report should be shared equally between the parents.
The Independent Children’s Lawyer has sought that her costs be paid by the parties equally. At present, such costs are being paid by Legal Aid New South Wales. Both parents are privately funded litigants. No submissions were made on behalf of the Independent Children’s Lawyer in relation to her costs. In proceedings under the Family Law Act 1975 each of the parties is to bear his or her own costs. There was nothing said to the Court which warranted a departure from that position. A costs order will therefore not be made for the parents to pay the Independent Children’s Lawyers’ costs.
For all of those reasons, orders as set out at the forefront of these Reasons are made.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 8 February 2018
Key Legal Topics
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Family Law
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Civil Procedure
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Injunction
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Expert Evidence
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Costs
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Remedies
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