BOYLE & ZAHUR

[2017] FamCA 295

FAMILY COURT OF AUSTRALIA

BOYLE & ZAHUR [2017] FamCA 295

FAMILY LAW – CHILDREN- Application for international relocation -  Where application for relocation is predicated on the parties cooperating -  Where on the evidence the scope for cooperation is minimal  -  Where international relocation is found likely to be detrimental to a meaningful relationship with both parents - Where application for relocation is dismissed.

Family Law Act 1975 (Cth) – ss 60CC, 65DAA

Taylor & Barker (2007) FLC ¶93-345

APPLICANT: Ms Boyle

RESPONDENT: Mr Zahur

INDEPENDENT CHILDREN’S LAWYER: Claire Naidu & Co

FILE NUMBER: CAC 429 of 2014

DATE DELIVERED: 11 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 March - 23 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Macpherson

SOLICITOR FOR THE APPLICANT: Gabbedy Milson Lee

SOLICITOR FOR THE RESPONDENT: Mr Zahur self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Naidu

Orders

1. The mother, Ms Boyle, born … 1973, (the mother) and the father, Mr Zahur, born … 1969, (the father) have equal shared parental responsibility for the children, B, born … 2005, and C, born … 2006, (the children).

2. The children live with the mother.

3. The children spend time with the father as follows:

   (a)Every alternate weekend from after school or 3pm on Friday until 5pm on Sunday;

   (b)Every Wednesday from after school or 3pm until the commencement of school on Thursday; and

   (c)At any other times as agreed between the parties.

4. Unless otherwise agreed, for the ACT school term holidays the children will spend time with the mother and the father as follows:

   (a)       For the Term 1 and Term 2 school holiday periods:

   (i)For the first half with the mother in even numbered years;

   (ii)For the second half with the father in even numbered years;

   (iii)For the first half with the father in odd numbered years; and

   (iv)For the second half with the mother in odd numbered years.

   (b)       For the Term 3 school holiday period:

   (i)For the first half with the mother; and

   (ii)For the second half with the father.

5. Unless otherwise agreed, for the Christmas school holiday period the children will spend time with the mother and the father as follows:

   (a)From the conclusion of school on the last day of Term 4 until 3pm on Christmas Day, 25 December, with the mother;

   (b)From 3pm on Christmas Day, 25 December, until 3pm on 16 January with the father, save for the operation of Order 6 herein; and

   (c)From 3pm on 16 January until the commencement of school in Term 1 with the mother.

6. Unless otherwise agreed, the children will spend time with the mother from 3pm on New Year’s Eve until 10am on New Year’s Day in even numbered years, commencing on 31 December 2018.

7. Unless otherwise agreed, for the Easter long weekend the children will spend time with the mother and the father every year as follows:

   (a)From 9am on Good Friday until 10am Easter Saturday with the mother;

   (b)From 10am Easter Saturday until 9am Easter Sunday with the father;

   (c)From 9am Easter Sunday until 10am Easter Monday with the mother; and

   (d)       From 10am Easter Monday until 5pm Easter Monday with the father.

8. Unless otherwise agreed, the children will spend time with the father on the following special occasions:

   (a)       If a religious holy day falls on a school day, from 3pm until 9pm;

   (b)       If a religious holy day falls on a weekend, from 3pm Friday until 5pm Sunday; and

   (c)       On the eighth day of religious festivities, from 5pm until 9:30pm.

9. For Father’s Day the children will spend time with the father from 10am until 5pm, if not already spending time with the father.

10. For Mother’s Day the children will spend time with the mother from 10am until 5pm, if not already spending time with the mother.

11. For the children’s birthdays, the parent with whom the children are spending time with will make the children available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parties, but failing agreement, from 4pm until 6pm.

12. Unless otherwise agreed, for the Father’s birthday the children will spend time with the father:

    (a)       From 3pm until 6pm if the father’s birthday falls on a school day; and

    (b)From 10am until 5pm if the father’s birthday falls on a weekend or holiday

    if not already spending time with the father.

13. Unless otherwise agreed, for the mother’s birthday the children will spend time with the mother:

    (a)       From 3pm until 6pm if the mother’s birthday falls on a school day; and

    (b)From 10am until 5pm if the mother’s birthday falls on a weekend or holiday

    if not already spending time with the mother.

14. Unless otherwise agreed, or unless the collection or drop off coincides with school time, the father will collect the children from the mother’s residence at the commencement of his time with the children, and the mother will collect the children from the father’s residence at the conclusion of his time with the children.

15. The parents are permitted to attend any school attended by the children and to attend any school event occasion which parents are invited to.

16. The parents will advise each other as soon as possible by the best available means in the event of the following occurring:

    (a)Either child being injured or falling serious ill;

    (b)Either child requiring urgent medical treatment by a doctor or ambulance crew; or

    (c)Either child being admitted to hospital.

17. The parents are permitted to attend any special medical appointments for the children and the parents will advise each other of any such appointments not less than three days prior to any such appointment.

18. The parents are at liberty to obtain all medical records and to consult with the children’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.

19. The parents will not denigrate each other or the other parent’s family in the presence of the children nor allow another person to do so.

BY CONSENT IT IS ORDERED THAT

1. The mother is permitted to remove the children, B, born … 2005, and C, born … 2006, from the Commonwealth of Australia on 12 May 2017 for a period of six weeks provided that she returns the children to Australia by the end of that six week period.

2. To facilitate the operation of the above order the time that the father spends with the children is suspended for the period that they are removed from the Commonwealth of Australia.

3. The mother is permitted to remove the children B, born … 2005, and C, born … 2006 from the Commonwealth of Australia each calendar year on up to two occasions for a period of up to six weeks in aggregate provided that on each occasion she returns the children to Australia at the end of the period and, unless otherwise agreed, that the periods occur within the children’s school holidays.

4. To facilitate the operation of the above order that the time that the father spends with the children is suspended for the period that they are removed from the Commonwealth of Australia.

IT IS FURTHER ORDERED THAT

1. The Application for Costs filed by the mother on 10 May 2017 is adjourned to 2:15pm on 18 August 2017.

IT IS NOTED THAT

1. The solicitor for the mother will promptly advise the Court and the other parties in the event that the mother does not wish to proceed with that application.

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 Boyle & Zahur 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 CANBERRA

FILE NUMBER: CAC 429 of 2014

Ms Boyle

Applicant

And

Mr Zahur

Respondent

REASONS FOR JUDGMENT

1. This case involves the parenting arrangements for B (12 years old) and C (11 years old) whose parents separated in August of 2013.  They entered into final orders on 23 May 2014.  At the moment they live primarily with their mother but are scheduled to have regular time with their father each second weekend and overnight each Wednesday.

2. The mother has formed a relationship with Mr D, who has been posted to European Country H for about four years, starting earlier this year.  She would like to move with the girls to live with him in Country H.  She is not prepared to move without them. 

3. The father wants the girls to remain in Canberra and to spend week about time between his home and the mother’s home.  While the father has indicated that there is some possibility of him moving to Country H, should he be able to find work, noting that he has a European Country I passport and shortly the fruit of an inheritance, there can be no confidence that there are real prospects of such a relocation on his part.

4. While there are significant communication problems between the parents they agree that they should equally share parental responsibility.  Pursuant to the current orders they already equally share parental responsibility.

5. Prior to the commencement of the trial they, along with the Independent Children’s Lawyer, prepared a consolidated list adding together what each saw as the factual issues for the determination of their cases.  These are as follows:

   (1)The extent of the respondent’s financial support of the children;

   (2)Whether the applicant has psychiatric issues as alleged by the respondent and if so, the likely impact on:

   A.the welfare of the children; and

   B.compliance with Court orders.

   (4)Whether the applicant undermines the respondent’s relationship with the children as alleged by the respondent;

   (5)Whether the applicant involves the children in parenting disputes;

   (6)Whether the applicant has repeatedly threatened to take the children away from the respondent to prevent him from ever seeing the children;

   (7)Whether the children are reluctant to see their father and if so, the reasons;

   (8)The likely extent of harm to the relationship between the respondent and the children if the proposed relocation takes place;

   (9)What benefit (if any) will the children receive by relocating to Country H and whether such benefit outweighs the likely harm to their relationship with the respondent;

   (10)Whether the applicant is likely to comply with any contact regime if permitted to relocate to Country H; and

   (11)Whether the respondent and the children are likely to return to Australia at the conclusion of the proposed relocation.

6. Amongst these issues the parties agreed that issues 7 and 8 are the most important in considering how to resolve this matter. 

7. These consolidated issues are directed to the consideration of the best interests of B and C as seen against the background of the objects contained in the Family Law Act 1975, in particular those directed to:

   ·Maximising the meaningful involvement of each of the parents in B and C’s lives to the extent that is consistent with their best interests;

   ·Ensuring that B and C receive adequate and proper parenting that will help them to achieve their full potential; and

   ·Ensuring that each of the parents fulfils their duties and meets their responsibilities for the care, welfare and development of B and C.

8. These factual issues also reflect the considerations set out in s 60CC of the Family Law Act 1975, in particular the benefit of a meaningful relationship with each of the parents and the manner in which a move to Country H might impact upon that.  The factual issues also consider the views that the girls hold about what their future parenting arrangements should be, again centring upon the question of a move to Country H.  The factual issues also deal with the nature of the relationships between the girls and each of their parents (and to a limited extent to Mr D and the mother's family in Country I).  The issues deal with the likely effect of a change along with the difficulties that would be caused by such a change if the girls were to move to Country H.  In the context of the proposed move the factual issues touch upon the capacity of each of the parents to provide emotionally for the girls, in particular to support the other parent’s relationship with the girls and to so fulfil the responsibilities of parenthood.  Subsumed within the issue of the benefits or detriments of a move to Country H are issues of the particular characteristics of the girls and, in particular, how the religious and cultural background from their father might be facilitated if they were to move.  The issues deal with the extent to which the father has maintained or failed to maintain the girls.   

9. Although not mentioned within the consolidated list of issues, there was some evidence led in relation to the issue of family violence. 

10. I propose to deal with the evidence in the case primarily in the light of the factual issues identified by the parties as being important to the resolution of the case, as understood in the light of the objects and the identified s 60CC considerations. They will be dealt with in the order set out above rather than in order of their importance.

Issue 1 - The extent of the respondent’s financial support of the children

1. The respondent is currently the subject of a nil assessment by the Child Support Agency, his employment having ended at the end of October 2016.  He is in arrears for previously accumulated child support liabilities.  Those arrears are approximately $400 and he has entered into an arrangement to pay those off at $25 per week.  His evidence was that he has commenced casual work pending finding more suitable employment.  He has not yet advised the Child Support Agency of this, although he stated he intends to do so shortly.  He has also provided evidence that, either in addition to any child support liability or while he did not have a child support liability, he has paid for a number of items for the support of the girls (See tab 5 of Exhibit RZ1 to the husband’s trial affidavit).

2. His provision financially for the girls has been the source of friction between the parties.  The mother has been highly critical of the amount of support that he has offered, for example in relation to items such as school expenses, over and above child support liabilities.  She has been critical as to the father having periods of unemployment, undermining his financial support for the girls. 

3. The father has recently obtained an inheritance and expects to obtain the fruit of a further inheritance once he is able to sell some property in Asia.  Despite the receipt of a lump sum as part of his inheritance he did not pay out the arrears of child support.  The mother has some legitimate criticism to make of the father in terms of the level of support that he has given to the girls.  For example, despite the items that he lists in his affidavit as provided for the support of the girls, in circumstances where he was paying no child support the inheritance was not used to make good the arrears, nor to make up for time when he was the subject of a nil assessment.  Other than this I am unable to conclude that the father has been inadequate in his financial support of the girls. 

4. However, it can readily be concluded, in particular when taking into account the content of the text messages between the mother and the father as annexed to the father’s affidavit, that the degree of financial support remains a significant matter to the mother.  Her counsel indicated that the use to be put to the question of financial support was as to its significance in relation to the mother’s proposed move to Country H.  On moving to Country H she expects to be in a position where her housing would be provided, where she will be able to seek employment and where she will have financial support from her partner Mr D. 

5. In those circumstances it is anticipated that there will be an alleviating of the stress that she finds in what is either a lack of financial support or at least a strongly perceived lack of financial support by the father.  That is, this change in stress is ultimately a factor to be taken into account in considering the benefits of a move for B and C. 

Issue  2 - Whether the applicant has psychiatric issues as alleged by the respondent and if so, the likely impact on:

a       the welfare of the children; and

b       compliance with Court orders.

1. Dealing firstly with the issue of the impact of the mother’s mental health upon the welfare of the children, the father expressed a concern that the mother suffered from schizophrenia.  His position at the commencement of the trial was that if the mother does suffer from schizophrenia then he should have both sole parental responsibility and sole care of the girls.  By the end of the trial this had ceased to be an issue.  Dr E (psychiatrist and Single Expert) gave evidence, provided a report and was cross-examined by the father.  Following this the father no longer sought a finding that the mother suffered from schizophrenia and indicated that he did not seek either 100 per cent care of the children, nor an order for sole parental responsibility. 

2. The second issue in relation to the children’s welfare and her mental health was in relation to the mother’s history of suffering from depression.  The mother has a history of depression, part of which is shown in the medical records tendered.[1]  These show that the mother has been prescribed various medications for dealing with depression.  During the proceedings the mother indicated a desire to wean herself off the antidepressant medication.  The father expressed a concern as to this weaning off the medication and as to what effect it may have.  The mother indicated that any weaning off would be conducted subject to advice from her general practitioners and indicated that if she was to relocate to Country H she would again seek advice and would take her medical records from the Australian Capital Territory (ACT) with her.  Dr E did not perceive this weaning off to be necessarily detrimental to the mother provided that it was undertaken in consultation with medical advice.  Dr E identified stress as the main cause for a potential relapse of the mother’s now well maintained condition.  He thought that the risk to her condition posed by stress may be heightened if the mother is weaned off her medication. 

   [1] Exhibit ICL1

3. The mother put forward a number of reasons why the move to Country H would be helpful to her in this respect.  Her hope is that she would be happy as she would be subject to less stress (for example financial stress), will be close to her partner (as opposed to currently isolated from him) and will be closer to the balance of her family who reside in Country I (a mere one and one half hours’ flight from Country H).  All of these matters were put forward as being matters which would reduce her stress and thereby make her less likely to suffer a relapse in respect of her depression.

4. However, while these matters may lessen the exposure to depression, no evidence was led as to any particular adverse impact on the mother’s ability to parent or in the girls’ experience of their mother’s parenting by virtue of her depression.  Rather, the evidence leads to a conclusion that the mother’s depression is well managed. 

5. The second matter that the father put forward related to the impact of the mother’s mental health is on her compliance with Court orders.  However, there was no evidence to suggest that the mother’s history of depression rendered her in any way less likely to be compliant with Court orders. 

Issue  3 -    Whether the applicant undermines the respondent’s relationship with the children as alleged by the respondent

Issue 4 -    Whether the applicant involves the children in parenting disputes

Issue 5 -    Whether the applicant has repeatedly threatened to take the children away from the respondent to prevent him from ever seeing the children

1. It is sensible to deal with these three issues together as the evidence in respect of each overlaps. 

2. There were three key pieces of evidence that related to these issues.  The first related to evidence surrounding an incident occurring after the affidavit material had been filed but shortly before the trial of the matter involving the attendance of the girls at a local fireworks event.  The second source of evidence is the text messages (excluding those which were not admitted by virtue of objection) as annexed to the father’s affidavit.  The third set of evidence was the audio visual recordings of the girls annexed to the father’s affidavit. 

3. The fireworks incident involved a conflict between the girls and their father regarding whether they would attend the fireworks or attend a religious festival with their father.  The events were scheduled to occur on a weekend that the girls were with their father.  He says that they expressed to him their desire to attend the fireworks with their mother.  He further gave evidence that as far as he was concerned it was fine for the girls to attend the fireworks with their mother, if their mother was to contact him to advise that she would take them.  The mother gave evidence that she was contacted by the girls on multiple occasions asking her to contact the father about the fireworks.  The mother expressed a reluctance to become involved in such an exchange and declined to contact the father, indicating that he could contact her.  It appears that the girls became extremely upset.  One of the girls contacted the mother, appearing distraught, and complained that she was afraid because her father had raised his hand to her (although not hit her).  There is no evidence that the father has ever hit the girls.  The mother gave evidence that she asked her daughter if her daughter was able to contact the police (the mother being unwilling to do so).  The daughter indicated that she was not prepared to call the police at which point the mother suggested that perhaps the daughter would contact Ms F (the Single Expert in this matter who previously had a therapeutic relationship with the girls).  The daughter was prepared to do this and called Ms F.  Her presentation to Ms F, her expression of fear and her description of the raised hand, led Ms F to call the police herself.  It was subsequently arranged for the mother to attend the father’s home when the police were attending the home.  However, on her way there she observed the police to have left the house and spoke to the police who indicated that her attendance was no longer required.  The police apparently took no action.

4. The father gave further evidence that it became clear to him that the religious festival that he was going to take the girls to was a women’s only religious event which meant that he would be unable to attend.  Accordingly, he says he then gave the girls the choice of whether they wished to go to the fireworks or the religious festival.  They opted for the fireworks and attended that event. 

5. The father was critical of the mother, believing that the mother had organised a party at the fireworks event on that weekend, in circumstances that would mean the girls would not want to be with him but would want to be with her.  The mother denied organising any such party.  When speaking to Ms F, B expressed her strong desire to go to the fireworks so that she would be able to see friends who would be attending the fireworks, who she believed she would not be able to see for a long time (which I infer relates to the upcoming proposed relocation to Country H). 

6. The parents’ competing positions in relation to this incident were such that the mother believed that the father was attempting to set her up by causing the girls to ask her to contact the father about the matter.  The father’s position was that the mother had manipulated the girls by organising an event attractive to the girls such that they would not want to spend the weekend with him.

7. What emerges from the incident is that the girls became extremely distressed.  This raises questions about the father’s capacity to emotionally manage the girls.  It also raises questions about potential undermining of that relationship by the creation of expectations in the girls for their attendance at an event contrary to their time with the father.

8. This particular instance does not allow me to draw a conclusion as to the father’s general ability to emotionally support the girls.  The parties were at the time under the difficult circumstances of conflict and litigation.  The spilling over of the stresses caused by that conflict can be seen in the matters outlined below in relation to text messages and the video recording of the girls.  It is unsurprising that there may be difficulties caused between a parent and children and it would be unfair to draw adverse conclusions about the nature of the relationship or the ability of the parent to manage that relationship based on that incident.  Similarly, I could not safely infer that the mother had taken steps to undermine the father’s relationship either by arranging an event that the girls would be attracted to even though they were with the father on that weekend.  While the suggestion by the mother to involve the police raises the spectre of manipulation of the girls, I am unable to conclude that the mother was being disingenuous.

9. The incident does, however, reflect the degree of difficulty that the father may face in emotionally caring for the girls should their desires not coincide with his. 

10. The second source of evidence was a collection of text messages annexed to the father’s affidavit.  Many hundreds of text messages were annexed to the father’s material.  I was not taken to any of these in particular, but have examined those that were admitted into evidence.  On a number of occasions the father’s texts to the mother were presumptive in the sense that they expected the mother to be able to deviate from the scheme for the father spending time with the girls, as set out in the orders, at short notice.  The deviations assume that she would be able to pick up those times when the father found it difficult to or was unable to spend time with the girls.

11. On a number of occasions the texts sent by the father to the mother were rude, offensive, aggressive and highly critical of the mother in her role as a mother. 

12. However, the text messages also evidenced ad-hoc refusals of the mother to provide the girls, generally predicated upon an assertion that the girls did not want to spend time with the father. 

13. More significantly, the overwhelming tone of the text messages by the mother to the father was that of vitriol, hostility, and abuse.  They are highly critical of the father, often in circumstances where the father’s interaction with the mother was, at face value, inoffensive.  The terms of the mother’s texts are critical and often, it appeared, designed to cause offence to the father.  The volume and consistency of these hostile text messages greatly outweighed those of the father and were indicative of the mother holding an extremely low view of the father’s value to the girls as a parent. 

14. It should be noted that the father was self-represented at the trial of this matter.  He directed no questioning to the mother in relation to the text messages, such as to seek an explanation from her as to those messages.  However, likewise, the mother directed no questions to the father in relation to the text messages or what it was that he might have done to have elicited such sharp and aggressive responses from the mother.  Certainly no contest was made of the fact that these text messages had come from the mother, nor was a suggestion given that they had somehow been decontextualized by the father. 

15. Neither of the parties comes out of this set of text message exchanges, which span years, but are particularly concentrated in the period from July 2016 to February 2017 (being the period of the litigation) unscathed.  The dominant impression, however, left by the text messages is one of a deep hostility on the part of the mother towards the father, which is centred on the subject matter of their children.

16. The consistent hostility, in particular as it regards the father being a father, undermines the notion that the mother will be positive or supportive of the relationship with the father. 

17. The father also annexed to his affidavit a series of texts between himself and each of his daughters.  A significant number of these texts were the unremarkable exchanges that one might expect to see between a father and a daughter, although during the period of the ligation a large number of the texts from B were in the context of the dispute about whether or not they would be able to relocate to Country H.  B expressed a strong desire during these that the father would permit her to relocate.  The combination of texts from the girls and from the mother were indicative of difficulties in the relationship between the father and the girls at least during the period of the litigation. 

18. The father also relied upon eight audio visual recordings made by him of the girls either interacting with him about their mother, or the girls interacting with their mother on the telephone.  On each occasion of these recordings the girls were aware that they were being recorded by the father.  Each constituted an example of the father involving the girls in the conflict between him and the mother and in the litigation process.  He recorded the girls while they were arguing with their mother by telephone under circumstances where he was aware that the girls had represented to their mother that she was not on speaker phone.  He appeared to encourage the girls to make criticisms of their mother as he questioned them about their mother and about their views about what should be happening with them.

19. The father demonstrated no insight regarding this involvement of the girls in the proceedings and the harm that it could do to them in their relationship with him, or their relationship with their mother.

20. This involvement of the girls in the proceedings by the father reflects badly upon his capacity to emotionally care for the girls and of his ability to protect the girls from exposure to conflict between he and the mother.  It also represents a failure to support the relationship between the girls and the mother. 

21. However, the videos were also demonstrative of difficulties posed by the mother to the parenting relationship between the father and the girls. 

Video one

a.The key feature of this first video was the father questioning the girls about their views on various parenting arrangements.  The questions were suggestive of what a favourable answer would be.  They implicitly applied pressure to the girls, whether or not they were understood to do so at the time.  He asked the girls if they would agree to swap more days and asked the girls if they had lied about him in order to keep their mother happy.  The girls indicated that the mother was always complaining regarding the father “brain washing” them, that they felt that they had to take sides and that they were worried about their mother going crazy if they were to ask her for more days with their father. 

b.The suggestive manner of questioning does not allow me to draw conclusions adverse to the mother from this recording.  I do not know whether the answers were given to placate the father, or were reflective of the girl’s experience with their mother. 

Video two

c.In this video the girls explained to the father that their mother had told them that she wanted full custody so that they would not have a relationship with their father.  The girls indicated that they thought that this was just an example of exaggeration on the part of their mother and complained that both their mother and father exaggerated about things and that each said bad things about the other parent.  The girls indicated they would like to spend a little more time with their father.  The father suggested to them that 50/50 would be the preferable outcome. 

d.Interestingly, the girls both criticised and defended their mother, explaining both parties said bad things and exaggerated.  They also appeared comfortable offering criticism to the father of his conduct in a conversational manner. 

Video three

e.This was a recording of the girls speaking to their mother on speaker phone.  This recorded assertions by the mother that she was the one who looked after and provided for the girls.  The mother outlined that it was she who had paid for their musical instruments, she who had paid for their school camps and she who had paid for 95 per cent of anything to do with their education. 

f.It was unclear why it was necessary for the mother to make these implied criticisms of the father in a phone call to the girls while they were spending time with their father.  I do not know the complete context of how it was that these issues were made important to the mother on this occasion.  However, it appears to be an example of an attempt to undermine the relationship between the girls and their father while they were spending time with him. 

Video four

g.This recording is also of the girls’ interaction with their mother on speaker phone.  The video runs for about 25 minutes.  There is a conflict between the girls and their mother about sleep over arrangements when they were due to return to their mother’s house.  When one of the girls complains that ‘she is tired’ to explain why she is interacting with the mother the way that she is, the mother says to her that it is her father’s fault and that she should not be taking it out on her mother.  When the complaint is made that she is tired because the father takes them out to G Town each morning the mother encourages her to “put your foot down” and to tell her father “I am not going out to G Town”.  The mother impresses upon the girls the need to make choices for themselves, and that the type of issue that they are facing does not happen when they are with their mother.

h.In this recording the mother tells the girls that she does not do the wrong thing and that the only mistake that she has ever made was in marrying their father.  The mother further rebukes the girls for their attitude towards the mother and indicates that this is what happens when they go to their father’s place and do absolutely nothing (apparently a reference to playing video games and being on YouTube). 

i.Troublingly the father records this in a context where the girls represent to their mother that she is not on speaker.  That is, he records the girls lying to their mother about whether or not she is being placed onto the speaker phone.

j.However, the recording also evidences significant undermining of the father’s relationship with the girls by the mother.  The girls are instructed to resist his parenting arrangements, and are told that the father compares unfavourably to her both in his financial support of the girls and in the arrangements that he makes for them, and that he is responsible for their poor behaviour to the mother.

Video five

k.This video involves the father cross-examining the girls as to what they had or had not told their mother about him.  He fosters the girls making complaints about their mother which descend to a complaint about the mother and Mr D eating the bulk of the chocolate that had been purchased in the household on a particular occasion.  The father subsequently accuses the mother of emotional torture.  When questioned about his critique of the mother’s chocolate eating, the father did not resile from his strident criticism of the mother for eating the chocolate rather than providing it to the girls. 

l.This recording, and the father’s explanation of it, reflect very poorly on the father.  It is unfairly critical of the mother and undermining of her relationship with the girls.  It does not reflect poorly on the mother.

Video six

m.This video was again a recording of the mother speaking to the girls on the telephone.  The mother is expressing her anger at the father having disallowed the girls from going to her home on a particular occasion on the basis that she would fill their heads with rubbish. 

n.While not as obvious as in Video four, both the making of the video, and what is recorded is a pitching of one parent against the other.  Each parent undermines the other.  The father by his recording, the mother by her criticism of the father.

Video seven

o.This video was also a recording of the girls’ interaction with their mother.

Video eight

p.This appeared to follow on from video seven and involved criticism by the mother of the father for not causing the children to be able to visit one of their friends.

1. While the videos do not reveal a complete picture, being absent context, presumably being a less than complete record, and potentially being selective in what was presented, they still provide strong evidence of the mother undermining the father’s relationship with the girls.  This issue of undermining was further supported by B’s report to Ms F regarding child support that “He loses or deliberately doesn’t hold onto jobs.  He avoids Child Support or sharing costs.”[2]  These echo the mother’s complaints regarding the father.

   [2] Exhibit C2 [6.24]

2. For the mother I was urged to find that despite these recordings and texts she is supportive of the father’s relationship, as the girls still visit their father.  This argument is undermined by the ad hoc non-attendances.  To the degree that an inference could be drawn that the mother is supportive as she provides the girls, such an inference is undermined by what was said by the mother to the girls. 

3. The text messages show hostility toward the father that provides a motivation to undermine his place with the girls.  There is no underlying acknowledgment of his value to the girls as a father that would act as a reason to be supportive of the relationship.

4. The mother undermines the relationship and regards the father with such disdain and hostility in his role as a father as is conducive to further undermining.

5. It is also clear from the recordings that both parents have involved the girls in the parenting dispute.  What was said by the mother, the questioning by the father and the recording by the father drew the girls in to become participants in the parents’ dispute.

6. The evidence does not go so far as to support the notion that the mother has repeatedly threatened to take the children away from the father, although Video three provides some support for the mother threatening to end the girls’ relationship with the father. 

Issue 6 -    Whether the children are reluctant to see their father and if so, the reasons

1. It appears that at present the children are reluctant to see their father.  This can be deduced from the mother’s assertion that she has to work hard to make them go and see their father, along with the content of the text messages between the mother and the father and B and the father.  The reluctance of B appears to be largely based on the conflict that she has with her father about whether or not she should move to Country H.  All of the difficulties as revealed by the text messages seem to coincide with the dispute about whether or not the girls are able to move to Country H. 

2. However, B also reported to Ms F an incident where she says that the father pushed the mother, resulting in the mother attending hospital.[3]  While I was unable to prefer either of the competing descriptions given by the parties, and while I am unable to assess the independence of B’s report given the parent’s involvement of her in the conflict, B’s expressed view of the incident presents as a negative in her relationship with her father.

   [3] Exhibit C2 [6.27]

1. B described her father as angry, expressing a concern as to what her father might do if she were angry with him.[4]  However B also reported that she told her father that she did not like seeing him.  No adverse response from the father, or difficulty in saying this to him was reported.  She said that he insists on supervising the girls outside, but that they were not restricted as to being on the internet at the father’s home.[5]  C described her father as “scary when he’s angry.”[6]  She said that he “gets angry really easily.”[7]  She also said regarding her father that “we get what we want.”[8]  Ms F assessed that the polarised attitudes expressed by the girls to their parents appeared to be related to the conflict between the parents such that “they felt the only way to resolve their conflicted feelings was to take an extreme position, black/white, good/bad.”[9]

   [4] Exhibit C2 [6.26]

   [5] Exhibit C2 [6.25]

   [6] Exhibit C2 [6.14]

   [7] Exhibit C2 [6.7]

   [8] Exhibit C2 [6.9]

   [9] Exhibit C2 [7.6]

2. Ms F assessed C as being more anxious than 92 per cent of her peers.[10] B was assessed as more anxious than 88 per cent of her peers.[11]

   [10] Exhibit C2 [6.19]

   [11] Exhibit C2 [6.30]

3. Ms F further indicated reluctance on the part of the girls sourced in fear.  None of the texts between the girls and their father supports the notion that they are afraid of their father.  The video recordings also do not support the notion that they are afraid of their father.  However, the absence of a demonstration of such fear in texts or on potentially selective videos does not necessarily negate the view held by Ms F that there is some element of fear, particularly in her interaction in relation to the fireworks incident. 

4. It can be concluded that at present there is a reluctance on the part of the girls to spend time with their father.  The precise reasons for that reluctance are difficult to discern, although it appears likely that a number of those are connected with the current litigation.

Issue 7 -    The likely extent of harm to the relationship between the respondent and the children if the proposed relocation takes place

Issue 8 -    What benefit (if any) will the children receive by relocating to Country H and whether such benefit outweighs the likely harm to their relationship with the respondent

1. These are the two key issues identified by the parties.  They are connected to the other issues.  Within these the father identified the two matters that concerned him.  The first is whether or not the mother would ever return the children from Country H.  This will be dealt with in a later item.  The second is whether, while the children are in Country H, their relationship with the father will disintegrate.

2. A move to Country H would cause a significant reduction in both the amount of time the girls are with their father and the frequency of such time.  On the mother’s case the time would be limited to one visit per year and non-face-to-face time, for example by means of Skype.

3. At the moment the father and girls are scheduled to, and spend time together, each week.  While the father has asserted at [162] that the current regime has “functioned well” and that difficulties are “uncommon”, and whilst I was urged to accept this at face value by the wife, it does not appear to be so.

4. At present there is frequent interaction between the girls and their father.  It has been of a nature such that previously the mother consented to an increase to allow midweek overnight time.  Despite the current frequency of time, there are problems in the father’s relationship with the girls.  It is now assessed as characterised by negative emotion.

5. Ms F has assessed difficulties in each girl’s relationship with her father, the relationships being characterised by negative feelings.  The results of testing indicated that B holds a “moderately strong but negative emotional involvement with her father”,[12]  which indicated that her relationship with her father was problematic.  Similarly, C’s level of emotional involvement with her father “was moderately strong but not positive”. [13]  In contrast, both of the girls had a high degree of positive emotional involvement with their mother.

   [12] Ex C2 [6.29]

   [13] Ex C2 [6.17]

6. Ms F did not believe that a move would mean that the girls would forget their father.  The question of forgetting their father did not appear to be a particular issue raised.  Ms F thought that the girls “would adjust relatively easily to the separation from their father”. [14] 

   [14] Ex C2 [7.9]

7. Ms F went so far as to suggest that the regime of the girls moving to Country H and spending one block period of time with their father per year would act to improve their relationship with him, saying that it was the best chance to improve the relationship and that it was more likely the relationship would flourish.  She thought that two visits per year would be sufficient to allow the relationship to flourish.

8. The benefit of the move as set out by Ms F was that it could act as a circuit breaker for the current conflict within the family.  She identified that a particular issue for the girls is their involvement in the proceedings and conflict between the parents.    

9. She described that the move could act to put into place proper arrangements for the father’s relationship with the girls.  It was not clear how the move would allow proper arrangements to be put into place in contrast to what is already in place.

10. As to what arrangements would be available, the proposal put forward by the mother is that there be one block time visit by the girls to their father in Australia each year.  This is a proposal made despite the difficulties which appeared to occur during the block time between the father and the girls over the last Christmas holidays.  As to whether or not such an arrangement would be adequate, Ms F said that they should “maximise possibilities”.  This response did not address the question of adequacy, as opposed to identifying that if the girls move to Country H as many benefits as possible should be extracted from interaction with their father.

11. As to prospects for the maximisation of the benefits of block time, B told Ms F[15]

    “I can’t imagine we’d have a good time” and “a couple of days at a time might be ok, or half a day”.

    [15] Ex C2 [6.28]

12. She said that this hope for promotion of the relationship was particularly available if the mother had a positive attitude to the relationship between the girls and their father.  Ms F said that the mother would need to demonstrate an overtly positive attitude to the visits.  My assessment on the balance of the evidence, in particular the texts and videos, leads me to conclude that the mother is unsupportive and undermining of that relationship.  She does not hold a positive attitude to the relationship between the girls and the father.

13. The particular context of these views expressed by Ms F is of the girls’ wish to move to Country H.  The father agrees that the girls want to go, accepting that they are genuinely enthusiastic.  Ms F indicated that there would be a broadening of their minds, there was some understanding that the move would involve riding bikes, they would be able to attend an international school, and that although they would miss their father, there would not be the same arguments.  It had been expressed by B to Ms F that if they did not get to go then she did not want to see her father ever again, although she acknowledged that this would ease over time.  Ms F also thought that dismissing these wishes would be “damaging” and could have an indelible effect on their sense of self-worth. [16]   There is no assessment of how likely this is, nor what its actual impact may be, nor what the damage might be.  Ms F also thought that the girls would miss their father more than they realised if they were separated from him.[17]

    [16] Ex C2 [7.6]

    [17] Exhibit C2 [7.9]

14. There was little demonstration that the girls understood the negatives of their move, including what it is that they would leave behind in Australia, in particular the effects of leaving behind their father. 

15. The rationale advanced by Ms F for assessing a move to Country H as being the best chance to improve the relationships between the girls and the father, and as it is being more likely to flourish, is difficult to accept.  The best chance for such an outcome from a move to Country H seems to be reliant upon two factors.  One is the reduction of conflict between the parties and the other from a positive attitude to the relationship from the mother. 

16. There appears to have been a degradation of the relationship between the girls and the father that coincides with the litigation in this matter.  The girls have been involved in the litigation.  If the litigation is a catalyst in the conflict, it ends (subject to any appeal process) with the delivery of judgment. 

17. If the conflict is unrelated to the litigation then it is difficult to see that it is brought to an end either by a move to Country H or with the children remaining in Australia.  Although Country H means that there is a reduction in face-to-face time, conflict may arise from a frequent Skype contact with the girls.

18. The mother does not have a positive attitude to the relationship.  Although Ms F thought that there could be an improvement due to the mother having “emotional distance” from the father, there is no setting out of a reasoning process as to how the geographical distance provides an “emotional distance” in the context of the need for frequent interaction between the father and the girls, nor how the “emotional distance” might be formed, nor how it would lead to the mother being supportive of a relationship she appears to currently place little value on. 

19. Ms F assessed that the Skype and yearly visit arrangements, if supported by both parents, would be sufficient for the girls to “derive what they need from their relationship with their dad.”[18]  Even if that support was available, and I am unable to accept that it is, I am unable to discern from Ms F’ report what is the scope of “what they need” and how that compares to a relationship supported by the more frequent regime that would be available if they were to remain in Australia. 

Issue 9 -    Whether the applicant is likely to comply with any contact regime if permitted to relocate to Country H

Issue 10 -  Whether the respondent and the children are likely to return to Australia at the conclusion of the proposed relocation

[18] Exhibit C2 [7.12]

1. I note that Country I and Country H are both Hague Convention countries.  This enhances to prospects of the mother’s return.

2. The mother expressed that she is likely to return to Australia because, although she has all of her family close by when she is in Country H (in Country I), she regards Australia as home.  She says that she has solid roots here and has good friends both for herself and the girls.  Australia, she says, is familiar.  The mother also points to the fact that when she has travelled before she has always returned.

3. It appears more likely than not that the mother intends to return and would return.  The prospects of return are significantly reinforced by the relevant countries being Hague Convention countries.  In determining the matter I do not consider that there is any significant risk of the mother not returning in accordance with orders.

4. As to the likelihood of compliance with the orders, the mother indicated that it was a “big fish” meaning a matter of importance that the girls’ relationship with their father be fostered.  Against this has to be weighed the attitude to the father as dealt with earlier.  That creates significant doubt as to whether orders providing for the father to have time with the girls, either by Skype or by face-to-face time would be fully complied with.

Discussion

1. As noted at the commencement of the consideration of the issues identified by the parties, the issues selected reflect the factual matters that go to the assessment of what is in the girls’ best interests. They reflect the s 60CC considerations that are most applicable to the case. In particular they bear upon the consideration of the benefits that the girls, given their particular characteristics (s 60CC(3)(g)) might receive from a meaningful relationship with the father (s 60CC(2)(a)), in the context of that relationship both past and present (s 60CC(3)(b)) and how the proposed change and difficulties associated with it may impact upon that relationship (ss 60CC(3)(d) and (e)). This has further involved the consideration of both the capacity of the parents to provide for the emotional needs of the girls, with some focus upon the mental health of the mother, and how their attitudes to the responsibilities of parenthood cause them to use or not use that capacity, particularly in how they have or have not supported the relationships between the girls and the other parent (ss 60CC(3)(f) and (i)). They have involved a consideration of how the parents have fulfilled duties to maintain the girls (s 60CC(3)(ca). They have involved a consideration of family violence (s 60CC(3)(j). They have involved a consideration of the views held by the girls, in particular their view that they wish to move to Country H (s 60CC(3)(a)).

2. Having analysed each of the issues through the perspective of s 60CC, it is necessary to determine what orders will be in the best interests of B and C in accordance with the pathway set out at s 65DAA of the Act.

3. As noted above, the parties have agreed that they should equally share parental responsibility, despite the difficulties that each has with the other in parenting.  While their difficulties are significant, they are not such as to mean that the parents should not work together to make decisions about the long term welfare of their two children. 

4. What follows from this conclusion, pursuant to s 65DAA of the Family Law Act 1975, is consideration of the children spending equal time with each of the parents.  For the reasons outlined above, it is both contrary to the best interests of the children, and impracticable, for there to be an equal sharing of time between the parents.  The degree of conflict between the parents and the manner in which each of the parents has exposed and involved the children in that conflict, means that the degree of cooperation that will be necessary for  equally shared time is not available.  Absent that cooperation, with a likelihood of further conflict being generated by that lack of cooperation, and with the likelihood of the children being involved in that conflict, it is against their interests for there to be an equal sharing of time.  Further, the different relationships that the girls have with each of their parents also points against an equal sharing of time.  At present the girls feel emotionally safe and understood with their mother.  The Family Report demonstrates a high degree of connection between the girls and their mother.  At the same time, there are difficulties in their relationship with their father and in the way that they perceive him.  The present state of the relationship between the father and the girls is not such as to support an equal sharing of time. 

5. An order for the equal sharing of time should not be made.

6. This then raises the consideration of whether or not the girls ought to spend substantial and significant time with the father.  Initially this matter may be considered without reference to the relocation proposal in accordance with the process set out in Taylor & Barker.[19]

   [19]Taylor & Barker (2007) FLC ¶93-345.

7. The mother’s position if she does not move to Country H is that the current orders made by consent on 23 May 2015, which provide for each second weekend and every Wednesday after school, should continue.  This would involve a reduction in the time the father has been spending with the girls until recently as, prior to the litigation, the parties agreed to extend the mid-week time that the girls spent with their father from after school to overnight.  The extension of time appeared to recognise the appropriateness of the substantial and significant arrangement and acted as a tacit recognition of the benefits to the girls.  However, difficulties have increased since the commencement of litigation.  These have included inconsistency in the girls attending to spend time with their father and, in the context of the litigation, there has been an increase in the tension between the parties, an increase in the conflict between the parties, and the involvement of the girls in the conflict.  Once the litigation is resolved and the question of a move to Country H is resolved that there might be some degree of dissipation of conflict between the parties, although it cannot be concluded that there will be a resolution of the underlying hostility that has been exposed in the litigation.  An order contrary to either of the parties’ interests may cement that party’s resentment rather than ease the hostility.  It ought not to be thought that the problems between the parties will disappear once the litigation is ended. 

8. Regular time that incorporates school and non-school time, holiday and special events time, gives the father and the children a good opportunity to build and maintain their relationship and for the children to enjoy the benefits of a meaningful relationship with the father.  In the event that the mother remains in Australia, her orders sought accept that there ought be substantial and significant time.  It is this benefit of relationship that is supportive of an order for substantial and significant time. 

9. However, against this benefit stands the proposal for the mother and children to move to Country H and an examination of the benefits to the children of this arrangement. The contest of these outcomes, that is, how substantial and significant time in Australia might compare with the girls living in Country H and the marginal time with the father that would involve, is the most significant contest in this case. The resolution of this matter must be on the basis of what is in the girls’ best interests as seen through the values expressed in s 60CC of the Family Law Act 1975. As identified earlier in this judgment, the identification of the issues by the parties incorporates the most significant of the objects and considerations applicable to this case.

10. An assessment of the benefits of a move to Country H cannot be on the basis that it is anticipated that the mother will be positive and supportive of the girls’ relationship with the father for the reasons set out earlier in the judgment.  Rather it appears that the relationship, at present characterised by negative emotions, is unlikely to be supported, and being reliant upon Skype and a single visit per year, is at risk of diminishing further.

11. The proposal to move to Country H will see a significant reduction in the interaction between the father and the girls, restricted to one face-to-face visit each year and regular time on Skype.  If it were the case that the mother was positive about the relationship and could be relied upon to support the relationship between the girls and their father, then a proposal for the Skype time and yearly visit may have the capacity to continue to support some relationship between the girls and their father, albeit a significantly reduced relationship to that which they currently experience.  Absent that support, it is difficult to anticipate anything more than a marginal role for the father in his daughters’ lives over the next four years.  Such a marginal involvement by the father accompanied by an unsupportive environment for the relationship is unlikely to give the children the benefit of meaningful involvement from him in their lives.  They would certainly not be able to spend time with him on a regular basis and it is unclear whether communication would occur on a regular basis between the girls and their father.

1. While such an arrangement might accord with their current views, it is far from clear that the girls appreciate fully the impact of the move to Country H, both in terms of their connections and lives in Australia generally and more so in relation to their relationship with their father.  

2. There is a significant risk that such a change in circumstances will see a further degradation of their relationship with their father.  Ms F’s view of the potential benefits of the move to the relationship between the girls and the father was heavily reliant upon support for that relationship coming from the mother.  While I doubt that even with support it constitutes a better arrangement, without that support it does not better facilitate a relationship between the father and the girls than an arrangement whereby the girls spend time with him each week.

3. While there may be benefits in a move to Country H, for example, a broadening of experience, a potential lessening of financial pressure on the mother, and closeness for the mother with her family and her partner Mr D, the benefits of these matters for the girls do not rise to the same level of significance as the consideration of the benefits of relationship with the father.

4. Accordingly orders will not be made that will permit the girls to move to Country H.

5. Given the nature of the relationship between the parents it is necessary to make orders that minimise both their interaction and the need for cooperation between them.  Having determined that an equal sharing of time is not appropriate, the different nature of the relationships that the girls have with their mother as opposed to the father means that she should continue in her role as the parent with whom the girls primarily live.

6. It is appropriate that the father have substantial and significant time with the girls due to the importance of their relationship.  The mother’s position is that this should reflect the current orders that provide for alternate weekend time, with one evening per week.  This departs from the agreement the parties reached prior to the litigation which resulted in the father spending alternate weekends and one overnight per week.

7. An arrangement that limits the occasion for interaction by collecting and returning the girls to school rather than the other parent is preferable.  Such overnight time gives greater scope for involvement in the everyday activities of the girls, without departing from the frequency that the parties have in the past agreed is appropriate and which the mother presently asserts as appropriate by her case outline.

8. Aside from a contest about whether there should be equal time in the event the mother remained in Australia, the parties were in general agreement about the form of orders in such an event, the mother seeking to keep the current orders and the father’s application copying in large part the current orders.  With adjustment to allow for mid-week overnight time the orders will largely replicate those currently in force.

9. A matter that received little attention at the trial was what arrangements should be in place in relation to overseas travel if the mother is not at liberty to relocate.  The mother’s family is in Country I.  Her partner is in Country H.  During the trial the mother raised the prospect of a visit to Country I.  While the father raised a question during the proceedings as to the mother’s likelihood of return should she take the children overseas, he indicate that he did not oppose a trip to Country I in the event that the mother was not permitted to relocate the residence of the children to Country H.  This is consistent with the findings that I have made regarding the lack of risk of the mother returning the children on being overseas.

10. Since the decision was reserved an application has been filed by the mother seeking to travel to Country I for the purpose of seeing her family.  This matter will be dealt with on delivery of the judgment.

11. The mother has also filed an application seeking that her costs of the final hearing be paid by the husband.  This matter will be adjourned for further argument at a date after the delivery of judgment.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 11 May 2017.

Associate:

Date:  11 May 2017