Brecht and James (No. 2)
[2013] FamCA 751
•8 October 2013
FAMILY COURT OF AUSTRALIA
| BRECHT & JAMES (NO. 2) | [2013] FamCA 751 |
| FAMILY LAW – CHILDREN – Best interests – children aged eight and seven years – application made by maternal grandfather to spend time with and communicate with the children and for the children to be relocated back to the Sunraysia region in Victoria – children currently live with father in Adelaide – children previously lived in the Sunraysia region until 2010 – when children’s mother passed away father relocated with children to Adelaide in January 2011 – effect of the children’s relocation upon half-sister, aged 13 years – whether children are subject to harm if spending time with the maternal grandfather and half-sister – whether father able to facilitate time between children and the maternal grandfather – consideration of best interests of the children – children to remain living with the father in Adelaide and to spend time with the maternal grandfather and accordingly the children’s half-sister. Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Schedule 3 |
AMS v AIF; AIF v AMS (1999) 199 CLR 160; FLC 92-852
Coleman & Hindle and Ors [2010] FamCA 319
Donnell & Dovey (2010) 42 FamLR 559
Goode and Goode (2006) FLC 93-286
Heath & Hemming (No 2) [2011] FamCA 749
R and R: Children’s wishes (2000) FLC 93-000
Rice & Asplund (1979) FLC 90-725
| APPLICANT: | Mr Brecht |
| RESPONDENT: | Mr James |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 692 | of | 2013 |
| DATE DELIVERED: | 8 October 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 14, 15, 16, 19, 20 and 21 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Williams |
| SOLICITOR FOR THE APPLICANT: | JR Watson Legal Services |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Gilbert & Mattner |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McNamee |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That all existing orders in relation to parenting matters be discharged.
That the father have sole parental responsibility for the children
T James born … 2005 and M James born … 2006.
That the children live with the father in Adelaide.
That the children spend time with the maternal grandfather as follows:
(a)in Town X, failing agreement between the parties from 10.00 am until 6.00 pm on the Saturday of the first weekend after the commencement of the fourth school term in 2013;
(b)in Town X, for two weekends during the fourth school term in 2013, from 10.00 am on Saturday to 3.00 pm on Sunday as agreed between the parties and failing agreement, on the third and seventh weekends after the commencement of the fourth school term in 2013.
(c)in Town X, commencing December 2013, for the long school holiday period, for two five-day periods as follows:
(i)for five days from the day after the conclusion of the fourth school term in South Australia; and
(ii)for five days commencing on 8 January.
(d)in Adelaide, upon the maternal grandfather giving the father 21 days’ notice but not more than two times per school term, failing agreement between the parties from 10.00 am until 6.00 pm Sunday.
(e)in Town X from 2014, for two weekends during school term from 10.00 am on Saturday to 3.00 pm on Sunday as agreed between the parties and failing agreement, the third weekend and the seventh weekend after the commencement of each school term, with such time to be suspended during school holiday periods and recommence on the third Saturday after the resumption of the school term;
(f)in Town X, from 2014 for five days in each short school term holiday period, being the first half in each even numbered year and the second half in each odd numbered year.
That for the purposes of changeover in Town X, the parties attend at the M Contact Centre, Town X, with the father to deliver the children to and collect the children from the contact centre, unless otherwise agreed in writing between the parties.
That for the purposes of changeover in Adelaide, changeover be at a location deemed most appropriate by the Independent Children’s Lawyer, unless otherwise agreed in writing between the parties.
That the maternal grandfather be present at all times during those periods when the children are in his care or ensure that the children are supervised by a responsible adult and that it is appropriate for the child B to be present when the children are spending time with the maternal grandfather.
That the maternal grandfather be provided with copies of all school reports and all school photograph order forms at his expense.
That each party inform and keep the other party informed of any serious medical conditions suffered by the children whilst the children are in their care.
That each party keep the other informed of a current telephone contact number and the residential address for the children.
That the order made appointing the Independent Children’s Lawyer be discharged one month after the making of these orders.
That during such periods when the children are not spending time with the maternal grandfather, he shall be entitled (together with the child B and other members of the maternal family) to contact the children via telephone or Skype at least twice a week at times to be agreed and in default of agreement between 6.30 pm and 7.30 pm on each Tuesday and Thursday. Each party is to facilitate such communication.
That during such periods when the children are not spending time with the maternal grandfather, he shall be entitled (together with the child B and other members of the maternal family) to contact the children via telephone or Skype on the occasion of each of the children’s birthdays if the children are in the care of the father at such times as may be agreed but in default of agreement from 4.00 pm until 5.00 pm.
That during any period that the children are spending time with the maternal grandfather, the father be at liberty to communicate with the children via telephone or Skype at least twice during any five day period and at least once during any weekend period via telephone or Skype. The times are to be agreed but in default of agreement between 5.00 pm and 6.00 pm on Saturday when there is overnight weekend contact and between 5.00 pm and 6.00 pm on Tuesday and Thursday during school holiday time. That communication with the children by telephone should take place in a private place so that the conversation is not overheard.
That the parties be restrained and injunctions granted restraining each of them from denigrating the other to or in the presence and/or hearing of the children or allowing any other person to do so.
That when the children are spending time with the maternal grandfather which coincides with the occasion of their birthdays, the father shall be entitled to contact the children via telephone or Skype at times to be agreed but in default of agreement between 5.00 pm and 6.00 pm on the occasion of their birthday.
That the father and maternal grandfather:
(a)do all such acts and things to facilitate their commencing counselling, together with such counsellor/psychologist as is nominated by the Independent Children’s Lawyer;
(b)participate in counselling for the purposes of improving the parties’ communication with each other, improving the level of trust between the parties, improving the parties’ understanding of the stressors and anxiety that the continued conflict between them has on them and to decrease such conflict between them and further to discuss any issues arising from the implementation of these orders from time to time;
(c)equally share in the cost of such counselling; and
(d)continue counselling with such counsellor/psychologist as long as is recommended by such counsellor/psychologist.
That pursuant to the Family Law Rules, this matter reasonably required the attendance of counsel.
That the existing applications are otherwise dismissed and the case removed from the list of cases awaiting finalisation.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brecht & James (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 692 of 2013
| Mr Brecht |
Applicant
And
| Mr James |
Respondent
REASONS FOR JUDGMENT
Introduction
T James was born in 2005 and is eight years old. Her brother M James was born on in 2006 and is now seven years old. The children have lived in Adelaide with their father, Mr James, for about two years. The children previously lived with him in Town X in the Sunraysia region of Victoria, where they had lived since birth. Their parents separated in January 2007 in Town X.
The children have a half-sister B who was born in 2000. Their half-sister is thirteen years old and lives in Town X with her maternal grandfather, Mr Brecht, who is also the maternal grandfather of T and M.
The children’s mother, Ms Brecht, died in Town X in June 2010 following a two and a half year battle with cancer. The child B is the daughter of the children’s mother from a previous relationship. Before the death of the mother, the children and B lived in Town X with her in the home of the maternal grandfather. The children T and M lived with their mother from Wednesday to Sunday and with their father from Sunday to Wednesday.
The child B and the maternal grandfather have had a close relationship with the children since they were born. However they have not spent regular time with the children since August 2012 despite orders providing for the maternal grandfather to spend time with the children at weekends and during school holidays. The father has not co-operated in facilitating regular contact between the children and the maternal grandfather in Town X pursuant to previous court orders.
For this reason and because B has become very upset with her lack of contact with her half-siblings, the maternal grandfather sought to enforce a conditional order of the Federal Magistrates Court made on 12 September 2011 (I note that the Federal Magistrates Court has been renamed the Federal Circuit Court from 12 April 2013). This order, made by consent of the parties, provided for the maternal grandfather to spend time with the children in Town X and included a conditional order which provided that if the father defaulted on two consecutive spend time with weekends, the father would, on application by the maternal grandfather, relocate to Town X with the children.
The maternal grandfather’s application also sought detailed orders for the children to spend time with him in Town X and made provision for other communication with the children.
The father opposed the maternal grandfather’s application but conceded that the children should spend time with the maternal grandfather in Town X, provided that such time did not include overnight stays until December 2013. The father conceded that there should be electronic communication and telephone communication between the maternal grandfather and the children. The father also conceded that the maternal grandfather should spend time with the children in Adelaide, but he did not specify how this might take place.
The maternal grandfather also sought court orders that both parties commence counselling to improve communication between the parties for the purpose of implementing the court orders. The maternal grandfather indicated that he has already attended some counselling under previous orders.
The father conceded during the trial that he was prepared to attend counselling, although he had failed to organise it under a previous order because, it was his evidence that, he was waiting for the counsellor to contact him.
Background
The maternal grandfather is aged 57 years and works as a handyman contractor. He lives in a four bedroom house in Town X with his wife,
Mrs Brecht, their three children, H aged 16 years, S aged 15 years, R aged 12 years, and B. The children B, S and R all have their own bedroom in the house, while H lives in a caravan at the back of the property. When T and M stay with the maternal grandfather, they share bedrooms with the other children who sleep in double beds.
The maternal grandfather also has adult children who do not live with him, from his relationship with his former wife, Ms A Brecht. Ms A Brecht is the maternal grandmother of the children.
The father is aged 28 years and works in hospitality. Since January 2011 he has lived with his brother, Mr V, and the children in Adelaide. The father gave evidence that their house is a large four bedroom house with a big backyard in an “upmarket area” of Adelaide. The father gave evidence that he works Monday to Friday from 8.00 am until approximately 2:15 pm and is paid $22.00 per hour. He stated that he began working in November 2012 because he was previously occupied with the full-time care of the children and settling into Adelaide.
The father also owns a unit in Town X where he lived previously. This is now occupied by tenants who are employed by his parents. The paternal grandparents are paying the mortgage on this property and it is the father’s evidence that he plans to sell the unit when the market improves. The tenants are not paying any rent because it is part of their employment contract.
The paternal grandparents reside in Town W which is about 30 kilometres from Town X.
History of proceedings
There have been a series of proceedings in relation to the children since their parents separated on 8 January 2007. On 12 February 2007, the mother made an application against the father for parenting orders in the local Magistrates’ Court. Final parenting orders were made in the Family Court on 11 April 2007.
The mother lived in the maternal grandfather’s home in Town X during her illness. The mother lived there with the children, the child B, the maternal grandfather and his wife. The children T and M also spent time with the father and began living with him for periods of time during the mother’s illness.
Between March 2009 and 2011, before the mother’s death, the mother and the father filed a series of applications in the Federal Magistrates Court. The parties remained embroiled in litigation during the mother’s battle with cancer.
In anticipation of the mother’s death, the maternal grandfather became involved in the proceedings, filing an application with the Federal Magistrates Court on 8 June 2010. The maternal grandfather sought that arrangements be put in place for the children following the mother’s death.
Before the proceedings were finalised and in January 2011, the father relocated the children from Town X to Adelaide. The father did not provide the maternal grandfather, the child B or the maternal family with any contact details for himself and the children and did not communicate with them after he relocated.
Final orders made by consent at the Federal Magistrates Court on 12 September 2011
Final orders were made by consent between the maternal grandfather and the father in the Federal Magistrates Court on 12 September 2011.
The orders discharged all previous orders and included orders that:
·The father have sole parental responsibility for the children and be responsible for their day to day care and education; and
·The father be at liberty to relocate with the children to Adelaide.
Detailed orders were made for the maternal grandfather to spend time with the children in Town X each third weekend of every month and to ensure that the children’s half-sister, B, also be present during the time spent with the children.
Orders were also made to allow for the children to spend time with the maternal grandfather for five days during the school term holidays and for five consecutive days at the start of the long school holiday period and for five consecutive days in the New Year, commencing the second week of January.
An order was made that the maternal grandfather be at liberty to spend time with the children upon his attendance in Adelaide, giving the father 21 days’ notice but not more than two times per school term from 11.30 am Saturday until 2.30 pm Sunday.
The consent order included an order that if the father defaulted on two consecutive contact weekends between the maternal grandfather and the children, the father would, upon application by the maternal grandfather, relocate to Town X with the children.
It is this condition previously agreed between the parties which was the focus of the proceedings before me and which gave rise to the maternal grandfather making an application for the children to relocate to Town X on the basis that the father had failed to comply with the orders.
The latest application before the Court was filed by the maternal grandfather on 4 February 2013 in the Federal Magistrates Court. It is this application of the maternal grandfather which resulted in a six day trial before me, where a number of witnesses gave evidence, including the maternal grandfather, B’s psychologist Mr N, B’s father Mr P, the maternal grandmother Ms Ms A Brecht, the wife of the maternal grandfather Mrs Brecht, the father, the paternal grandmother Ms James and the family consultant Ms J.
The maternal grandfather effectively sought an order for a positive injunction to relocate the children to Town X to give effect to the orders made by consent on 12 September 2011. He sought to rely on the fact that the father had failed to comply with the consent orders to argue that the best interests of the children were not being met. He sought to establish that because the father would not comply with these orders, then the children should be relocated to Town X to give effect to the contact order.
Accordingly, the case was not a typical case about relocation of a parent because the children had already been relocated to Adelaide and court orders made to reflect this.
Federal Magistrates Court order made 26 February 2013
An order was made in the Federal Magistrates Court on
26 February 2013 transferring the proceedings to the Melbourne Registry of the Family Court under s 39 of the Federal Magistrates Act 1999 (Cth).
An order was also made for the children to be represented by an Independent Children’s Lawyer.
The orders confirmed the orders made on 12 September 2011, but specifically provided for the children to spend time with the maternal grandfather and B in Town X:
·from 5.00 pm Friday, 8 March until 10.00 am Monday, 11 March 2013; and
·from 5.00 pm on 12 April until 10.00 am on 28 April 2013.
On 8 March 2013 the father met the maternal grandfather in the McDonalds car park in Town X in accordance with court orders made on 26 February 2013. The paternal grandmother was in the father’s car with the children. The father told the maternal grandfather that the children did not want to spend time with him. The children remained in the car and T told the maternal grandfather through a slightly opened window that she did not want to go with him. This was in the presence of the father.
The maternal grandfather was accompanied by B who began crying. An argument took place between the father and the maternal grandfather in the presence of B and the children, who were still in the father’s car. The paternal grandmother remained in the car.
The father drove away with the children and they did not spend any time with the maternal grandfather.
On Saturday 13 April 2013, by arrangement with the maternal grandfather, the father met him at the Town X police station. The father told the maternal grandfather that the children did not want to spend time with him. The children did not get out of the car and T told the maternal grandfather that she did not want to go with him. The father drove away with the children.
On the balance of probabilities, I accept the evidence of the maternal grandfather that the children were not encouraged to get out of the car and that the father attended the changeovers with an aggressive and negative attitude. I also accept that the children appeared to be under pressure from the father and were not prepared for contact. I am unable to make a finding about the circumstances of the occasion when the paternal grandparents attended at the police station with the children as the evidence was unclear. However it is clear, and was not in dispute, that the children did not spend time with the maternal grandfather as provided by the court orders.
On 18 May 2013 the father drove the children to Town X and waited at McDonalds until noon to facilitate contact. The maternal grandfather did not attend and sent the father a text message to the effect that he did not want to put the children or B through any more heartache until the matter was settled in court.
On 8 May 2013 in the Family Court at Melbourne, procedural orders were made for the filing of further material and an order was made for the parties and children to attend upon a family consultant, Ms J, for the preparation of a Family Report.
The Independent Children’s Lawyer and the maternal grandfather’s initial application
The maternal grandfather filed an amended application on 24 May 2013 in which he sought the following final orders:
·That the applicant and the respondent father have equal shared parental responsibility for the children T and M.
·That the children live with the applicant and that the children spend time and communicate with the respondent father.
·In the alternative, the maternal grandfather sought orders that the father cause the children to relocate their permanent place of residence to the Town X district and the applicant spend time with and communicate with the children as follows:
§ Each alternate weekend from after school Friday (or 4.00 pm if a non-school day) until the commencement of school the following Monday (or 9.00 am if a non-school day);
§ For one half of all school holidays being the first half in each odd numbered year and the second half in each even numbered year; and
§ For two hours on the occasion of each of the children’s birthdays if the children are in the care of the father at such times as may be agreed but in default of agreement from 4.00 pm to 6.00 pm.
The submission of the Independent Children’s Lawyer at the outset of the trial was that, subject to the testing of the evidence, she supported the recommendations of the family consultant of the “time with arrangements”. The Independent Children’s Lawyer strongly supported overnight time for the maternal grandfather and submitted that there appeared to be no basis for restricting his time to day time only. The Independent Children’s Lawyer also strongly supported the recommendation that the father and the maternal grandfather attend counselling and that changeover occur at a neutral venue of a contact centre.
The Independent Children’s Lawyer was satisfied that the adoption of this particular course of action was in the best interests of the children. She did not make any submissions about any views expressed by the children and was not acting on instructions from the children having regard to their relatively young ages.
Final application of the Independent Children’s Lawyer and the maternal grandfather
At the conclusion of the trial a document entitled ‘Minute of final orders proposed by the Independent Children’s Lawyer and the applicant’ (“the Minute”) was handed to the Court. The Minute detailed the orders proposed by both the Independent Children’s Lawyer and the maternal grandfather. The proposed orders were not consented to by the father.
The Minute provided for a number of alternatives and sought final orders that the father cause the children T and M to relocate their permanent place of residence to the Town X district no further than 50 kilometres radius from the Town X police station within one week of the conclusion of the South Australian school term three 2013, and that the maternal grandfather spend time and communicate with the children as follows:
·During school term, each alternate weekend from after school Friday (or 4.00 pm if a non-school day) until the commencement of school the following Monday (or 9.00 am if a non-school day), such time to be suspended during school holiday periods and recommence on the first Friday after the resumption of the school term;
·For one half of all school holidays being the first half in each odd-numbered year and the second half in each even-numbered year;
·For two hours on the occasion of each of the children’s birthdays if the children are in the care of the father at such times as may be agreed but in default of agreement from 4.00 pm to 6.00 pm;
·By way of Skype or similar communication if the children are in the father’s care, such times by agreement but in default of agreement each Tuesday from 6.30 pm until 7.00 pm with each party to facilitate such communication; and
·By telephone if the children are in the father’s care, such times by agreement but in default of agreement each Thursday from 6.30 pm until 7.00 pm; with the maternal grandfather to telephone the father’s telephone and the father to facilitate.
In default of the father’s compliance with the relocation of the children, the Independent Children’s Lawyer and the maternal grandfather sought orders that the children live with the maternal grandfather and that he have sole parental responsibility for them. They otherwise sought orders that the children spend time and communicate with the father.
In default of the father’s compliance with the relocation or the children failing to relocate, the Independent Children’s Lawyer and the maternal grandfather sought a Recovery Order under s 67Q of the Family Law Act 1975 (Cth) (“the Act”) to recover the children and deliver them to the maternal grandfather.
The Minute proposed that for the purposes of handover of the children, the parties attend at the M Contact Centre, Town X, unless otherwise agreed in writing between the parties.
The Minute proposed by the maternal grandfather and the Independent Children’s Lawyer also sought a number of other proposed orders for provision of information in relation to the children, for the parties to attend upon counselling, for the parties to inform the other in the event of a medical emergency, for the provision of contact details and for the Independent Children’s Lawyer to be discharged one month after the making of these orders.
The father’s response
The father sought the following orders at trial:
·That the children live with him in Adelaide;
·That the father have sole parental responsibility for the children;
·That the maternal grandfather spend time with the children for:
(a)one weekend every school term;
(b)five days in each short school holiday; and
(c)five days in the first half of the Christmas holidays and five days in the second half of the Christmas school holidays;
Noting that the children will not spend overnight time at the home of the maternal grandfather until December 2013.
·That all handovers not in Adelaide shall be at the X Contact Service;
·That the maternal grandfather be present at all times during periods when the children are in his care, noting that the maternal grandfather will supervise all time between the child B and the children;
·That the maternal grandfather shall ensure that the child B continues to attend on Mr N until such time as Mr N considers that such attendance is no longer necessary and, at that time, Mr N shall prepare a report in relation to B’s mental health and the maternal grandfather shall ensure that the same is furnished to the father;
·That during those periods when the children are not spending time with the maternal grandfather, the maternal grandfather shall be entitled (together with B and other members of the maternal family) to contact the children via telephone or Skype at least twice a week at times to be agreed but in default of agreement between 6:30 pm and 7:30 pm on each Tuesday and Thursday;
·That during any period when the children are spending time with the maternal grandfather, the father shall be entitled to contact the children via telephone or Skype at least twice during any five-day period and at least once during any weekend period via telephone or Skype at times to be agreed but in default of agreement between 6:30 pm and 7.30 pm on Saturday (if weekend time) and between 6.30 pm and 7.30 pm on Tuesday and Thursday (if during school holiday time);
·That the parties be restrained and injunctions granted restraining each of them from denigrating the other to or in the presence of the children or allowing any other person to do so;
·That the party be restrained and injunctions granted restraining each of them from discussing these proceedings or any materials filed in these proceedings with the children or allowing any other person to do so;
·That the father advise the maternal grandfather of any medical emergency relating to the children; and
·That the Court make an order that the parties not file any further applications for parenting orders in relation to the children without leave of the Court.
Material relied upon
The material relied upon by the parties is annexed to this judgment at Annexure 1.
Findings on the Issues
I have considered the fact that an order was made by consent of the parties in September 2011 where the father was given sole parental responsibility for the children and was responsible for their day to day care and education. An order was also made for the father to relocate to Adelaide. These orders need not be disturbed.
I find that since that order was made, the maternal grandfather has not had meaningful contact with the children, in particular since August 2012. The father has been unable to effect changeover and facilitate contact since interim orders were made on 26 February 2013 in the Federal Magistrates Court.
Because of the issues around spending time with the maternal grandfather, I am satisfied that there is ongoing conflict between the parties and that there are therefore a combination of factors and changed circumstances which required consideration afresh of how the welfare of the children should best be served.[1]
[1] Rice & Asplund (1979) FLC 90-725.
With whom and where should the children live?
One of the issues in this case is whether the children should remain living in Adelaide or whether they should return to the Town X area, where they previously lived.
The children are presently living in Adelaide with the father. It is the maternal grandfather’s application that the children return to live in the Town X area.
The maternal grandfather’s counsel argued that the father has no concrete ties to Adelaide, whilst in Town X the father owns a home, has portability of employment and capacity to earn and that the children have connections with the school and are familiar with the area, have established peer group friendships and have the emotional supports of the extended maternal family and their half-sister B. This argument was supported by the Independent Children’s Lawyer.
Whilst I accept that there is familiarity for the children in Town X and that the father was previously employed in Town X, any connections may not be so easily re-established having regard to the two year period that the children and father have been resident in Adelaide.
I am also satisfied on the evidence of the father, that the children have developed recreational interests in Adelaide, including tennis and football. The children also have connections with their local church. I accept the father’s evidence that a greater range of activities are available in Adelaide than in Town X. I also accept the father’s evidence that the children have developed and maintained friendships in Adelaide.
I do not accept the argument of the maternal grandfather that the father has no ties to Adelaide as the father has the support of his brother and has established his employment there. I accept that there are practical considerations for the father of the children in relocating in terms of the father finding alternate and suitable accommodation and new employment and schooling for the children.
The evidence relied upon by the applicant maternal grandfather was focussed on the alleviation of B’s grief at separation from the children and the convenience for the maternal family of having the children in close proximity to participate in weekly family gatherings and celebrations. This overlooked the best interests of the children T and M in the ties that the children have made with their friends, activities and school in Adelaide over the last two years. It also overlooked the impact of any change of living upon their relationship with their father should they be separated from him and the practical financial and emotional impact upon their father given the history of conflict between the parties. Any forced relocation of the father would obviously intensify that conflict and would be unlikely to improve the relationship. This would undoubtedly adversely impact upon the children and may also adversely affect their relationship with their maternal grandfather.
I am not satisfied that the father would have appropriate accommodation or employment in Town X. Although the father has a residence in Town X, it is being used by tenants of the paternal grandparents and requires some maintenance. I accept the evidence of the father that this accommodation is a “fraction of the size” of where he is living in Adelaide and has no real backyard. The father stated that the children would have to share a room and that they would be uncomfortable. The father also stated that he cannot afford to stay there because his parents are paying for the unit and he is waiting for the market to improve to sell it.
The maternal grandfather conceded that the children appeared settled and doing well in Adelaide and I find that this is so.
I am satisfied on the evidence of the family consultant, Ms J that the children have a warm and loving relationship with their father and that they have settled well in Adelaide. There is no evidence that any time spent with the maternal grandfather and the children’s half-sister would interfere with or detract from that relationship. On the evidence of the family consultant, even if the allegations of abuse of the father by members of the maternal grandfather’s household claimed by the father were true, the children would not be seriously affected because they have the experience of living with their father.
There is also no evidence that the conflict between the father and the maternal grandfather would be reduced if the children were relocated from Adelaide.
Evidence of the family consultant
It was the observation of the family consultant, Ms J, that the children have “warm and close relationships” with their father. The family consultant recommended that the father have sole parental responsibility for the children.
Significantly, the family consultant was of the opinion that the children should live with their father in Adelaide because they had been through far too much trauma and suffering. The family consultant stated that the children are settled in Adelaide and a change in living arrangements or location would in her view cause the children to suffer further grief and loss given that they now identify strongly with their father as their ongoing carer.
There was some confusion in the answers given in cross examination of the family consultant by the applicant about her recommendation if the Court concluded that the father would not comply with or facilitate contact orders in favour of the maternal grandfather. However, the family consultant was clear that she did not agree with the alternative suggested to her of removing the children from the care of the father if he failed to comply with contact orders.
In cross-examination by counsel for the father, when asked about any danger for M in relocation back to Town X, the family consultant said that “the children have been through enough and they don’t need any further major changes happening in their life”.
The family consultant said that any relocation of the children to Town X with their father could be a third traumatic experience even though it was a familiar place and their paternal grandparents live not far from Town X. She stated that a return would not be as traumatic as the relocation to Adelaide but it would be another major change. The family consultant noted that the success of any relocation would depend on how the father was affected, his attitude and how he managed the relocation. It was the family consultant’s evidence that if the father managed well, then it would be more than likely that the children would also manage the relocation. However, the family consultant thought it best to avoid a further change if that was possible for the children.
I accept the evidence of the family consultant that there should be no change to the residence of the children with their father in Adelaide. I find that it would not be in the best interests of the children to return to live in Town X.
Evidence of the maternal grandfather’s wife
The wife of the maternal grandfather, Mrs Brecht, supported the maternal grandfather’s application.
I found the evidence of the wife of the maternal grandfather to be unrealistic in terms of her assertions that the children could reside with the maternal grandparents on a full time basis. This is due to the maternal grandmother’s evidence of the arrangements that are currently in place for the child B and her own children who are aged 16, 15, and 12 years. I accept that the maternal grandparents reside in a four bedroom home, with a caravan for their 16 year old daughter. There would however be challenging changes for T and M in sharing bedrooms with their older relatives on a permanent basis.
Mrs Brecht also did not seem to consider the inconvenience and impact upon her own children should T and M reside in the maternal grandparents’ household on a permanent basis. I have no doubt that she is willing to care for the children but I regard her evidence as optimistic at best, in terms of her ability to cope with the children permanently.
Mrs Brecht conceded in her affidavit sworn 28 May 2013 that she suffered from a bipolar spectrum disorder for the last nine to ten years. In early April 2011 and in June 2012, Mrs Brecht was hospitalised for depression. She testified that her symptoms are triggered by life stressors but that she is on medication and can recognise and identify stressors which adversely impact on her illness so that she can seek treatment before it becomes debilitating.
I consider that Mrs Brecht would appropriately support the maternal grandfather spending time with the children in school holidays and on weekends. This is because of the other supports in the extended family that she referred to in her evidence and her obvious concern for the welfare of the children.
Evidence of the maternal grandmother
The maternal grandmother of the children, Ms A Brecht, swore an affidavit dated 30 May 2013. She is the former wife of the maternal grandfather. They were divorced in 1995, but the maternal grandmother gave evidence that they have a cooperative and friendly relationship. She supported the maternal grandfather’s application.
The maternal grandmother gave evidence that she has had a relationship with the children since they were born and that until the death of their mother, she saw them on a weekly basis. After the children were relocated to Adelaide in early 2011 the maternal grandmother did not see the children again until September 2011 when some contact was resumed.
The maternal grandmother’s evidence confirmed that the children had a close and loving relationship with their half-sister B.
The maternal grandmother was aware that the maternal grandfather’s wife had a short period of mental ill health in dealing with the terminal illness of the children’s mother. She stated that the maternal grandfather’s wife quickly overcame these problems and she had no concerns about her care of her own children, B or of the children T and M.
Evidence of the paternal grandmother
The paternal grandmother, Ms James, who had a relationship with the children since they were born, gave evidence at the trial that she knew about the court orders for the maternal grandfather to spend time with the children.
In the paternal grandmother’s evidence in the trial, she conceded that when the father relocated to Adelaide that she had been aware that he was considering the move for some time. She conceded that she did not try to talk him out of it and that she knew that the father had taken the children to live with her other son Mr V. She also conceded that she had been to stay with Mr V numerous times in Adelaide. She conceded that when the maternal grandfather asked her for Mr V’s address soon after the children left, she would not tell him. The paternal grandmother stated that she did this because she wanted the father to have time to settle down with the children and establish a routine and normal lifestyle.
Conclusion about with whom and where the children should live
I note that the case for relocation of the children submitted by the maternal grandfather and the Independent Children’s Lawyer is not supported by the recommendations and evidence of the family consultant.
I find that the children should continue to live with their father in Adelaide and that he should have the sole parental responsibility for them.
Is it in the best interests of the children to have a meaningful relationship and spend time with the maternal grandfather and consequently their half-sister B?
Evidence of the family consultant
I accept the evidence of the family consultant that the children “continue to have warm and close relationships” with the maternal grandfather, his wife and their half-sister B.[2] The family consultant pointed out that, considering the children have spent no time with the maternal grandfather, his wife and B since August 2012, they were able to re-engage with them very quickly with no visible inhibitions about doing so when they were not in sight of the father.
[2] Family Report of Ms J dated 1 July 2013 at paragraph 75.
The family consultant noted that there was no indication at all of the children not wanting to spend time with the maternal grandfather, his wife and B. However, she noted that after the observation session concluded and as soon as the children came within sight of the father, they withdrew from the maternal grandfather and did not acknowledge him as he called out goodbye to them.
I accept the opinion of the family consultant that the children are “very caught” in the middle of the conflict between their father and their maternal grandfather and that because they live with their father, the children are not prepared to “go against him” in acknowledging the maternal grandfather in the presence of their father.
I accept the opinion of the family consultant that the father works hard to meet the intellectual needs and day to day emotional needs of the children but that their overall needs are not being met because of the continuing conflict between him and the maternal grandfather. It was Ms J’s view that sooner or later, the children will suffer emotional effects as a result of the animosity.
In cross-examination during the trial, the family consultant said that “it is quite possible they may feel angry towards the father for not facilitating the relationship” when referring to the long-term effects on the children of the maternal family relationships not being sustained, nourished and maintained. Under cross-examination by the applicant, it was the view of the family consultant that, particularly through the teenage years, the very emotional issues including issues for the children around their mother, their half-sister and their father and why he did not promote a continuing relationship with them would be a problem.
The family consultant stated that it is significant that the children gave no indication that they were in fear or had cause for concern about being in the company of their maternal grandfather and their half-sister, whilst the father consistently maintained that the children were abused and bullied in the maternal grandfather’s home.
I accept the family consultant’s recommendation that the children have telephone communication with the maternal grandfather and their half-sister.
I also accept the recommendation of Ms J that the children spend time with the maternal grandfather and his family, including B, in Town X two weekends a school term and for half of all school term holidays and for two weeks in the long summer school holidays. It is also appropriate, as the family consultant recommended, that the children have telephone communication with the father during their stay with the maternal grandfather. I accept that this should be limited to once a weekend but at least once a week during the holidays.
I also accept the recommendation of the family consultant that the maternal grandfather spend time with the children in Adelaide provided he notify the father, with 21 days prior notice, and that the time be limited to twice every school term.
The family consultant’s recommendation that changeover must take place at the X Contact Service with written communication is unfortunately the only reasonable means of facilitating changeover having regard to the traumatic history of the recent attempts at handover in the police station and at McDonalds in 2013.
I accept the recommendation of the family consultant that both parties should have counselling. Both parties have indicated a preparedness to attend counselling at D Psychology Service, allowing for telephone counselling for the father. It is clearly in the best interests of the children for the father to participate in counselling in the future.
I accept the recommendation of the family consultant that all communication from the children to their father when in the maternal grandfather’s household be made from a room of their own with no other parties present and that both the father and maternal grandfather advise the other of any serious issues involving the children while they are in their care.
I accept the recommendation of the family consultant that the maternal grandfather take day to day responsibility for the children while they are spending time with him but that when necessary this might be delegated by him to a responsible adult.
I accept the recommendation of the family consultant that the father give the children “emotional permission” to spend time with their maternal grandfather and encourage, support and facilitate them to do this without any negativity being passed on to them. She recommended that the father reassure the children that they need to have ongoing relationships with their maternal grandfather and their half-sister B.
I am satisfied on all the evidence, but in particular the evidence of the family consultant, that it is in the best interests of the children to have a meaningful relationship and spend time with the maternal grandfather and B.
Are the children at risk spending overnight time with the maternal grandfather, given that the child B is residing in the same household?
A central issue in the trial was whether the child B would pose a risk to the children whilst they are in the maternal grandfather’s care. This concern was raised primarily by the father in relation to B’s mental health, self-harming issues and B’s instability in terms of where she was living.
Because B lives with the maternal grandfather, the children will necessarily spend time with their half-sister in the event that they are spending time with him.
Evidence of the child B’s counsellor
The child B has been treated by Mr N, a registered psychologist in Town X.
Mr N’s affidavit sworn 20 February 2013 included a report dated
12 February 2013 of his observations and opinions in relation to B.
Mr N’s report disclosed that he had been working with B since March 2011 to address a myriad of family related issues. His report did not mention any concern about B’s self-harming behaviours.
The father subpoenaed Mr N’s notes for the trial and the notes were admitted into evidence by agreement of the parties as Exhibit A. Mr N was cross-examined during the trial about those notes.
Mr N reported that one of the key concerns for B was having access to her half-siblings, T and M, and that the last time she had seen them was in August 2012. For a period of six months she had been attending the designated location for handover, hoping to see them with her grandfather but she was saddened and very depressed because the children had not arrived.
Mr N reported that B resided with her grandfather’s family and that this had created stability. He reported that the maternal grandfather’s home is filled with love and unconditional support for her. Mr N reported that the trauma B had experienced with the loss of her mother was further compounded by the loss of her two half-siblings.[3]
[3] Report dated 12 February 2013, annexed to Mr N’s affidavit sworn 20 February 2013.
Mr N described B as being troubled with self-image problems, self-doubt and being concerned about whether she was the cause or reason behind why her brother and sister cannot see her. He reported that she has begun to see her plight as “hopeless” and that he is working on the concept of hope that her half-siblings will eventually get to see her again.
Mr N recommended that B have scheduled ongoing personal contact with her half-siblings, the opportunity to telephone or contact them via other forms of technology such as Skype on a regular basis, and that she spend time with her half-siblings on important occasions such as birthdays, Christmas and the anniversary of their mother’s death. He also recommended that B share and experience gift giving with the children on special occasions.
Mr N concluded in his report that a lack of resolution will only add to the cumulative ongoing grief B feels on a daily basis[4].
[4] Report dated 12 February 2013, annexed to Mr N’s affidavit sworn 20 February 2013.
Counsel for the father of the children cross-examined Mr N about his notes and suggested that they indicated that B had difficulty with her father Mr P. Mr N disagreed and gave evidence that there was a solid relationship between B and her father and that her father and the maternal grandfather had collaborated very well. Mr N pointed out that there may have been a time when B had difficulty with her father’s partner Ms C but that this was not unusual or irregular for a blended family. Mr N stated that one of the issues was whether B lived with her father and that this issue had been largely resolved.
Mr N agreed that B had struggled with emotional issues when she resided with her biological grandmother shortly after the death of her mother, and that she needed one home where life could be stabilised which was ultimately decided by her, to be the home of her maternal grandfather.
Mr N was questioned about the issue of “house hopping” referred to in his notes. Mr N said that this had been an extra issue but it was easily remedied and that B’s family life was stable, apart from this situation being unresolved in relation to her contact with her half-siblings.
Mr N was cross-examined about the timing of B’s self-harming behaviour. He indicated that this represented the beginning of her thinking “am I being rejected by my two siblings?” when access was refused at the pickup point.
Mr N conceded that he was very concerned about drawings by B about wanting to shoot herself and explained that they were not referred to in his report because when he investigated, there was “no intent, no plan and it was purely a cry for help”. It was his opinion that this was not unusual for teenagers with environmental pressures. Mr N confirmed that he regarded the environmental pressures on B as absolutely minimal as she had a permanent residence and the support of her family. He stated that her poor self-image was purely and directly as a result of not having access to her
half-siblings with whom she grew up.
When questioned about whether B ever made reference to wanting to shoot the father of the children, he stated that she had never made such a reference to him.
In reference to his notes which referred to suicide, Mr N stated that there was “no risk” and “no plan”.[5] The first time that he had seen two scratches on B’s arm was on 27 February 2013 when he agreed that her condition had seemed to deteriorate and that she was angry about not seeing the children.
Mr N agreed that he told the maternal grandfather to monitor her closely and ensure that her home life was as stable as possible.
[5] Exhibit A - Notes of Mr N in relation to the child B at page 68.
Mr N also noticed scratches on B’s arm after there had been an incident at the police station where the children had not been handed over to the maternal grandfather for the purposes of spend time with arrangements and he had noted this on 26 April 2013.[6] Mr N stated that the scratches on B’s arm were not severe but he was not going to make light of it. Mr N stated that B had expected “to hug and hold her sister and brother” but did not get the opportunity. She was quite traumatised and did not want to discuss the self-harm but reported to him that she did not get to see the children and she started to shut down and cry a lot.
[6] Exhibit A - Notes of Mr N in relation to the child B at page 70.
Mr N also agreed with notations he had made about B in May 2013 where he had written “abusive” and “vulgar”. He stated that his note was referring to swearing and that B needed to be reined in and disciplined because she was still grieving. He stated that her grandfather and father responded appropriately and that she was grieving for the loss of her mother, half-siblings and life as she knew it. He said that B felt a sense of hopelessness towards the situation because she had been raised with her half-siblings and mother and her situation had changed overnight.
Mr N stated that the chronicity of the situation had escalated B’s grief. He reported that B had never said that she is solely responsible for the children but she took a more active role with the children when her mother had cancer. At some stage she made a commitment to look after her half-siblings. Mr N stated that he had not done anything to moderate that view. He conceded that he had discussed the court process with B to give her some hope but emphasised that he told her he knew nothing about the court system.
It was Mr N’s opinion that B should spend “regular ongoing” and “not rare and fleeting time” with the children. He denied forming any view about who was responsible for the lack of contact with her half-siblings.
Mr N agreed that he did not know the children T and M and could not give an opinion as to their wellbeing.
When cross-examined by the Independent Children’s Lawyer, Mr N described B as bright, articulate and devoted to a sense of family which was deeply embedded in her psyche. He stated that the concept of family is very important to B.
When questioned about his professional opinion in relation to whether there was any risk to the children for them to spend time with their half-sister, he responded “None whatsoever. No”.
It was Mr N’s expectation that B would continue to see him in the future if needed.
In re-examination Mr N also stated that B only wants to “connect with her half-siblings lifelong” and she feels “less than complete without them.”
Evidence of the maternal grandfather about the child B
The effect of the evidence of the maternal grandfather was that B desperately wants to see her half-siblings and that she has been badly affected by the lack of contact and the occasions where she has anticipated seeing the children and they have not arrived.
The maternal grandfather was aware that B had self-harmed with minor cuts and that he had become concerned about her drawings about hanging herself.
The maternal grandfather had taken B for professional treatment by psychologist, Mr N, who had told him that B would require long term and ongoing intervention. He agreed that there had been a cessation of treatment from September 2011 until December 2012. The maternal grandfather gave evidence that when he believes that B needs assistance he attends Mr N with B.
The maternal grandfather conceded that at one stage, B was residing with her maternal grandmother, but that she had never been forced to go anywhere. He said that B was grieving for her mother and the lack of contact with her half-brother and sister.
He agreed that B had also stayed with her father, Mr P, but that his household was very small and B had to share with a younger step-sister. The maternal grandfather denied that B’s father could not cope with B.
The maternal grandfather was uncertain about the dates B attended upon
Mr N but agreed that she started attending again in October 2012. He agreed that he was very concerned when he saw the drawings that B had left on his desk and he took her to Mr N. The maternal grandfather conceded that Mr N told him that B needed stability in her life. The maternal grandfather gave evidence that in discussions with Mr N, and in consultation with B, an agreement was reached that B would reside with the maternal grandfather.
The maternal grandfather agreed that he had discussed with B the fact that there was a court process for her to spend time with the children but denied discussing any affidavit material with her. He agreed that B knew about the court proceedings but stated that this was to give her hope.
It was the maternal grandfather’s view that the lack of contact between B and the children is a major factor that had contributed to B’s self-harming behaviour which had not occurred when she had contact with the children. He believed that B would benefit from contact with the children. He did not regard her as any risk to the children.
Evidence of maternal grandmother about the child B
The maternal grandmother gave evidence that B was very happy in the company of the children during any visits which she observed, but that B’s behaviour and demeanour were consistent with her being very sad when the contact with her half-siblings had ceased. She stated that B would repeatedly ask her why she cannot see the children and would become more “withdrawn and less chatty and engaged with adults around her”.[7] She stated that B expressed how she had missed her brother and sister.
[7] Affidavit of maternal grandmother sworn 30 May 2013, at paragraph 32.
The maternal grandmother was aware that B was having counselling to assist her with the difficulties she was experiencing in her life.
The maternal grandmother had recalled seeing some drawings of a girl hanging which had been made by B and when she asked her about them, B had said “I don’t want to be here anymore”. The maternal grandmother had also observed “slice marks” on B on two occasions towards the end of last year and in May 2013. The maternal grandmother gave evidence that she spoke with B’s father, Mr P, about it and she was aware from the maternal grandfather that Mr N had told him of the need to monitor B. She agreed that she had a plan to monitor B but she could not recall the conversation that she had had with the maternal grandfather.
In respect of the father’s contention that the children have been bullied harassed and abused in the household of the maternal grandfather, this principle has no relevance because of my finding that there is no foundation for these allegations.
Section 60B: Objects of Part and principles underlying it
The objects of the Act to ensure the best interests of children are set out under
s 60B(1), including:
(b) protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them fulfil their potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Counsel for the maternal grandfather and the Independent Children’s Lawyer submitted that s 60B(1)(c) of the Act is relevant. This refers to ensuring that the children receive adequate and proper parenting to help them achieve their full potential. It was submitted that proper parenting cannot be received from the father because he will not facilitate the relationship with the mother’s side of the family. I do not accept that submission for the reasons I have previously stated.
Counsel for the maternal grandfather and the Independent Children’s Lawyer further submitted that s 60B(1)(d) of the Act is relevant as the father is not fulfilling his duty to meet the responsibilities in relation to the welfare of the children, as demonstrated by continuing breaches of the orders. They submitted that the father is unable to provide the children with the required emotional development, as outlined by Ms J. I accept that the father has breached court orders as I have outlined, but cannot find that it is in the best interests of the children to make all of the orders sought by the maternal grandfather.
As I have stated previously I am not satisfied that the father will not facilitate the relationship with the maternal grandfather. The maternal grandfather’s insistence on spending overnight time with the children has been a source of concern for the father. I consider that the time spent by the children with the maternal grandfather should be increased as recommended by the family consultant but should begin with daytime contact only over one weekend. This will allow for time for the children to adjust to overnight stays and for counselling to take place with the father to ensure that the children are appropriately prepared.
I consider that the first resumption of contact with the maternal grandfather should take place on the first weekend after the beginning of term four 2013, on one day between 10.00 am and 6.00 pm and failing agreement between the parties that day be Sunday.
The children should then spend overnight time with the maternal grandfather and their half-sister B in Town X for two weekends of the last school term of 2013, failing agreement between the parties, commencing on the fourth weekend and eighth weekend. Because of the travelling time between Adelaide and Town X, I consider that the overnight time should, failing agreement between the parties be limited to one night on weekends during school term.
I agree with the recommendations of the family consultant that the children should spend one five-day period during each short term school holiday and two five-day periods of the long school holidays with the maternal grandfather commencing in December 2013.
Additional Considerations
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Independent Children’s Lawyer has not ascertained the wishes of the children having regard to their young ages.
I have relied upon the reports and evidence of the family consultant about the views of the children (s 60CD of the Act) and find that they are not clear because of their reluctance to express a view. The family consultant concluded that little weight should be given to the views of the children.
In the report of the family consultant “there was no indication at all of the children not wanting to be with” the maternal grandfather. I accept the evidence that the children did not want to go with the maternal grandfather on the most recent occasions in 2013 when changeover did not take place. I have concluded that the children were distressed because of the conflict between their father and the maternal grandfather and so did not want to get out the car. In R and R: Children’s wishes (2000) FLC 93-000 at [39], the Full Court of the Family Court emphasised that proper weight is to be given to children’s wishes but this does not mean that they should not be departed from.
The children T and M are eight and seven years old respectively. Given the ages of the children and their awareness of the negative attitude of their father towards the Brecht family, the children’s views are not relied upon for the purposes of my determination.
I have relied upon the evidence of the family consultant. In cross-examination by counsel for the maternal grandfather the family consultant stated:
·It was very sad that despite the two previous family reports she has made about how the children feel about their maternal grandfather, the father does not understand that there may be other reasons for what the children say to him and that they are caught between two adults and will say what the adult wants to hear.
·The children are left in a terrible position about their wishes and the implementation of changeover because they will not say anything in favour of the maternal grandfather in front of their father.
·
The changeover for the children has been horrific and that
the father had an opportunity to try to resolve some of these issues before the changeover because the children being six and eight need guidance and assistance. The effect of her evidence was that the father should have prepared the children for the changeovers given their ages, and the difficulty is that the father does not accept that the children have enjoyed being with their maternal grandfather and in his household, despite her reports.
Both children had difficulties expressing their feelings because as the family consultant said in cross-examination, “[The child T] is very aware of how her father feels about [the maternal grandfather] and his family. [T] of course will not do anything that may put her father offside”. Ms J stated in her family report that T was not able to express a view about her feelings of spending time with her maternal grandfather. She pointed out that this has not changed for T since the previous Report was prepared in July 2011 and that this also demonstrates the extent to which T has been affected by the animosity that her father feels towards the maternal grandfather.
I accept the opinion of the family consultant that T does not feel secure enough to trust her father with her feelings about the maternal grandfather because of the conflict. The child M suffered from some confusion about whether he would be returned to his father if he spent time with the maternal grandfather but ultimately said that he was “okay about spending time” with him when he was assured that he would be returned to his father.
I regard the father’s evidence about the children’s wishes as revealing that he has little insight into the effect that his negative attitude towards the Brecht family has had upon the children. It would appear that the last two experiences of attempted changeover were entirely unsuccessful and unsatisfactory because of a lack of preparation and in a context of pending litigation. This should be addressed through counselling and the certainty of court orders where the changeover is conducted at the M Contact Centre in Town X and an appropriate location in Adelaide sourced by the Independent Children’s Lawyer. The involvement of the paternal grandmother for changeover, though well meaning, is likely to be an additional impediment because of the history of conflict between the parties. This was evident in her evidence in Court before me.
Section 60CC(3)(b)(ii): the nature of the relationship of the child with other persons (including any grandparent or other relative of the child); and
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
These considerations are directly relevant to the relationship that the children have with the maternal grandfather and their half-sister B which I have previously outlined.
I am satisfied that the maternal grandfather and B are significant to the care, welfare and development of the children.
I accept the evidence of the maternal grandfather about the importance of his relationship with the children which was confirmed on the evidence of the family consultant. I accept the evidence of the wife of the maternal grandfather, Mrs Brecht, and the maternal grandmother, Ms A Brecht, that the children have a close and loving relationship with B, their maternal grandfather and extended maternal family which has existed since their birth.
The father conceded that the relationship with the maternal grandfather was important.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Section 60CC(3)(e): the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Section 60CC(3)(f): the capacity of:
each of the child’s parents; and
any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
I have taken account of these additional considerations and weighed them carefully.
Whilst the best interests of the children are paramount, they are not the sole or only consideration. The relevance of the statutory principles will depend on the circumstances of the particular case.[15]
[15]AMS v AIF; AIF v AMS (1999) 199 CLR 160; FLC 92-852, per Kirby J.
I have referred to the practical difficulties which include financial costs for the father in relocating to Town X and have placed some weight on those factors including the comments of the family consultant that the reaction of the father to any relocation would impact on the children.
Any separation from their father brought about by a change in their living arrangements if they were relocated to Town X would be particularly traumatic for the children on the evidence of Ms J which I have outlined and which I accept.
The relationship with their half-sister and the maternal grandfather is significant for the emotional needs of the children. This can be appropriately accommodated in the best interests of the children by orders for communication and for spending time with them. I am satisfied that the maternal grandparent has a capacity to provide for the emotional needs of the children based on the recommendations of the family consultant and all of the other evidence which I have previously outlined.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I do not accept that an order for the children to be relocated to Town X would be an order least likely to lead to further proceedings. Such an order is not in the best interests of the children for the reasons I have stated, but is also likely to generate further conflict between the parties leading to further litigation. The maternal grandfather has relied upon a previous order made by consent of the parties on the basis of negotiations in 2011 for a relocation of the children to Town X, in the event of a default by the father. Given the evidence in the trial, the history of the parties and the time that has now elapsed since that order was made, it is now completely inappropriate to enforce such an order.
I am satisfied that orders which provide for the children to live with the father in Adelaide, a neutral changeover location, the continued assistance of the Independent Children’s Lawyer and for further counselling of the parties, will result in an order that is least likely to lead to the institution of further proceedings in relation to the children.
I reject the submission on behalf of the father that an order be made under rule 11.04 of the Family Law Rules 2004 (Cth) that “the parties not file any further applications for parenting orders in relation to the children without leave of the court”. Counsel for the father cited the case of Coleman & Hindle and Ors [2010] FamCA 319 in support of the proposition that such an order can be made on the Court’s own initiative.
Rule 11.04 has been repealed. Schedule 7 of the Rules sets out the Rules for vexatious proceedings immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012. I am not satisfied having regard to the conduct of the father in failing to comply with the court orders of September 2011, that the maternal grandfather is a vexatious litigant or that he has made an application devoid of merit.
Authorities Cited
Counsel for the maternal grandfather referred in a general way to the decision of AMS v AIF; AIF v AMS (1999) 199 CLR 160; FLC 92-852 submitting that the case supported the contention that the children should be returned to Town X because there is deemed to be a benefit to them in the relocation.
A key principle referred to in that case was that whilst the highest priority must be given to the children’s welfare and best interests, this does not expel every other relevant interest from receiving its due weight. That case is distinguishable on its facts because it involved competing considerations between parents rather than between a parent and a grandparent. The Court pointed out that the focus should remain on the child rather than on the parents where relocation is in issue. In that case, it was emphasised that the relevance and weight to be afforded to statutory principles will depend upon the circumstances of the particular case. In this case, as I have outlined previously, I accept the evidence of the family consultant, that relocation of the children to Town X would be a third traumatic experience and would not be in their best interests.
Counsel for the maternal grandfather also referred to the decision of Goode and Goode (2006) FLC 93-286 for general principles. Counsel submitted that should the Court conclude that the children should live with the maternal grandfather because the father will not facilitate a meaningful relationship for the children with him, that the Court would be satisfied on the evidence of the family consultant that the maternal grandfather would facilitate a meaningful relationship with their father. It was submitted that on the evidence, the maternal grandfather respected the rights of the father. As I have outlined, for other reasons I am not satisfied that the children should be ordered to return to Town X.
Counsel for the father relied on a number of cases in his closing submission. I have already referred to Donnell & Dovey (2010) 42 FamLR 559. Counsel for the maternal grandfather submitted that this case was not relevant because it was about an international relocation.
Counsel for the father also relied on the decision of Heath & Hemming (No 2) [2011] FamCA 749 which involved an international relocation and referred to the principles to be applied in relocation cases between parents.
There is guidance in the cases about the principles applicable where a parent is seeking to relocate which are of course useful in general terms but the facts of this case are different. Each case must be determined having regard to its unique and often complex factual matrix.
Whilst I have taken account of the authorities cited to me by both counsel, given the significant factual differences between the cited cases and the facts of the case before me, the utility of those cases is limited to general principles of law.
I certify that the preceding two hundred and seventy four (274) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 8 October 2013.
Associate:
Date: 8 October 2013
ANNEXURE 1
The applicant maternal grandfather
The applicant maternal grandfather relied upon the following documents:
· Initiating Application filed 4 February 2013;
· Amended Initiating Application filed 24 May 2013;
· Trial affidavit of the maternal grandfather sworn 29 April 2013;
· Affidavit of the maternal grandfather sworn 24 June 2013.
· Affidavit of Mr N sworn 20 February 2013;
· Affidavit of Mr P sworn 28 May 2013;
· Affidavit of maternal grandfather’s wife sworn 28 May 2013; and
· Affidavit of the maternal grandmother sworn 30 May 2013.
The respondent father
The father’s counsel provided the Court with a document at trial which indicated that the father relied upon the following documents:
· Trial affidavit of the father sworn 10 June 2013;
· Trial affidavit of the paternal grandmother sworn 10 June 2013.
· Family reports dated 15 July 2011 and 1 July 2013; and
· Exhibit A - Subpoenaed material being file notes of the half-sister’s psychologist Mr N.
Independent Children’s Lawyer
The Independent Children’s Lawyer relied on the following documents:
· Family report of Ms J dated 3 September;
· Family report of Ms J dated 15 July 2011; and
· Family report of Ms J dated 1 July 2013.
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