C & C
[2007] FMCAfam 1
•17 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2007] FMCAfam 1 |
| FAMILY LAW – Children – planned relocation by mother of children aged 13 and 5 from D to C – application of the presumption contained in s.61DA – whether parties should have equal shared parental responsibility for the children – father seeks that the presumption should apply and the mother should be restrained from moving the residence of the children from D and a shared parenting regime remain in place – whether the children can have a meaningful relationship with both parents in the event of the proposed relocation – consideration of concept of freedom of movement – mother has re-partnered and foresees financial and employment prospects for herself and her partner in C – older child expresses a view in favour of relocation – evaluation of parties’ competing proposals. |
| Family Law Act 1975 – ss.60B, 60CC, 61DA, 64B, 65D, 65DAA, 65DAE |
| Goode & Goode [2006] FamCA 1346 U & U [2002] FLC 93-112 B v B [2006] FamCA 1207 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A: Relocation Approach (2000) FLC 93-035 Bolitho & Cohen (2005) FLC 92-224 B v B: Family Law Reform Act (1997) FLC 92-755 D and S V (2003) FLC 93-137 Fragomeli & Fragomeli (1993) FLC 92-393 |
| Applicant: | D M C |
| Respondent: | T V C |
| File number: | DNM 416 of 2003 |
| Judgment of: | Brown FM |
| Hearing dates: | 20 & 21 December 2006 |
| Date of last submission: | 21 December 2006 |
| Delivered at: | Darwin |
| Delivered on: | 17 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Truman |
| Solicitors for the Applicant: | Maleys |
| Counsel for the Respondent: | Ms Farmer |
| Solicitors for the Respondent: | Withnalls |
ORDERS
The parties have equal shared parental responsibility for the children of the marriage S T C born 17 January 1993 and N T C born 2 October 2001 (hereinafter referred to as “the children”).
The children live with the mother.
From after 26 January 2007 the mother be permitted to live with the children in C in the Australian Capital Territory.
The children spend time with the father as follows:
(a)For four weeks of the Australian Capital Territory December/January school holidays in each year so that such four week period includes Christmas Day in 2007 and each alternate year thereafter but does not include Christmas Day in 2008 and each alternate year thereafter;
(b)For the whole of the mid year (June/July) Australian Capital Territory school holiday in 2007 and each such mid year school holiday thereafter;
(c)For either the whole of the end of first term/semester Australian Capital Territory school holiday in each year or the whole of the end of third term/semester Australian Capital Territory school holiday in each year provided the father gives 28 days notice in writing to the mother in respect of which of these holidays he proposes to spend with the children;
(d)At any other times as may be agreed between the parties from time to time.
The parties bear the costs of the air travel necessary for the children to spend time with the father pursuant to orders 4(a) to (c) hereof in equal proportions.
The father communicate with the children by telephone or webcam on two occasions each week at times to be agreed between the parties.
In the event that both parties are in the same location at Christmas the party who is not otherwise entitled to spend time with the children at Christmas pursuant to these orders shall spend time with the children from 6.00pm on 25 December to 6.00pm on 26 December or at such other times as agreed between the parties to ensure that the children spend a significant period of time with that parent during the Christmas period, which is taken to include both Christmas Day and Boxing Day.
The parties provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within two days of such change.
The mother and father each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.
The mother authorise the principal of each school attended by the children from time to time to be sent to the father:
(a)A photocopy of each school report concerning each child;
(b)An order form for each school photograph of each child.
The father be at liberty to attend or visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
The father and mother be restrained and an injunction be granted restraining them from denigrating the other, the other parent’s partner or the other parent’s family or permitting any person in their presence to denigrate the other parent, the other parent’s partner or the other parent’s family to or in the presence of the children.
All outstanding applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 416 of 2003
| D M C |
Applicant
And
| T V C |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns two children S T C born 17 January 1993 and N T C born 2 October 2001. It is a relocation case. D M C, the children’s mother, wants the children to live with her in C. T V C, the children’s father is opposed to the children moving away from D, where he lives and where S and N have lived for all of their lives to date.
The parties in the case, Ms C “the mother” and Mr C “the father”, finally separated in April of 2003. However they remained living in close proximity to one another in suburban D. Since that time there have been a number of cases, in this court, between the parties, regarding the parenting of the children. On 20 April 2004, the parties agreed that S and N should live with each of them in what is commonly called a shared care arrangement, whereby the children spent alternating weeks with each of their parents.
These orders were changed on 6 June 2006. At this stage the parties agreed that the children should live with the mother for two weeks out of three and with the father for the third week. It was also agreed that an arrangement be made whereby the children spent equal periods of the school holidays with each of their parents.
It is common ground between the parties that S has not always spent time with her father in accordance with these various orders and the two have at times had a difficult relationship. The parties have very different views as to why this has been so. From the father’s point of view, the strains in the relationship are typical of the ones that often occur between pubescent girls and their fathers. From the mother’s point of view, the difficulties are indicative of the father’s failings as a parent, particularly his lack of sensitivity for S’s needs. However N has lived consistently with her father and the two undoubtedly have a close and loving relationship.
There is a gap in age of about eight years between S and N. Accordingly the children are at very different developmental levels. S attended high school in 2006 – she has recently finished year eight, whilst N attended child care and kindergarten. For obvious reasons, the children have very different levels of insight into the significance for them of moving away from D. Again, given the differences in their ages and level of cognitive development, the potential move of the children away from their father has different implications for S on the one hand and N on the other. Given her tender years, there is a significant possibility that N will not be able to maintain the current level of intimacy in her relationship with her father, if she moves to C with her mother and Mr C remains living in D.
Towards the end of 2004, the mother met M S through her work at C D U. The mother is a work place assessor and trainer. As I understand matters, a large part of her work is involved in providing vocational training, particularly in regards to the use of computers. Mr S has skill in Information Technology. In late 2005 Mr S decided he wanted to move away from D to pursue career and personal opportunities in T. The announcement of this decision by Mr S led to him and the mother discovering that they had deeper feelings for one another. Mr S abandoned his plans to move to T. The mother and Mr S married on 10 June 2006.
Now the mother and Mr S wish to move to C to establish a business offering computer training, web design and information technology support. They believe C offers opportunities to develop such a business which D lacks. In addition C is close to N, on the south coast of New South Wales, where the mother grew up and where many members of her family live. She also wishes to live closer to her family. Finally, both the mother and Mr S believe that C has more to offer both them and S and N. Simply Mr S and the mother want to explore opportunities which appeal to them in C. They visited C for five days in August of 2006 to explore these opportunities further; otherwise neither has lived in the City for any lengthy period of time.
The mother commenced this current round of proceedings on 22 August 2006, a short time after both she and Mr S had returned from their exploratory visit to C and after she and the father had reached final consent orders in respect of care arrangements for S and N on 6 June 2006. At that stage the mother sought the court’s approval to move the children to C in September of 2006, on the basis that she and Mr S had found immediate employment in C and accommodation to rent there.
The father believes that the mother has not thought through her proposal to move S and N from D, particularly the likely emotional consequences for the children. He is strenuously opposed to the proposal, believing it will inevitably disrupt his currently significant relationships with the children, particularly N. Mr C is a self employed builder. It is his position that it is difficult for him to take long periods of time away from his work. Accordingly, in the event the children do move to C, he is concerned that it will be difficult for him to spend time with them during school holidays. He does not believe the mother has considered how contact arrangements will work if she, S and N do move to C.
In addition, the father is concerned that such a move will significantly disrupt the close relationships the children currently enjoy with members of their paternal family, who also live in D. The children’s paternal grandmother, G C and a paternal aunt and uncle live in close proximity to the father’s home in D. As a result the children presently spend a great deal of time with their grandmother and their other paternal relatives. The children also have several cousins in D.
As a result of all these matters, it is the father’s position that, if the mother does move to C to live, S and N should live with him. However, he anticipates that the mother will not consider moving to live in C without S and N and will rather elect to remain in D, if the court does not allow the children to relocate. If this is the outcome of the case, Mr C seeks to continue the orders made on 6 June 2006. It is his position that there has been no significant change of circumstances since then to justify a departure from these orders. Given his business commitments in D, Mr C does not believe it is financially viable for him to move to C, if the decision of the court is that S and N should live with their mother there.
The mother and Mr S have made it clear that they will not move to C if they are unable to take S and N with them. However they do not think this would be a good outcome for the children. In particularly the mother feels that S has set her heart on moving to C and will be bitterly disappointed if she is unable to move. She has a particularly close relationship with her maternal aunt K, who lives in N.
However, of more significance from the mother’s point of view, is her view that Mr C has a poor attitude to the responsibilities of being a parent, particularly that he drinks to excess at times the children are with him and he has placed too much responsibility on S to take care of N. She further contends the father has been neglectful of S’s emotional needs and this has caused possibly what is an irreparable rift between the two. She is fearful that a similar rift is likely to occur between N and the father in future. As a result of these matters, it is the mother’s position that she is the parent who has been more responsible for meeting the children’s needs, both before and after the parties separated.
It is common ground between the parties that they do not have an easy relationship with one another and find it difficult to communicate effectively with one another. Regardless of the success or otherwise of her application to move away from D with the children, the mother believes the current arrangements for the care of the children are not working and are not in their best interests. Accordingly, the mother contends that, if she compelled to remain living in D, against her and Mr S’s wishes, S and N should live predominantly with her and spend time with their father from time to time. For these reasons, the mother would want the court to significantly amend the orders of 6 June 2006.
The father believes that the mother has overstated her concerns about him and has inappropriately relied upon things told to her second hand by the children about his parenting. He also contends that the mother has overstated the extent of the rift between him and S, which he believes will be mended naturally with time. He is suspicious of a psychologist, Ms Knox, whom the mother had arranged for S to see about her relationship with him. He believes that the mother had an ulterior motive for taking S to see Ms Knox, in particular that it would assist her plans to relocate with the children. In addition the father categorises the mother as a permissive parent. Accordingly he believes that the children will suffer if they are not able to spend regular periods of time with him and be exposed to his more disciplinary based parenting.
As this brief introduction shows, this is a complex case. Because the primary emphasis, in children’s cases, is on the best interests of the children concerned,[1] it is usual for an independent expert’s report to be commissioned by the court, the purpose of which is to investigate the case from the perspective of the children involved. In this way the children’s views and insights may be canvassed independently of the parties concerned and without the necessity for the children themselves to give evidence. It is also possible for an independent and professional viewpoint to be obtained which examines the nature of the important relationships in the lives of the children involved in the case.
[1] See Family Law Act 1975 at section 60CA
Such a report was prepared for this case by a psychologist, Ms Protheroe. She identified a number of areas of complexity in the case. These included the quite different emotional needs of S on the one hand and N on the other. These different needs stemmed from their very different levels of maturity and insight, particularly about the potential move to C but above all from what Ms Protheroe perceived to be significant differences in the nature of their respective relationships with their father.
In her family report, Ms Protheroe made the following recommendations:
“The writer recognises the strength of Ms C and S’s relationship in comparison to that between Mr C and S. Certainly the writer is of the opinion that the latter relationship may be irreparable. Nonetheless, N’s relationship with her parents is of equal importance.
Given the strength of N’s relationship with her father and both parents advocating the children should not be separated, it is my recommendation that Ms C be restrained from relocating with the children. If Ms C chooses to remain in D, the writer recommends that the status quo regarding parenting orders remain.
Based on this assessment, the writer recommends that Mr C seek counselling to re-establish his relationship with S. If, after counselling, the relationship between Mr C and S is considered irretrievable, given her age, there is merit in no longer enforcing S to spend time with Mr C.
It is further recommended that Mr C participate in counselling or attend a generic workshop to enhance his Conflict Resolution skills.
If within six months of a Court Order being made, Mr C has failed to undertake the recommended counselling as outlined [above], the writer considers there would be merit in revisiting the recommendation [above]. In light of this recommendation, the Court may see merit in formalising a review mechanism that would give both Mr C and Ms C reassurance of each party’s individual accountability.”[2]
[2] See Family Report at paragraphs 71 - 75
Considerations pertaining to Mr C’s willingness to attend the counselling with S, as recommended by Ms Protheroe and the likely efficacy of such counselling have loomed large in this case. On 12 December 2006, approximately a month after Ms Protheroe’s report was released and a week prior to the date scheduled for the hearing of the parties’ competing applications, the mother applied to adjourn the trial in order to allow the father and S to attend the recommended counselling. The father opposed the adjournment application, which was ultimately unsuccessful. At this stage it was the father’s ostensible position that he did not believe that this counselling was likely to be very helpful, either to him or S. Accordingly he believed nothing of significance was likely to be gained from postponing the case.
As a result of these matters, it is the mother’s position that the time has now come for the court to revisit Ms Protheroe’s initial recommendation that the court should restrain her from relocating the children from D to C, as the second limb of Ms Protheroe’s recommendations – regarding the counselling between Mr C and S – is now unlikely to be fulfilled. As such, the prognosis for the relationship between Ms C and S being retrieved is poor. Accordingly, it is the mother’s position that considerations regarding S’s best interests should assume greater significance in the court’s deliberation.
As Ms Protheroe’s report makes clear, the interests of S and N are not necessarily homogenous. However neither of the parties seeks that the children should be separated from one another. Relationships between siblings are among the most important of all human relationships. S and N have grown up together. There is nothing to indicate anything other than that the two share a close and loving relationship with one another.
Mr C wishes to be involved in every aspect of S and N’s lives – their sporting activities; their education; their intellectual and social development; as well as having opportunities to just “hang out” with them; – as they grow to maturity. Given N’s tender years, for obvious reasons, these aspirations are more pronounced so far as she is concerned. All involved in the case agree that the father and N have a close and loving relationship with one another and N loves her father very much. At a basic emotional level, Mr C wishes to spend as much time as possible with the children and not confine his relationship with them merely to school holidays and conversations via the telephone or other electronic media. His aspirations are reflected in recent amendments made to the Family Law Act 1975. Clearly it will be very difficult for Mr C to have the kind of relationship he wants with the children, if they live in C and he remains in D.
At this stage it is useful to set out the various outcomes which are available to the court in this case:
·S and N relocate immediately to C with Ms C. Mr C remains in D and orders are made permitting him to spend time with the children in school holidays and communicate with them via the telephone and webcam. This is the mother’s preferred outcome. Significant issues are likely to arise in respect of the costs of the children travelling between C and D in this eventuality and as to the logistics of the father taking time away from his work.
·An order is made preventing the children’s place of residence being changed from D on an indefinite basis and the orders made on 6 June 2006 continue. This is the father’s preferred outcome.
·If she is unable to move with S and N to C, Ms C has indicated she will not move their alone. In this eventuality, the mother would wish the court to revisit the orders of 6 June 2006 in a significant way. She does not believe an outcome whereby the children spend either equal or substantial and significant periods of time with each of their parents is a workable outcome in this case.
·Another outcome is one foreseen in part by Ms Protheroe – that is there is some form of moratorium placed on the mother moving S and N from D in order to ascertain whether the relationship between S and the father can be improved. Another advantage of such a moratorium is that the relationship between N and the father will be more resilient to the consequences of relocation. At such a later stage, N will be more intellectually mature and so will have a greater level of understanding of the nature of her relationship with her father. Her relationship will more easily withstand the rigours of being separated from him.
·Given his long standing personal and economic connections in D, it seems unlikely that Mr C moving in tandem to C with Ms C and Mr S is a feasible outcome in the case.
Each of these outcomes has permutations within it and each has potentially both positive and negative implications for S and N and indeed for the parties themselves, as well as for Mr S. The court is required to examine each of those outcomes, from the perspective of S and N’s interests and determine which of them is likely to serve those interests best. In this, as in all cases involving children, the best interests of the children concerned are the paramount consideration.
However that is not the end to the matters, which the court must consider. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose. Pursuant to rights read by the High Court into the Australian Constitution, Australians have a right to freedom of movement. This right pertains just as much to parents, as to other citizens. At the same time, pursuant to the Family Law Act, children have a right to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term. These principles are frequently difficult to reconcile in relocation cases, and this case is an example of such difficulty.
In essence, the mother and Mr S’s desires to move to C and shape a new life for themselves with S and N are legitimate matters for the court to consider. Accordingly there can be no outcome in this case which will be satisfactory to all the parties in the case and all those who will be affected by the outcome, such as the children’s relatives on both their maternal and paternal sides. The various options available to the court cannot be manipulated, like the surface of a Rubik’s Cube, to reach a perfect result.
Both parties wish to play as large a role as possible in S and N’s lives, as they grow to maturity. At the same time, Ms C wishes to live in C, where she and Mr S believe they will be more financially secure and happy, as they will be pursing career and lifestyle opportunities of their own choosing. Mr C does not wish to move away from D, where he has lived for nearly all his life and where significant members of his family live and most importantly where he has established his business. At the same time, if Ms C feels that she has been compelled to remain living in D because of the father, she will be unhappy and bitterly disposed towards Mr C. Inevitably, regardless of the outcome in this case, one or other of the parties will feel hard done by.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
In U & U[3] Hayne J said:
“What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”
[3] U & U [2002] FLC 93-112 at 89,102
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their children should live, it is the best interests of the children concerned which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the children concerned. It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. However, at the same time, the court cannot overlook the legitimate expectations of a parent, as to where he or she wishes to live in future.
The balancing of these considerations has been described by Warnick J as both “a delicate interplay of concepts” as well as “an imbroglio of principles.”[4] The level of complexity is intensified by the fact that the Commonwealth Parliament has recently passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Accordingly, the law relating to arrangements for the parenting of children is not well settled, particularly in regards to the issue of parental relocation.
[4] See B v B [2006] FamCA 1207 judgment delivered 15 November 2006 at paragraph 1
Applications and documents relied upon
The mother is the applicant in these proceedings, which she commenced on 22 August 2006. She relies upon the following documents:
i)An affidavit of herself filed on 22 August 2006;
ii)A further affidavit of herself filed on 15 December 2006;
iii)A further affidavit of herself filed on 18 December 2006;
iv)An affidavit of her husband M S filed on 15 December 2006.
Ms Knox did not formally give evidence in these proceedings. However her opinions, particularly in regards to the nature of the relationship between S and her father have been significant in the case and were influential so far as the evidence of Ms Protheroe was concerned. Two reports of Ms Knox 24 August 2005 and 4 September 2006 were annexed to the mother’s affidavit of 15 December 2006. No objection was taken to the admission of these reports into evidence. I note of course that Ms Knox herself has not been subjected to cross-examination. I also note that the rules of evidence do not apply to proceedings in this court relating to children, unless the court decides otherwise.[5]
[5] See Family Law Act at section 69ZT
In a minute of orders sought which was handed to the court at the commencement of trial by her counsel, Ms Truman, the mother indicated that she sought the following orders:
“1. That the mother be permitted to move to C.
2.That the children S T C born 17 January 1993 and N T C born 2 October 2001 live with the mother.
3.That the mother be solely responsible for the parental decisions concerning the eduction, medical needs and sporting needs of the said children.
4.That the children spend four consecutive weeks of every Christmas school holidays with the father at times to be negotiated between the parties. The father is responsible for arranging the transportation of the children from C to D. All costs of the children’s transportation shall be met by the father. In the event that agreement can not be reached then the children are to spend time with the father as follows:
i. That the children spend the first half of the Christmas school holidays with the father in 2006 and each alternate year thereafter.
ii. That the children spend the second half of the Christmas school holidays with the father in 2007 and each alternate year thereafter.
5.That the children spend one week of each of the mid term school holidays commencing in April, July and September/October of each school year with the father. The father shall arrange transportation for the children from C to D. All costs of the children’s transportation shall be met by the father.
6.That the father communicate with the children by telephone each week at a time agreed between the parties.
7.That should the parties be in the same city/location on Christmas Day, the children are to spend equal time with each parent. Change over to be at 3pm in the afternoon on Christmas Day from the parent’s residence unless otherwise agreed.
8.That neither party speak negatively about the other to or in the presence of the children.
9.Each party notify the other immediately if either of the children are hospitalised or diagnosed as having a major medical condition.”
As can be seen from this document, the mother has not apparently turned her mind to the orders she would seek if she is not able to move to C with S and N. However in this eventuality, as I understand her position, she would be opposed to a continuation of the existing orders, particularly so far as S is concerned. She would seek orders that would allow S to spend time with her father according to her wishes and would wish the time N spends with her father to be reduced.
It is also the mother’s position that the parties should not have equal shared parental responsibility for S and N. It is her position that the presumption created by section 61DA of the Family Law Act should not apply in this case. In support of her contention she points to the conflictual relationship between the parties and what she contends is the father’s essential disinterest in being involved in making long term decisions regarding the children’s care, welfare and development, particularly in regards to their education, medical needs and sporting interests. This is a major area of contention between the parties.
The father responded to the mother’s application on 5 September 2006. He relies upon the following documents:
i)An affidavit of himself filed on 11 December 2006.
In a minute handed to the court on 21 December 2006 by his counsel Ms Farmer, the father indicated that he sought the following orders:
“1. That the orders made 06 June 2006 be discharged.
2.That the parents have equal shared parental responsibility in relation to the children S T C born on 17 January 1993 and N T C born 02 October 2001.
3.That each parent have sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the children on a day to day basis during periods when the children are living with either of them.
4.That during school terms:
4.1 the children live with the mother in C;
4.2the mother facilitate the children spending electronic time with the father via Web Cam and internet connection twice per week;
4.3the father telephone the children twice per week with the mother to initiate such telephone calls.
5.That during the school holidays for the Australian Capital Territory the children spend time with the father as follows:
5.1For the whole of the first, second and third term school holidays as defined in the Australian Capital Territory being April, July and September school holidays in each year;
5.2For the first four weeks of the Christmas school holidays in each year.
5.3That the mother pay all airfare costs associated with the time spent by the children with their father and the mother to accompany the child N T C during any period that she is too young to travel unaccompanied;
5.4That the mother make all airfare and travel arrangements for the children to travel and provide the itineraries and details of travel to the father not less than 21 days prior to such intended dates for travel;
5.5That the mother spend time with the children by telephone on at least one occasion per week for each week that the children are with the father and the father is to initiate such telephone calls.
If the court does not permit the children to relocate
That the existing orders made by consent on 06 June 2006 continue.”
Both the father and the mother were represented by counsel during the proceedings. The parties and Mr S each gave additional oral testimony before the court during the trial which took place at D on 20 and 21 December 2006 and each was cross-examined by counsel for the opposing party.
Ms Protheroe lives in C. She came to D in late September of 2006 to prepare the family report. Both parties required her for cross-examination at the trial. She gave evidence from C on 21 December 2006 via the telephone. Although this was not the best way for her to give evidence, I am satisfied that it provided a satisfactory means for her opinions to be subject to scrutiny. Ms Protheroe’s report was tendered into evidence before the court.
In addition the parties agreed that a bundle of documents subpoenaed by the father’s solicitors from the Northern Territory Police should also be tendered into evidence. The documents related to three incidents involving the parties, which also involved the police. The incidents assumed significance during the trial. They can be summarised as follows:
·22 August 2006 – the mother complains to police regarding S being slapped once at the P Bus Exchange by another teenage girl. The father complains that he was not informed about the incident.
·21 October 2006 – the police are called to the mother’s home in response to a heated argument occurring between the mother and Mr S. From the father’s perspective the incident is indicative of the lack of stability in the mother and Mr S’s relationship.
·3 November 2006 – the father makes a complaint to police alleging that N has informed him that she has been indecently assaulted by Mr S. The complaint is investigated and found by police to be without substance. From the mother’s perspective, she believes the complaint was maliciously motivated.
The various affidavits listed above, the oral testimony of each of the witnesses concerned, the family report of Ms Protheroe and the other documents to which reference has already been made form the evidence on which the decision of the court is based. In these reasons for judgement, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.
Background
The mother was born on 1 June 1969 in N New South Wales. The father was born on 21 July 1970 in D Northern Territory. The parties met in D in March of 1992 and married in N on 18 September 1993. There is no dispute that they finally separated on 16 April 2003.
The mother had been previously married prior to her marriage to Mr C. She has two children from this earlier marriage namely S J N born 17 May 1988 and B S N born 2 August 1989. It is common ground between the parties that S and B grew up with the parties and with S and N, after they were born. As result, Mr C performed a significant paternal role for S and B over many years. At this point, S and B are estranged from Mr C. The parties have different views as to why this is so and as to the implications of this so far as Mr C’s future relationship with S and N is concerned. This was an area touched upon by Ms Protheroe in her evidence.
On 15 September 2003, the father commenced proceedings in this court seeking parenting orders in respect of S, B, S and N. At that time it was the father’s position that S and S were living with him; N who was then very young was living with the mother; and B was living with both parties. In response the mother sought orders that would see all four children living predominantly with her.
It seems clear that the final separation between the parties was a difficult one. It also seems fairly certain that the separation had emotional consequences for each of the children involved, particularly the three oldest ones. The mother obtained a domestic violence restraining order against the father in the Local Court at D for a period of twelve months from 13 June 2003.
On 6 November 2003, the parties agreed on interim arrangements for the care of the children. They agreed that S should continue to live with the father and N should live with the mother. However pursuant to ancillary contact orders which were also made at the time, S and N were able to spend five days each week together. Apparently due to his age at the time, less extensive orders were made in regards to B. No specific orders were made in respect of S.
On 20 April 2004, the parties were able to agree on final arrangements for the care of S and N. It was agreed that the two children would live with each of their parents on a shared care, week about basis. The consent orders made on 20 April 2004 made no provision for either B or S. By this stage it appears that both B and S had dropped out of school. It is common ground between the parties that B has had some difficulties with the use of illicit drugs, in the period after the parties separated. When B left school, apparently against Mr C’s wishes and advice, the relationship between the two became strained and B apparently left Mr C’s home. Currently they do not speak. Both the father and mother agree that B has lacked a level of stability in his life in the period since.
2005 seems to have been a difficult year between the parties. On 13 March 2005 S and N were in Mr C’s care and attending a social occasion at Mr C’s brother’s home. He has a swimming pool. N accidentally fell into the pool. The parties have very different views as to the gravity of this situation. From Mr C’s point of view there was little danger to N, whom he was quickly able to retrieve from the swimming pool. Although he concedes he was angry with S for not supervising N more thoroughly.
The mother heard about the incident second hand from S. She was told that N “turned blue” after being removed from the pool. She also asserts that N was found to have inhaled a significant amount of water into her lungs, when she was later medically examined. It was the mother’s evidence that S was emotionally traumatised by the incident, particularly because of the father’s display of anger towards her.
In many ways the incident is emblematic of the parties’ difficult parenting relationship with one another. From the father’s point of view the mother has hysterically over-reacted to an incident of little consequence. From the mother’s point of view, she is highly critical of the father for not informing her of the incident in the first place. In her view it confirms that the father is a neglectful parent who prefers to socialise rather than properly and personally supervise the children. She is critical of the father for leaving N’s supervision to S and then for making her a scape goat when things have gone wrong.
It is difficult at this juncture to make an accurate assessment of how serious or potentially life threatening the incident was. The father asserts S and N were sitting on the edge of the swimming pool, with a number of their cousins, when N slipped into the water. On his account he was only a few metres away and the child was swiftly pulled from the water. He did not think it was of sufficient moment to tell the mother about. Clearly the mother has herself no direct knowledge of the incident, which was recounted to her by S. Her perception of it was that it was indeed life threatening, so far as N was concerned. It seems there was some medical diagnosis of fluid on N’s lungs.
In my view the importance of the incident is that it demonstrates the level of mistrust between the parties and the difficulty they have in communicating with one another or empathising with the circumstances of the other. It also demonstrates the potential for S to become involved in conflict between her parents, as the bearer of information between the two households. Clearly the incident is still very important so far as the mother is concerned.
On 3 July 2005 the father and S went to the car racing at H V Race Track. S also attended independently of them. During the day S apparently confronted the father and an altercation occurred between them. The father asserts that S had been drinking and punched him in the face. S was present during the incident. Later the father made a complaint of assault to the police. The father and S have not spoken since and are completely estranged.
From the father’s point of view, the mother has attempted to alienate both B and S from him or to use his terminology “push him away” from them. He attributes the difficulties both S and B have experienced in making their way in the world since the parties separated to the mother’s permissive parenting. Again to use Mr C’s terminology of being allowed “to do what they liked”.
From the mother’s perspective both S and B have chosen to terminate their relationships with the father because they can no longer tolerate his excessive use alcohol or his parenting behaviour. Again the parties view the same incidents from very different perspectives informed by their different personalities and attitudes to parenting and obviously by their very different views as to the appropriate outcome of the current proceedings.
Although this case is not directly concerned with S and B, they have featured significantly in the evidence. The mother makes much of the fact that both children are currently and apparently irretrievably alienated from Mr C, who has been their paternal figure for nearly all of their lives. Ms Protheroe deposed as to her concern that a “pattern was emerging” so far as Mr C’s parenting was concerned. This has proven to be significant so far as S is concerned. Although once again both parties have very different views in regards to this issue and the involvement in it of Ms Knox.
Around the middle of 2005 the mother asserts that she became increasingly concerned at how S was coping with the week about shared care arrangement. She deposes that S was returning from her father’s home upset and tearful and was complaining that she was made responsible by her father for caring for N, particularly putting her to bed, tending her during the night and reading her stories. The mother also asserts that S raised with her concerns she had about Mr C’s drinking, particularly with him driving after drinking. As a result of these concerns, Ms C arranged for S to see Ms Knox for counselling on 28 July and 12 August 2005.
On 24 August 2005, following her two sessions with S, Ms Knox produced the first of her assessments. Mr C had no input whatsoever into this report. Ms Knox assessed S’s mental health pursuant to the Beck Youth Inventories of Social and Emotional Impairment. Her level of depression was found to extremely elevated; her level of anxiety to be moderately elevated; and her self concept to be much lower than average. When asked to express three wishes, S reported to Ms Knox “for Dad to be a better father”. To do this he would have to “look after N more, not yell at me so much and have girlfriends that do not have to sneak around to see him.”
In this report, Ms Knox provided the following recommendations:
“I am extremely concerned about S’s psychological adjustment currently and believe there needs to be a prompt intervention. Firstly, the situation at her father’s home needs to be addressed. This could be achieved either by joint counselling between S and Mr C where the issues can be explained and strategies put into place so the current environment does not prevail, or by changing contact arrangements.
Secondly, S requires counselling to assist her to develop strategies to manage her mood better and to foster her self-esteem. Other significant adults will also be instrumental in assisting her to begin to feel better about herself, to feel more hopeful, happier and important to her family and friends. Without these interventions I am concerned for her current and long-term psychological wellbeing.”
The mother’s concerns about S apparently caused her to initiate a further round of proceedings in this court on 30 September 2005. At this stage she sought orders that would see S and N living with her for three weeks out of every four during school terms and with the father for the fourth and with the children living for each of their parents for half of each school holiday. The father’s position was that the existing orders should remain in force.
From January of 2006 onwards the parties began to trial the arrangement whereby the children spent two weeks out of every three school weeks with their mother and the third with the father and the holidays were divided equally. It is the father’s position that he had taken on board what Ms Knox had written in her report about S and no-longer required her to do any chores around the home. He also indicated his willingness to attend any appropriate counselling with S. From the mother’s perspective, she asserts that the father indicated to her that he would try to relieve some of the pressure apparently felt by S and, initially at least, things seemed to be better so far as S was concerned.
It is the mother’s position that the state of affairs between S and her father began to deteriorate once again in May of 2006. However nonetheless the mother agreed to the formalisation of the trial arrangements in the form of final orders made by the court on 6 June 2006. It was around this time the mother married Mr S. It is the mother’s position that she did not wish to jeopardise her honeymoon arrangements through a lack of formal arrangements for the care of the children. It also seems to be the mother’s position that she did not receive appropriate legal advice as to the possible consequences of her agreeing to such a final order in relation to any future application she may bring subsequently to change the orders. I accept the mother’s evidence in this latter regard.
It is the mother’s case that a number of stressful incidents occurred for S in her relationship with her father around the middle of 2006. The father concedes that this was a difficult period for him. He ended his relationship with his then girlfriend, which upset him greatly. He acknowledges that he told the mother that he was not in an appropriate state of mind to care for the children whilst the mother and Mr S were out of Australia on their honeymoon. However he denies that he made any threat of suicide which S might have over heard.
Around this time also the father was apprehended for drink driving. His alcohol reading was around .01. He was apprehended whilst on the way to the shop to buy some sanitary napkins for S who had recently begun to mensurate. A delicate issue so far as she was concerned. She had been without any sanitary napkins and in the emergency situation, the father had felt compelled to drive to the nearest shop. However he had come to the notice of the police and been arrested and charged. Later this resulted in the loss of his driver’s licence for a period of six months.
Again the parties have very different views as to the emotional consequences of this incident from S’s point of view. The father deposed that he sat down with S after he returned from the police station and carefully explained to her that his loss of licence was not her responsibility and he was not at all angry with her. From the mother’s point of view, S was devastated at feeling she was responsible for her father’s loss of licence.
Between early August and late September of 2006, it is common ground between the parties that S did not attend her father’s home in accordance with the orders which had recently been made. Again the parties have different views as to why this is so. From the mother’s perspective, S was concerned at the father’s level of drinking and at her perception that she was ignored and unloved by her father. From the father’s perspective the two disagreed over a minor matter of discipline. In his words, S and he have “clashed primarily due to her adolescence and puberty”. He describes S as being headstrong and sulky. In his view, the reason the two have had arguments is attributable to S’s “lack of discipline”.[6]
[6] See father’s affidavit at paragraph 12
On 22 August 2006 the mother began the present round of proceedings. At the request of her solicitor her application was given an early return date of 5 September 2006. At this stage the mother sought the court’s immediate imprimatur to relocate S and N to C with her and Mr S. The mother had spent five days with Mr S in C earlier in the preceding August investigating possibilities of work and accommodation there.
The mother deposed as follows in her affidavit filed in support of her application:
“M and I are now planning to move to C on or about the 14th of September 2006 if approval to relocate is granted by the Court. We are intending to move to the C suburb of N where we have secured a property. We have secured a 4 bedroom home with a study and ensuite which will be big enough for all of our family. The schools for both girls are 400m away from the house.
My husband and I have inquired about job prospects in C with numerous employment agencies. We have been advised that many positions are available to persons with education and information technology backgrounds. My husband and I both work in the education and information technology field. We are currently in the process of interviews and negotiations of employment start dates, which we are hoping to finalise if the court approves this application.” [7]
Accordingly it is clear that the mother’s plans were only recently gestated and she and Mr S had not finalised their employment prospects in C.
[7] See mother’s affidavit filed 22 August 2006 at paragraphs 9 and 17
The mother was either naïve or ill advised to believe her plans had any realistic chance of success in the short term. I suspect that it was a combination of both these factors. In addition perhaps she thought that the father would not want to stand in the way of her plans. Again I suspect that she was either hopelessly optimistic in this regard or naïve. These matters confirm one of my impressions of the mother that she is a person of great enthusiasm, who at times does not think through fully the possible consequences of her enthusiasms. In any event, the father did vehemently oppose the proposed relocation and the mother’s interim application was unsuccessful.
This was the background to the parties and S attending again upon Ms Knox. Once again there is controversy between the parties as to the precise reason why arrangements were made with Ms Knox. From the mother’s point of view (which is confirmed by Ms Knox) the primary purpose of the meeting was to discuss why S had refused to visit her father and to mediate some resolution of the issue between her and the father. From the father’s point of view (again confirmed too some extent by Ms Knox) the main motive for the meeting was to discuss the mother’s desire to relocate both S and N to C.
This apprehension on the part of Mr C has caused him to be somewhat suspicious of Ms Knox and the rationale of the counselling. He regards Ms Knox as being strongly aligned with the mother’s position and to be antagonistic towards him. Again to use his own terminology, Mr C regards Ms Knox’s second report as a “hunt on [him]”. I suspect that this attitude towards Ms Knox has coloured Mr C’s attitude towards counselling generally. Certainly Mr C told Ms Protheroe that a further counselling session involving a counsellor, S and the mother was “not on”.[8] His preference is to try and “mend bridges” with S through direct discussions with her rather than utilising a “therapeutic intermediary”.[9]
[8] See Family Report at paragraph 39
[9] See father’s affidavit at paragraph 12
Ms Knox was involved with S on two further occasions, prior to the writing of her second report on 4 September 2006. Firstly she saw S, the mother and the father on 26 August 2006. It is clear that the proposed relocation was discussed at this meeting. S was described by Ms Knox as being very tearful and emotionally overcome, when observed in discussion with her father. Ms Knox also noted that Mr C did not attempt to comfort S at all during her obvious distress. Ms Knox reported as follows in regards to her observations of S:
“S presented as very angry about her father’s refusal to consider the move to C, and the fact that he has not changed much since the contact arrangements have been altered. She had hoped that with less time with his daughters, Mr C would spend more quality time with them. She reported that her father still makes her too responsible for her younger sister, N; yells at her often, especially when he has had a hard day or an argument with someone else; does not listen to her and considers that she is too immature to have an opinion of her own; and does not take much interest in her. It was apparent that S’s primary issue is that she does not believe that her father truly cares about her. I re-read the report I wrote twelve months ago and most of the issues were the same. The exceptions were that Mr C does not discuss her brother and sister in a derogatory fashion and rarely denigrates her mother.”
A further session was organised between Mr C and S on 2 September 2006. Mr C did not arrive at this session and provided no explanation to Ms Knox or S as to why this was so. At this further session S raised concerns she had about the father’s level of drinking and particularly comments he made to her when inebriated, which she regarded as hurtful, particularly as the father did not acknowledge them later when sober and apologise. Ms Knox summarised S’s concerns as the father being “physically and emotionally unavailable to his daughters” when he had been drinking.
Ms Knox also reported that S disclosed to her that she had overheard her father telling members of his family that he wanted to shoot and kill himself. As one of her friend’s father had suicided, S has apparently a high degree of emotional sensitivity to issue of suicide. S was again concerned that the father had never acknowledged this issue to her. As has previously been indicated, it is the father’s position that no such comments were ever made by him. On balance, I doubt that Ms Knox is mistaken about the issue or that S has fabricated the matter for some ulterior motive of her own. From Ms Knox’s point of view, the matter was of relevance as being indicative of the emotional void between father and child.
To Ms Knox, S:
“…informed that she no longer feels depressed, is happy living mostly with her mother, is very happy with her relationship with her stepfather, M, and reported that M seems more like a real father than her own. With respect to M and in contrast to her own father, S reported that he is just a social drinker, is not an angry person, and seems to care about her. M shows his caring by talking to her about her life and her activities; he treats her opinion as if it mattered; they can resolve difficulties amicably without damaging the relationship and he does fatherly things like helping her with her homework and downloading songs for her. She is not scared of him. All of this contrasts sharply with the way she feels about her own father and currently she would like to disown her father and have nothing to do with him.”
These various matters caused Ms Knox to opine that the relationship between S and her father might have irretrievably broken down. She was further concerned at what she considered to be the unwillingness of Mr C to acknowledge the problem and start addressing it. S was described as being “adamant” in her desire to move to C. She also reported that she would visit her father but only because she felt she had no choice in the matter.
At the point of her second report, Ms Knox identified what she saw as a number of issues of relevance to the determination of both S and N’s best interests. These included the following:
·Mr C’s drinking. Ms Knox was concerned that Mr C might be in denial about the extent of his dependency on alcohol;
·What Ms Knox described as the unwillingness of Mr C to factor the children’s needs into his lifestyle, in the sense that he did not appear to be responsive to their emotional, social and educational needs. Ms Knox described this as Mr C preferring just to spend time with them rather than “truly fathering them”;
·The propensity of Mr C to be verbally abusive to S currently and possibly to N in future;
·Mr C resistance to take advice from suitably qualified experts in regards to relationship issues, particularly in regards to his children;
·The propensity of others around Mr C to become co-dependent with him;
·The effect Mr C’s rapid transition into new relationships might have upon the children.
As has previously been indicated, Ms Knox’s two reports were influential in shaping Ms Protheroe’s recommendations. The father does not believe that Ms Knox can be regarded as a dispassionate witness.
There can be little doubt that the period leading up to the final hearing of this matter has intensified the pressures on all of the parties concerned in it. On 21 October 2006 both the mother and Mr S, independently of one another, summonsed police to their home in response to a serious argument between them. It seems that the father himself did not know directly of this incident but discovered it, somewhat opportunistically, when he inspected documents subpoenaed from the Northern Territory Police.
Both the mother and Mr S attribute the argument between them to the stress both were feeling as the court hearing approached. Mr S deposed that what he described as a “disagreement” with the mother as having occurred when he expressed his displeasure that she made things too easy for Mr C in respect of his relationship with the children. It is his position that the children were not directly exposed to the argument and it is not symptomatic of any underlaying instability in the relationship between him and the mother. Something the mother confirms. Both now feel they communicate better with one another.
The final matter of significance relates to the father’s notification to police on 3 November 2006 regarding Mr S having indecently dealt with N. Clearly this is potentially a very serious matter indeed. However Mr C did not allude to it at all in his affidavit material. The reason he gave for this was that he was concerned that the mother would use his notification as “a weapon” against him during the trial. I think that Mr C is naïve to consider that once he had formally raised such an issue that it could than effectively be ignored.
The mother and Mr S learned of the issue when they were contacted by police and N herself was interviewed. For obvious reasons the issue raised the level of stress being felt by the mother and Mr S. Mr S vehemently denies ever having behaved in an inappropriate way towards N. He describes the father’s notification as a “vile allegation”. The mother is critical of the father for not raising the matter with her directly and accordingly believes that the notification was maliciously or tactically motivated, perhaps designed to intensify any friction between her and Mr S. The mother also believes the father was drunk at the time he made the allegations.
The police documents indicate that the father described N to them as having been withdrawn during her past few visits to him. On the evening of 3 November 2006 whilst he had been putting N to bed she requested that S sleep with her as she was “scared”. When asked why she was scared she allegedly disclosed that M had been touching her, whilst pointing to her “private parts”.
As a result of this notification the police conducted what is described as a “Forensic Child Interview” with N. I have not been provided with a copy of this interview. N made no further disclosures. She was apparently asked about what she had purportedly said to her father and replied that she had told her father that “she was scared of the dark and he did not know this, that it is why she wanted to sleep with her older sister.” The police records indicated that N said to the police officer concerned that “Dad was lying” about the matter. From the mother’s perspective this adds weight to her concerns that the father lacks parental insight.
S was also interviewed by police in regards to her recollection of what occurred on the night the notification was made to police. She apparently reported that Mr C was drunk on this occasion. As a result of all these matters, the police came to the conclusion that no evidence to indicate any offence had been committed by Mr S. They also formed the view that “as there is an issue with the Family Law Court both parents are trying to use issues against each other.”
Although Mr C did not allude to the issue at all in his affidavit material and did not otherwise raise the matter himself in his oral evidence, when asked about the matter he indicated his believe both that N had made a specific allegation to him that of having been indecently assaulted by Mr S and that the allegation was true. His evidence was that “N had told me something. I’d had a few beers but was not intoxicated” which had caused him to come to the conclusion that she had been “interfered with”. He denied being maliciously motivated but confirmed he had left an abusive message on the mother and Mr S’s telephone answering machine.
The matter is a difficult one. The mother acts on the assumption that the notification is clearly fallacious and so warrants no further investigation. The father strongly asserts his belief in the truth of the allegation raised by N but does not formally raise the matter at all in the proceedings. He asserts that he is biding his time until some further disclosure is made, something he believes is likely. Without doubt the incident has intensified the parties’ mutually held mistrust and antagonism for one another.
The parties’ respective cases in outline and the central issues
(a) The mother’s case in outline
It is the mother’s position that she is the more “child-focussed” of the parties. In support of her contention, she points to the fact that the evidence indicates that she has always attempted to facilitate the children having a strong relationship with their father. She was agreeable to the shared cared arrangement brought about by the first set of final orders and in spite of some misgivings was also supportive of the current arrangement which allows for both children to spend extended periods of time with the father. Further she points to the fact that she proposed to adjourn these current proceedings to enable S and Mr C to build a stronger relationship through the process of therapeutic counselling recommended by Ms Protheroe. An offer which would have resulted in her own personal plans being disrupted but which was rebuffed by Mr C himself.
However it is now her position that she no-longer believes that Mr C has sufficient insight or willingness to properly parent either S or N in future. She regards the father as being an emotionally absent or neglectful parent. She also believes that he is incapable of involving himself in the children’s education or sporting interests. In support of this contention, she points to the fact that Mr C has rarely attended any parent/teacher interviews and did not attend N’s recent end of year performance or a bike-a-thon in which she took part.
She is gravely concerned at the father’s level of drinking and believes this poses a significant level of threat to his ability to parent the children adequately. She believes that the father is in denial about the level of his drinking and its potentially deleterious consequences for both S and N, particularly in terms of things he says to the children when he is affected by alcohol. It is her position that she has put up with his behaviour for long enough but is no-longer prepared to continue to do so. She asserts that this a point which S and B have also reached and which it is likely S too will or has already reached.
The mother disputes the closeness of the relationship the children have with members of their paternal family, particularly their grandmother. It is her position that they are often unnecessarily critical of S, particularly of her appearance and posture and this has had seriously detrimental consequences for S’s level of self esteem. Again the mother points to these matters as being indicative of the father’s poor level of insight into the responsibilities of parenting and his inability to safeguard S’s emotional well being.
It is the mother’s position that she assumes greater financial responsibility for the care of the children. She points to the fact that she has paid a substantially greater proportion of the bills relating to S’s orthodontic treatment. The accounts amount to approximately $4000.00, of which Mr C has paid $1,100.00. In the mother’s terminology, the father “picks and chooses what he is willing to assist with in relation to the children.”[10] By implication, she asserts that up until now she has picked up the slack left by the father in his parenting of the children in order to make the shared parenting arrangement work, believing this was the best thing for the children. Something which she is no-longer prepared to do now believing that such an arrangement is neither fair to her nor, more importantly, in the best interests of the children. She has also reached the point where she believes that the father is incapable of changing his parenting practices, regardless of his protestations to the contrary.
[10] See mother’s affidavit filed 15 December 2006 at paragraph 28
It is the mother’s position that the children’s relocation to C will bring them many opportunities, which are currently denied them in D. In particular they will have more sporting and recreational opportunities which are likely to be available in a larger centre. Mr S is very enthusiastic at the proximity of Sydney with its cultural attractions as well as the mountains of the Australian Alps. The mother also believes that the schools are likely to be superior in C. Above all she believes that she and Mr S will be better off financially in C, once they have commenced their business together. This is likely to make her feel much happier and fulfilled, which will benefit her parenting of S and N.
The mother concedes that, in recent years, she has been estranged from her family in N. She attributes this estrangement to her family’s displeasure at her decision to reconcile her relationship with Mr C in 2002. It is her position that her family disapprove of Mr C and do not regard him as a good influence in her life. One of her reasons for wishing to relocate to C is her wish to salvage her relationship with her family. As previously indicated, in spite of this breach in the mother’s family, S has been able to maintain close relationships with them, particularly her Aunt K. However she has not physically spent time with them for some years now. From the mother’s point of view, it will be of great benefit to S to be able to reinforce her relationships with members of her maternal family, particularly Aunt K. The mother also points to the fact that it is clearly S’s preference to move to C as soon as possible.
The mother is fearful that what she believes is the current serious level of estrangement between S and her father is likely to become entrenched, particularly given Mr C’s resistance to being involved in counselling. Accordingly she is fearful that S will follow S and B in becoming alienated from him. She is also concerned that, in time, there is a strong possibility that the same thing will occur in regards to N, although currently she acknowledges that there is an extremely close and loving relationship between N and her father.
In all these circumstances, the mother believes that it is not likely to be in the long term interests of either S or N to remain living in D indefinitely so that the optimal level of relationship may be fostered in future between N and the father, particularly given the father’s apparent unwillingness to involve himself in any therapeutic intervention to improve his currently poor relationship with S and his lack of insight into the potentially deleterious consequences of his parenting behaviour on the children. Her resolve in regards to this issue has been strengthened because of her disappointment that the father has rebuffed her proposal that the proceedings be adjourned so that such counselling could take place between S and Mr C. From her perspective she has done all that she can do to ensure that he does have a happy and healthy relationship with S. She fears the consequences for S if she (S) is compelled to remain living in D against her wishes.
As I indicated in the introduction, one of the significant areas of difficulty in this case is the different needs of the two children concerned. To what degree should S’s needs be held in abeyance to protect those of N? With the rejection by the father of her overture to remain in D whilst he and S worked through a process to repair their relationship, it is the mother’s position that the balance has now swung more in favour of advancing S’s best interests. Particularly as she believes that N will be able to maintain a significant level of relationship with her father through holiday periods spent with him and through regular electronic communication. She asserts that she will promote the children’s relationship with their father in such changed geographical circumstances and points to her prior record of being proactive in this regard. The mother summarised her case as follows:
“I feel this move would be in the interests of all my children and also allow us to move forward in our future together as a functional happy blended family. I am by no means trying to cut off T from the children. I am very encouraging of the girls’ relationship with their father, but at the same time I am also trying to do what is best for all my children.” [11]
[11] Ibid at paragraph 32
(b) The father’s case in outline
The father can see no benefits of the mother and children moving to C. He does not believe that the children have any significant relationships in C, particularly as they have not spent time with their maternal family at N since 2002. He does however concede that S regularly communicates with Aunt K through the telephone and internet.
Mr C is dubious at the possible financial benefits which may entail to the mother and Mr S from the move. To Ms Knox he indicated that neither was transferring to a job in C but both would have to start from scratch there. In addition it would mean that the mother would be leaving B and S behind in D. In this regard it is important to note that S has recently given birth to her first child.
It is Mr C’s position that he and the mother have very different values and beliefs. These differences are translated into their parenting methods. He sees himself as more of a disciplinarian in his parenting than the mother. He wants to be able to remain a significant influence in both S and N’s lives because otherwise “they’ll go off the rails” like S and B. He is bitter at his perception that the mother has forced him out of their lives and fears that she means to do the same so far as S is concerned. In such circumstances he is highly suspicious of the mother’s assertion that she will keep him involved in the children’s lives, in the event of a relocation. He fears the contrary will occur.
He refutes any suggestion that he is not actively involved in the children’s lives, particularly their education and other activities. He concedes that he and the mother do not currently communicate well and there may have been some occasions when he has not informed her of some matters to do with the children when they have been in his care. In his oral evidence he forcefully asserted: “I am not married to D any more. I don’t need to report to D every day”. The father’s attitude in this regard certainly rang true to me.
The father described himself as a social drinker. Certainly he denied that his level of drinking posed any level of threat to the children. He indicated that he drank up to nine beers (I presume cans or stubbies) of full strength beer in a session, usually on weekends and on many occasions drank significantly less. He also deposed that on occasions he went several days without drinking alcohol at all. In his words:
“I do not believe that I have any problem with alcohol and issues that S had she has raised with me about my disciplining her after consuming alcohol and [sic] have now been resolved between S and I.”[12]
[12] See father’s affidavit of evidence at paragraph 24
It is clearly the father’s case that Ms Knox, Ms Protheroe and the mother have overstated the degree of difficulty in his relationship with S. He regards these difficulties as likely to be transitory and able to be resolved without the need for what he described as a “therapeutic intermediary”. In his affidavit, he deposed as follows:
“S and I have previously clashed primarily due to her adolescence and puberty. She can be headstrong and I object to her attitude and sulkiness on occasions. In my view, most arguments between S and I have been to do with lack of discipline, her being untidy, refusing to assist around the house or refusing to assist me with her sister in the mornings on the way to school.”[13]
[13] Ibid at paragraph 12
It is the father’s position that he and S have resolved these various issues by S being absolved of responsibility for a number of chores around the household, particularly in regards to caring for N. Overall it is Mr C’s position that S’s behaviour towards him is not out of the ordinary but is typical of a somewhat moody and impressionable adolescent girl. He is somewhat suspicious that the mother is encouraging S’s currently strong level of alignment with her. He does however concede that at times he has been grumpy with S in the past, particularly when he has had a difficult day at work.
Mr C opposed the mother’s application for an adjournment because he was not then willing to go to counselling with S. At that stage he deposed that he could not understand “how it could improve things” between him and S. However, if directed to attend counselling by the court, Mr C indicated that he would attend such counselling. More recently, in the final submissions of his counsel, Mr C indicated a willingness “to do whatever it takes to improve” his relationship with S.
The father describes the children as being happy and generally settled when in his care. He believes he has a close and loving relationship with both of them. He believes that S is able to confide in him in regards to any problems she may have from time to time. He also deposes that his home is comfortable and provides all the facilities required for children of the ages of S and N. It seems to be a large and comfortable home in a rural setting. I accept that this is so.
The father is currently involved in a relationship with A S. Ms S has two children aged 13 and 6 from a previous relationship. Ms S stays overnight at the father’s home from time to time. It is his position that S and N get on very well with Ms S’s children. Accordingly he refutes any suggestion of Ms Knox that the children have been in some way discomforted at the speed at which his relationship with Ms S has unfolded.
The father acknowledges that members of his family, particularly his mother, have been critical of some aspects of S’s dress and deportment. He does not believe there is anything untoward about these comments, which he believes were well intentioned. It is a major aspect of his case that the children’s significant relationships with members of their paternal family will be disrupted in the event of a relocation. He disputes that there is any long term rift between S and members of her paternal family.
It is the father’s position that it is not open to him to move himself to C. He has no personal interest in moving there and more importantly all his business connections are in the D area. It would be very difficult for him to commence a new business in an area where he does not know anyone and where he has no interest in going. The father conceded that he has in the past considered moving to Q, a place he finds attractive but describes this as a long term and not fully considered ambition. In cross-examination he said he could potentially relocate himself and his business any where in Australia if he was positive about the move. By necessary implication, he is not positively disposed towards moving to C.
However the father’s greatest objection to the relocation is that it would remove him from involvement in the day to day aspects of S and N’s lives. This is undoubtedly the case. The father does not believe that he will be able to maintain his current level of relationship with the children through spending block periods of time with them during school holidays. Firstly it will be difficult for him to organise extended periods of time away from his work. As a self-employed builder, he is beholden in a significant way to the needs of his customers. Secondly he believes that such block periods will not provide his relationship with the children with its current level of intimacy. In his evidence, Mr C said “it is the day to day things that matter. I want the same time as I get now”.
The father denies that he does not assume an equal financial responsibility for the children concerned. He asserts that he is willing to pay his half of S’s orthodontic bill. He ascribes the difficulty in the payment of the bill to some miscommunication between him and the orthodontist concerned. He concedes he did not attend N’s bike-a-thon, indicating that he probably had a work commitment then. However he points to the fact that he has attended other functions at N’s pre-school.
This certainly seems to be the case so far as S is concerned because of the close alignment between her and the mother. The issue may be more blurred so far as N is concerned. I accept that Ms C is likely to be deeply disappointed and bitter if she cannot move to C. I do not think she has any special store of magnanimity which would assist her to come to terms with such a decision. Obviously she is capable of functioning psychologically in D, a place which has been her home for many years but I also accept that, due to her relationship with Mr S, which is obviously a close and committed one, D has lost its savour for her and she aspires to live somewhere different.
In addition, given the years of conflict she and Mr C have lived through since their separation and the unlikelihood that this conflict will resolve in the future, I consider that the mother was speaking with candour when she said, in effect, that she was worn out in trying to reach compromises with Mr C and make the shared parenting regime to which he aspired work, without some commensurate commitment from Mr C, which she did not think would ever be forthcoming. These were also factors which had influenced her desire to move elsewhere. In these circumstances, I am pessimistic that the shared parenting regime, to which the father aspires, can be maintained by the court compelling the mother to remain living in D against her will. To the contrary, I consider that such an outcome will have a positively detrimental effect on the mother’s capacities to parent both S and N. This is important given the mother’s emotional centrality to both children.
In Fragomeli & Fragomeli[43] the Full Court of the Family Court said as follows:
“The custodial parent’s freedom of movement and his or her right to choose where to live may itself be a factor in the welfare of the child. As the person responsible for the custody of the child, the custodian’s ability to function effectively is important to the child’s welfare… a child’s welfare may well be adversely affected if the custodian’s movements are restricted. If the Court were to interfere unduly with the way of life which the custodial parent legitimately proposes to adopt, there may be frustration and bitterness which might adversely affect the child…”
These appear to be apposite considerations in the present case.
[43] Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
Shortly prior to the date scheduled for these proceedings to commence, the father made a complaint to police that Mr S had sexually abused N. As has already been indicated the police found this complaint incapable of being substantiated and formed the view that it had occurred for tactical reasons in the lead up to these bitterly contested proceedings. In a formal sense, the father chose not to reiterate his complaints in the forum provided for the adjudication of these proceedings.
In his evidence to me, the father indicated he believed what he purported N had told him about Mr S. It is of concern to me that the father did not raise his concerns about Mr S directly with the mother but rather preferred to refer the matter directly to police. It is also of concern that the father is apparently biding his time until he believes another such notification will inevitably arise from N. Such an atmosphere of suspicion and hostility from the father towards the mother and Mr S’s household is unlikely to be conducive to the maintenance of a sense of emotional stability for either S or particularly N. At this juncture I am unable to say whether the father’s notification in this regard was maliciously fabricated. It is however of concern to me that the father seems to have been affected by alcohol when the issue arose and when he left an abusive message on the mother and Mr S’s telephone.
(g) The children’s maturity, sex, background and other characteristics
Clearly considerations of N’s maturity and so the resilience of her relationship with her father loom large in this case. As has already been indicated, these factors militate in favour of the court adopting the position advocated by the father. On the other hand, S is a child of significantly more maturity. As has already been indicated, given this state of affairs, it is incumbent on the court to give her views some prominence. As I am pains to point out, the best interests of S and N are not necessarily homogeneous.
S has just passed through menarche. It is part of the mother’s case that she, due to her sex, is more able to assist S through this transition than the father. Without in any way wishing to perpetuate any sexual stereotypes in this regard, in the present case, given the current lack of emotional rapport between the father and S and given the circumstances surrounding the father’s apprehension for drink driving, I suspect this to be the case. It is however, in the greater scheme of things, a comparatively trivial matter.
(h) Aboriginality
These considerations are not relevant in the present case.
(j) Any family violence involving the children
(k) Any family violence order
In the aftermath of the parties’ separation the mother obtained a domestic violence restraining order against the father. The order has since lapsed. It is the father’s position that the mother was violent towards him during the course of the parties’ relationship. Apart from the father’s assertion of this fact to Ms Protheroe there is no evidence to support it. At this stage, I do not think these are significant matters in the overall determination of this matter.
In addition I do not think that the altercation which occurred between the mother and Mr S on 21 October 2006 has any serious bearing on the outcome of this matter. The matter was regrettable but there is no evidence to indicate that either S or N has been affected by it in any way. I accept that the incident was out of character for both the mother and Mr S and occurred as a result of the stress precipitated by these proceedings.
(l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
The rationale behind section 60CC(3)(l) is easy to glean. Litigation, in regards to children, is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, litigation has the potential to perpetuate conflict between parties, which is harmful to the emotional security of the children concerned. Accordingly, it is desirable that courts, such as this one, make orders that will minimise the prospects of the parties seeking further orders in future.
One of the principle rationales of Ms Protheroe’s recommendation that the mother be restrained from relocating with the children was that it would provide time for Mr C to seek counselling to re-establish his relationship with S. However, Ms Protheroe indicated that if this counselling was unsuccessful there was “merit” in the court revisiting the issue of relocation at some stage in the future. Prior to the time scheduled for the hearing to commence, the mother sought to adjourn the proceedings for about six months to allow such counselling to take place.
As has been already indicated, the father opposed that application. It was his position at that point that the counselling proposed would serve no useful purpose. He was also concerned that such an adjournment would intensify the stress all concerned were suffering whilst waiting for the matter to be decided one way or the other. During the hearing itself, it is my apprehension that the father remained dubious about the efficacy of such counselling, although he did say he was willing “to do whatever it takes” to improve his relationship with S and his counsel, in closing submission, did indicate her client’s willingness to attend such counselling.
As is apparent from these reasons for judgement, it is my finding that the father currently lacks the insight and willingness which is likely to be required to make such counselling viable. I am concerned that there is a high probability that, if the mother’s application for relocation is unsuccessful, S will withdraw once again from spending time with her father and the relationship between the two will deteriorate. In such circumstances, it seems inevitable that the mother will bring another application before the court both to modify any orders which pertain to S and a further application to relocate the place of residence of both children. Accordingly, it seems to me, that the rationale for the de facto moratorium put forward by Ms Protheroe is effectively negated.
On balance, it seems more likely than not that the mother’s proposals are the ones most likely not to lead to the institution of further proceedings between the parties. However I do not have a crystal ball in this regard. Whatever is the outcome one or other of the parties will be bitterly disappointed. The current level of mistrust and difficulties in communication between the parties are unlikely to be alleviated in the foreseeable future. Such an environment regrettably provides fertile ground for further litigation.
(m) Any other fact or circumstance that the court thinks is relevant
If it be the decision of the court that S and N should live predominantly with the mother, it is the law, certainly as it was prior to the Shared Parental Responsibility Legislation which amended the Family Law Act, that she need not provide “compelling” reasons as to why she wishes to relocate the residence of the children from D to C. However, regardless of this factor, I believe it is still incumbent upon the court to make some examination of the reasons why the mother wishes to relocate.
The major precipitating factor behind the mother’s desire to move to C is her relationship with Mr S. Prior to the mother and Mr S becoming aware of their feelings for one another, Mr S had decided he wished to live in a cooler climate in T. However once he became involved with the mother, he was prepared to place his plans in this regard in abeyance. However I consider it likely that he still wished to pursue opportunities to live in the southern parts of Australia. Given the serious and committed nature of her relationship with Mr S, the mother has not only her only desires and ambitions to consider but also those of her husband.
The attractions of C for the mother and Mr S are vocational and financial. I accept that these attractions are legitimate, particularly that they will be able to pursue business opportunities in C in their respective and complementary fields of training and computing, which are not available to them in D. I accept their evidence that these opportunities are likely to be financially rewarding for them in the longer term. Clearly, if they are able to pursue them, this will provide benefits to both S and N. If the mother is happy and financially secure, she will be better placed to parent the children. In my view, the expectation that the mother and Mr S will be better off financially in C is a legitimate matter for the court to consider.
I also accept the mother’s evidence that she has other personal reasons which make C attractive to her. The major of these is that it is close to N, where she grew up and where many members of her family live. I accept her evidence that she wishes to live nearer to her family and renew her relations with them. Again these are legitimate matters for the mother to put forward in support of her application to move the children’s home to C. I am satisfied that the motivation behind the mother’s wish to relocate the children to C is neither capricious nor spurious.
Conclusions
Relocation cases are very difficult. At the end of the day, it is necessary for the court to weigh up the pro’s and con’s of each feasible outcome and focus on how it believes the best outcome may be achieved for both S and N. Their best interests remain the paramount consideration but not the only one. I must not loose sight of the fact that as a citizen of a free and democratic country, the mother has an entitlement to live how and where she chooses. The mother’s desire to live the life of her choosing, with Mr S in C, is a legitimate matter for the court to consider. Australia, which occupies a large land mass and where language and cultural practices are largely homogeneous, is a country whose citizens, in particular, frequently move within it.
The main thrust of the enquiry in this case remains which possible outcome will serve S and N’s best interests. However that inquiry does not occur in a vacuum, divorced from the parties’ legitimate expectations as to how and where they will live in future. Indeed, expectations of these sorts, may of themselves, have implications for the best interests of the children concerned. A settled and happy parent is likely to be a parent who is functioning at the upper range of his or her capacity as a parent and obviously, this a factor of prime importance to the children involved, particularly if that parent is the one predominantly involved in caring for the children.
Before making any parenting order in this case, I am required to consider the presumption arising from section 61DA that it will be in S and N’s best interests that an order is made for the parties to have shared equal parental responsibility for them. If the presumption applies, the mechanisms created by section 65DAA are engaged, one of which is that the court must consider an arrangement whereby the children spend equal time with each of their parents. Clearly, such an outcome will encompass the orders sought by the father but, for obvious reasons will negate the mother’s desire to live with the children in C, given Mr C’s unwillingness and inability to move there.
The presumption created by 61DA is rebutted by considerations of child abuse and family violence, and more relevantly in this case, if the court does not consider that it would not be in the best interests of the children concerned to apply the presumption. In addition, section 65DAA(5) outlines circumstances, whereby either equal time or significant and substantial time, with both of their parents, is not reasonably practicable.
It is the mother’s position that the presumption should not apply because of what she characterises as the father’s consistent failure to involve himself in the making of significant decisions regarding the children’s educational, health and sporting matters, which she asserts have almost wholly fallen to her to deal with. For the reasons already provided, I am satisfied that the mother has been the more active of the parties in regards to these issues. But is this reason enough to remove the father from having some level of responsibility and input into the making of important decisions regarding the children, regardless of whether they live in C or D?
Clearly, whatever criticisms the mother has of the father, he has still been consistently involved in the lives of both children, both before and after the parties separated. Both children have lived with him for extended periods of time. As I have already indicated, I accept that Mr C loves both S and N very much. Although there is currently a significant level of disaffection in his relationship with S, there can be doubt that his relationship with N is warm and nourished by a significant level of involvement by the father in her day to day care. For these reasons, Mr C will remain vitally interested in all aspects to do with the long term care and development of the children, particularly their health and education. Religious matters have not been raised in this case at all.
“Major long-term issues” is an expression defined within the Family Law Act. It encompasses matters of education, religious and cultural upbringing, health and, most importantly in this context, changes to living arrangements that make it significantly more difficult for the child concerned to spend time with one or other of his parents.[44] Notwithstanding this last matter, I do not think that an order that parents have shared equal parental responsibility for the children should constitute an automatic bar to a relocation of the children concerned to a location far removed to one of their parents. Clearly there may be many situations where parents live in separate geographical locations but still exercise joint parental responsibility for their children. An example which springs to mind is where one parent is working overseas for an extended period of time and the other parent remains in home location to care for both parents’ children. In this age of instant electronic communications, it is easier for decisions to be discussed over long distances than was previously the case.
[44] See Family Law Act at section 4
As I raised with the parties, during their submissions in this case, I would be uncomfortable with a situation whereby only Ms C could consent to one of the children receiving significant medical treatment, particularly if such medical treatment could potentially have both beneficial and detrimental consequences, or if a situation arose whereby one of the children was offered a significant educational or sporting scholarship and only Ms C could decide whether it was or was not taken up. I acknowledge that such occasions are likely to be few and far between but, in my estimation, it is contrary to the tenor of the amending legislation that one parent be excluded from these important matters in absence of very compelling reasons.
Although the parties’ parenting relationship is currently very poor and is likely to remain so for the indefinite future, I am not persuaded that such compelling circumstances exist in the current case. In any event, apart from the engagement of the mechanisms provided by section 65DAA, such considerations are largely academic. Pursuant to section 65DAE, parents do not have to consult on matters which are not concerned with major long-term issues, when the children are spending time with one or other of them. For these reasons I propose to make an order that the parties have equal shared parental responsibility for S and N. I do not think that to make the order which the mother seeks in regards to this aspect of the case would be in the children’s interests, particularly given the level of involvement of Mr C in caring for both children, but particularly N up to this stage.
Accordingly I now turn to a consideration of the application of section 65DAA to the circumstances of this case. The court is required “to consider” whether orders should be made which will result in the children spending either equal or substantial and significant time with both their parents. As the Full Court has made clear in Goode, this process of consideration must be an active exercise rather than a tokenistic or mechanistic one. In performing this consideration, I am required to consider the matters set out in section 65DAA(5).
As I have pointed out through out these reasons for judgement, the positions of S and N are very different. For reasons already decided, I consider that the state of S’s relationship with her father is in a parlous condition and may indeed be irretrievable, particularly if the mother is not able to move with her to C, an outcome upon which she (S) has apparently set her heart. In S’s case, it seems clear to me that her best interests should dictate a regime whereby her mother is principally charged with providing her residence. I accept that the shared care regime for her, as advocated for her by the father, is likely to have a seriously detrimental impact upon her. Similar considerations arise in regards to S spending substantial and significant time with the father in future.
The more difficult question the court’s consideration of how N should have a meaningful relationship with both her parents, within the framework provided by section 65DAA, without being dismissive of the rights of Ms C to live how and where she chooses, particularly as the finding of the court is that she is S’s principal provider of care and the parties are agreed that the children should not be separated. I confess that these matters are not easy to balance. As I have accepted that it is neither currently possible or practical for Mr C to move away from D (and indeed this is his position) if N is to have the most meaningful relationship envisaged by the legislation, it can only come about by the essential negation of Ms C’s freedom of movement, which of itself is likely to have adverse consequences for S.
In these circumstances, in my view, N spending either equal time or substantial and significant time with both her parents is not likely to be an outcome that is reasonably practicable within the criteria listed in section 65DAA(5), as it can only come about by the denial of the mother’s entitlements as a citizen. In particular, in my view, Ms C’s entitlement to freedom of movement is a matter which can be, in appropriate circumstances, a relevant consideration within the meaning of sub-section (e) of the section.
In the past, in deference to such considerations of freedom of movement, the relevant authorities have indicated that a parent wishing to relocate a child away from the other parent concerned need not provide “compelling reasons” to justify such a relocation. The question of whether the amendments to the legislation, provided by sections 61DA and 65DAA in particular, which flow on from the desirability of children having a meaningful relationship with both their parents, have raised the bar, so far as the qualitative nature of the justification required for relocation, is unclear. However, in my view, in the present case, the mother’s reasons for wishing to live with both S and N in C, if not compelling are certainly very strong, given her relationship with Mr S, his desire to move and the financial advantages which are likely to prevail if the move occurs.
There is no ideal age for a child to relocate. It is, I think, generally recognised that the most problematic age for relocation is when children are very young and, as result, do not have an ability to talk on the telephone or any well developed cognitive skills. Although of tender years, N is not such a very young child. I do not consider that, if N moves to C and the father remains in D, the relationship between the two will be leached of all meaning. She will retain her memory of her father and the concept of who he is in her life. I accept the mother’s evidence that she will maintain and welcome the father’s “spirit” in her household. I also accept Ms Protheroe’s evidence that the two will be able to have a level of relationship through telephone and webcam communications and spending time with one another during school holiday which although not the optimal situation will allow the relationship to be maintained.
As Kirby J pointed out in AMS v AIF no single factor is dispositive of a relocation case and the application of the legislation concerned “is in a constant state of amendment and re-expression”. However, in my view, in the absence of specific legislative expression otherwise, the court is still required to consider a parent’s entitlement to freedom of movement, arising from the Australian Constitution, in conducting the delicate analysis and balancing of irreconcilable considerations that such relocation cases require.
The recent amendments to the Family Law Act 1975 are significant ones and far reaching. However, in my view, they do not enshrine a principle that separated parents are obliged to remain living indefinitely, in close proximity to one another, to ensure that their children maintain what one parent alone considers likely to be the optimal level of relationship between the children and each of their parents. Practical considerations may make such an outcome unworkable, particularly if it results in the negation of a person’s rights, as a citizen, to live how and where he or she chooses. In addition, such a result may often have possible and perhaps unforeseen adverse consequences for the welfare of the child or children concerned. At the end of the day, one of the primary functions of the Family Law Act is to provide for mechanisms for separated parents to assume lives which are separate from the other parent concerned.
Given these factors and given considerations pertaining to S and her best interests, I have come to the conclusion that the best outcome for both children, bearing in mind the significant sibling relationship between them and both party’s view that they should not be separated, is that the relocation should occur as soon as is practicable. The significant factors are as follows:
·I accept the mother has been the parent who has discharged more of the parenting responsibilities for the children in the years since the parties separated.
·The mother will be better placed to discharge these responsibilities in C, the location of her choice with her current husband, Mr S.
·The prospects of Mr C ameliorating the relationship between him and S are poor. As such there are likely to be significantly detrimental consequences for S, if she remains living in D, against her strong wishes.
·Such detrimental consequences for S almost inevitably will have detrimental consequences in time for N.
·Given the poor prognosis in regards to a therapeutic intervention between S and the father, I do not consider that some form of moratorium on the relocation is likely to be productive.
Obviously the relocation is not without significant detrimental consequences, the most serious of which is that N will not have the opportunity to have the most meaningful relationship with father, as would occur if she remained living in D indefinitely. The pro’s and con’s must be weighed against each other. As I say, I have come to the conclusion that the factors in favour of the relocation outweigh the ones against.
As Gummow and Callinan JJ pointed out in U v U:
“maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[45]
In this case, if the court gives accord to the outcome sought by the father, the mother will be the parent who suffers the more significant restriction on her level of personal choice, so that N but not necessarily S may have the most meaningful relationship with her father. The father places great store on his need to continue working in the line and place of employment which is most conducive to the maintenance of the way of life, which is most appealing to him. He is entitled to do so but the outcome he seeks places no such restrictions on him.
[45] U v U (supra) at 89,091
Although I accept it is likely to be very difficult for the father to move to live in C and it is obviously not his preference, such a move is clearly not impossible. The father expects the mother to re-order the priorities of her life to emphasise the needs of the children, as he perceives them, but is not prepared to do such prioritising himself. As Hayne J said in U v U:
“If effect is to be given to those principles, [the principles underlying Pt VII of the Act] it must not be assumed that one parent (the father) cannot move and the that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of his parents, let alone the interests of one of them.”[46]
[46] U v U (supra) at p 89,103
Considerations of this kind assume greater importance given my finding that the mother has, up to this stage, provided the majority of the significant parenting for both the children concerned and will certainly continue to do so, so far as S is concerned. In such circumstances, it seems unwarranted that she should bear commensurately more of the personal restrictions which flow from the parties’ parental relationship with S and N than the father.
In the event that the father is unsuccessful in his primary application, so far as the relocation is concerned, it is his position that both children should spend ten weeks of the twelve weeks of the school holidays available in D with him. The mother’s position is that it should be seven weeks of the twelve available. Given that the mother will be engaged in the workforce in C, as will the father most likely be in D, during such school holidays, I think the mother’s proposal is the more feasible one. I do not think that it is likely to be in the children’s best interests that they spend comparatively little holiday time with the mother. I also accept that S has expressed some willingness to come to D with N during the school holidays. Although I concede that her views may be fluid in this regard.
After some consideration, I have come to the conclusion that it is appropriate that the children spend four weeks of the end of year school holiday with the father; the whole of the mid-year school holiday (ordinarily two weeks); and either the whole of the end of first term holiday or the end of the third term holiday in any year (again ordinarily two weeks) at his election.
I have already indicated my discomfort about the lack of material from the parties regarding the payment of the costs of the children travelling between C, D and return in future. In those circumstances I believe that it is reasonable that I make orders that would see the parties contributing equally to the costs of the travel involved.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding three hundred and two (302) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C W
Date: 17 January 2007
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