Cales & Cales
[2009] FamCA 7
•12 January 2009
FAMILY COURT OF AUSTRALIA
| CALES & CALES | [2009] FamCA 7 |
| FAMILY LAW – CHILDREN – With whom children live – Relocation |
| APPLICANT: | Ms Cales |
| RESPONDENT: | Mr Cales |
| FILE NUMBER: | NCF | 358 | of | 2006 |
| DATE DELIVERED: | 12 January 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cohen J |
| HEARING DATE: | October 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| SOLICITOR FOR THE APPLICANT: | Kinnear & Company |
| COUNSEL FOR THE RESPONDENT: | Mr Serisier |
| SOLICITOR FOR THE RESPONDENT: | Connah Steed & Co Solicitors |
Orders
That the parties have equal shared parental responsibility for J born … March 2002 and E born … October 2003.
That the said children shall reside with the husband:
a.from 6pm on Friday to 6pm on Sunday or on a long weekend 6pm on Monday on each alternative weekend during the children’s school term;
b.for the first half of all the children’s school holidays which commence in an odd numbered year with the first half to commence on the breakup of school on the last day of the school term and end at 6pm on the last day of the first half of the immediately following school holiday period;
c.for the second half of all the children’s school holidays which commence in an even numbered year with the second half to commence at 6pm on the last day of the first half of the school holiday period and end at the commencement of the first day of school in the immediately following school term;
d.during each school term from the commencement of school on each Wednesday until 7pm that day;
e.each Father’s Day from 6pm on the Saturday immediately preceding it until the commencement of school on the following Monday if it is not otherwise a day when the children would reside with the husband;
f.on the husband’s birthday each year:
i.if it falls on a school day when the children would otherwise reside with the wife from immediately after school on … March to the commencement of school the next day or if the next day is a weekend or non school day until 9am the next day if it is not otherwise a day when the children would reside with the husband; or,
ii.if it falls on a school holiday or a non school day when the children would otherwise reside with the wife from 6pm on the preceding day to 7pm on the father’s birthday.
g.From 6pm on Christmas day to 6pm on Boxing day in each even numbered year commencing in 2010.
That the children shall have telephone contact with the husband
a.once on each weekend during school term when they are residing with the wife at a time or times of the children’s choosing or by agreement or if there has been no such contact by 6pm on Sunday then at 6pm that day for not less than 5 minutes and not more than 10 minutes per child;
b.once during the weekdays when the children are residing with the wife during each week of the school term at a time or times of the children’s choosing or by agreement and if there has been no such contact by 6pm on each Thursday then at 6pm on each Thursday for not less than 5 minutes and more than 10 minutes per child;
c.once in each cycle of two days when the children are residing with the wife during each school holiday period at a time or times of the children’s choosing or by agreement and if there has been no such contact by 6pm on each second day of such cycles than at 6pm on the second day of each such cycle for not less than 5 minutes and not more than 10 minutes per child; and,
d.once before 8.30am on each child’s birthday which falls when the children are residing with the wife for not less than 5 minutes and more than 10 minutes per child.
That the wife shall do all things necessary to facilitate the telephone contact required by order 3. and ensure it occurs and is hereby restrained from doing anything to obstruct or interfere with such contact and shall not permit the children to have distractions such as but not limited to television, computer games and extracurricular activities at times when such contact is due or taking place and shall at all times keep the husband informed of the most immediate telephone number by which the children can be contacted and shall not listen to nor allow any other person to listen to conversations between the husband and either child.
That for the purposes of implementing order 2. the husband or his agent shall collect or deliver the children when residence with him is due to commence or end and in the event that such collection or delivery is not to be at the children’s school or schools it shall be to or from the wife or her agent at the front door of the wife’s home.
That the wife is hereby restrained from moving the children’s home when they are living with her to any place outside the circumference of the area within a radius of 30km from the Sydney GPO.
That the said children shall reside with the wife:
a.at all times other than those provided for in order 2. herein for so long as she resides within the area provided for by order 6. herein; and,
b.notwithstanding any general provision to the contrary in order 2. herein
i.each Mother’s Day from 6pm on the Saturday immediately proceeding it until the commencement of school on the following Monday if it is not otherwise a day when the children would reside with the wife;
ii.on the wife’s birthday each year if:
1.if falls on a school day when the children would otherwise reside with the husband from immediately after school on … September to the commencement of school the next day or if the next day is a weekend or non school day until 9am the next day if it is not otherwise a day when the children would reside with the wife; or,
2.if it falls on a school holiday or non school day when the children would otherwise reside with the husband from 6pm on the preceding day to 7pm on the mother’s birthday; and,
c.from 6pm on Christmas Day to 6pm on Boxing Day in each odd numbered year.
That the children shall have telephone contact with the wife
a.once on each weekend during school term when they are residing with the husband at a time or times of the children’s choosing or by agreement or if there has been no such contact by 6pm on Saturday then at 6pm that day for not less than 5 minutes and not more than 10 minutes per child;
b.once in each cycle of two days when the children are residing with the husband during each school holiday period at a time or times of the children’s choosing or by agreement and if there has been no such contact by 6pm on each second day of such cycles than at 6pm on the second day of each such cycle for not less than 5 minutes and not more than 10 minutes per child; and,
c.once before 8.30am on each child’s birthday which falls when the children are residing with the husband for not less than 5 minutes and more than 10 minutes per child.
That the husband shall do all things necessary to facilitate the telephone contact required by order 8. and ensure it occurs and is hereby restrained from doing anything to obstruct or interfere with such contact and shall not permit the children to have distractions such as but not limited to television, computer games and extracurricular activities at times when such contact is due or taking place and shall at all times keep the wife informed of the most immediate telephone number by which the children can be contacted and shall not listen to nor allow any other person to listen to conversations between the wife and either child.
That publication of the reasons for judgment herein is reserved to 10am 12 January 2009.
That the time for lodging an appeal is extended to one month from 12 January 2009.
That costs are reserved for one month from 12 January 2009.
IT IS NOTED
Pursuant to s.65D(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto.
IT IS NOTED that publication of this judgment under the pseudonym Cales & Cales is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCF 358 of 2006
| MS CALES |
Applicant
And
| MR CALES |
Respondent
REASONS FOR JUDGMENT
In these proceedings the parties agree that the children should principally reside with the mother and there should be “joint parental responsibility” or, in more technically precise terms, equal shared parental responsibility. I shall make such an order. The central issue is on whether the children should live in Sydney where the husband lives or the Hunter Valley where the wife lives. There are subsidiary issues which are raised by the practical considerations inherent in the determination of the location issue.
The children are J who was born in March 2002 and is, therefore, now approaching seven years of age, and E, aged five and born in October 2003. The mother and children currently live in Sydney’s northern suburbs in the former matrimonial home but usually stay at C in the Hunter Valley from Wednesday to Sunday nights on non-contact weeks and from Wednesday evening to Friday afternoon on contact weeks. This is the wife’s parent’s home. The wife wishes to purchase a home in the same area. The husband lives in an inner Sydney suburb and wishes to limit the children’s residence to within 20km radius or 30km by road from his residence.
The cases of each party can be summarised quite simply, as they clearly were by Counsel at the hearing. The mother says:
a)she can better afford to live in the Hunter than in Sydney because the cost of living, especially of suitable housing, is cheaper in the Hunter. The former matrimonial home will have to be sold for the parties to justly divide their property;
b)her parents and sister live in the Hunter Valley. This provides better family support for her than she will have if she lives in Sydney. The children have a good relationship with the maternal grandparents;
c)her employment in the IT industry allows her to work from home;
d)the children’s and her own lifestyle and lifestyle aspirations are more suited to rural life, especially in the Hunter Valley;
e)she will be less stressed if she lives in the Hunter than if she lives in Sydney and the children will thereby benefit from her consequentially better ability to care for them;
f)she encourages and will continue to encourage the children’s relationship with the husband;
g)it is practical for the husband to be able to spend substantial and significant time with the children if they live in the Hunter Valley, and,
h)she communicates well with the husband on matters relating to the children.
The father says:
a) he has played a significant part in the children’s upbringing to date;
b) he and the wife brought the children up equally until separation and it will be to their detriment to be distanced from the husband;
c) relocation from Sydney will reduce his and the paternal grandparents’ time with the children to a level which will be insufficient and not substantial and significant;
d) for two years before May 2006 the children were cared for the paternal grandparents for three days each week, so are very close to them;
e) since the husband moved out of the former matrimonial home on 2 December 2005, with some exceptions, the father and paternal grandparents have spent Wednesday evenings with the children in addition to weekends;
f) the children have benefited and will continue to benefit from the time they spend with him and his parents;
g) travel for contact will place unnecessary strain on the children if they live in the Hunter Valley;
h) the father’s participation in the everyday lives of the children will be restricted by a move out of Sydney;
i) the children’s sporting and social activities will be inhibited by weekends and holiday contact if they move out of Sydney;
j) the children have expectations of contact with the husband and paternal grandparents which will be frustrated by a move to the Hunter Valley; and,
k) the parties do not communicate properly and distance will make this more difficult and questionable.
The wife is aged 35, is in good health and is employed in IT. The husband is a few months younger than the wife and describes himself as a marketeer. There is nothing to suggest he is not in good health. The parties married in February 1998, separated under the one roof on 20 November 2005 and divorced on 15 May 2007. The wife is not in any significant romantic relationship whereas the husband now lives with Ms O, who is a “brand manager”. Their cohabitation commenced in January 2006. The husband had moved out of the former matrimonial home in early December 2005. He lived with his parents for a short time before moving to Ms O’s home.
The wife claims that she has always been the girls’ primary carer. The husband claims more involvement in their care than the wife concedes. The precise involvement of each party with the children is of lesser importance than it might ordinarily be because the parties agree that the wife should continue as their principal career. It, nevertheless, has relevance because a move by the children to the Hunter Valley will inevitably reduce the time the husband will be able to spend with them as well as eliminate much of his involvement in their lives which they would otherwise enjoy.
Each child was breastfed for a few months, so would have developed an early attachment to the mother. When they were subsequently bottle fed the father helped with this and, until separation, did all the other things a parent whose role was subsidiary to that of the wife might do. He worked full time outside the home.
The wife went back to work when J was five months and probably did much the same after E was born. She mostly worked full time but was able to spend two days each week working from home. At first, both sets of grandparents helped with the care of the children while the parties were at work. The parties engaged a nanny for one day each week for about six months during the time between the births of the children and their attendance at pre- schools.
By then, most of the child care when the parties were at work was done by the husband’s parents. Over a period of three years, one or the other or both cared for the children on the three days of each week when the wife worked away from home. They would usually arrive at the parties’ home before the children woke in the morning and remain until after the children had dinner with the parties in the evening. When the children were attending day care they would take them. They would also collect them and take them to their home until one or both of the parties would pick them up later. I accept the paternal grandfather’s evidence, which I regard as important on the issues relating to relocation, that in the two years leading up to the end of May 2006 the grandparents spent more than 20 hours each week with the children, providing all the care they needed when they were with them.
The wife’s parents were more involved with the children before they retired in September 2003. They lived in Sydney near the parties until their retirement. They then moved to C in the Hunter Valley and until separation necessarily had much less involvement with the children. As E was born just one month after this move, she did not have much involvement with the maternal grandparents before separation, but J was cared for by the maternal grandparents on about one day each week until their retirement.
In late May 2006 it was apparent to the parties that their marriage was at an end. At this time the wife did something which says very much about her and, to me, confirms the impression I have otherwise formed about relevant aspects of her character. It is appropriate to state my overall impression of the wife. She is exceptional in her level of determination, wilfulness and self-indulgence, lack of ability to compromise to meet the needs of others and lack of empathy and ability to engage in interpersonal relations. She appears to me to be very controlling; much more controlling than the husband who she claims is very controlling. By comparison, the husband does not appear to me to be controlling or to have any exceptional; meaning out of the ordinary, characteristics. I should also add that I found the husband to be a more credible witness than the wife. She seemed to me to be in the habit of exaggerating for tactical reasons. She also gave me the very strong impression that she often adopted what appeared to be reasonable stances and engaged in what appeared to be significant acts of compromise or claims of preparedness to compromise for tactical purpose when her real attitudes were much less favourable to her case. The other witnesses I saw in the witness box; the paternal grandfather, the maternal grandmother and Ms O, impressed me as basically decent and pleasant people who would only have a good influence on the children and who would be likely to be able to form proper loving relationships with them, although the maternal grandmother also seemed to be more controlling in her nature than is usual, but still well within acceptable limits. She is an ex-school teacher.
The incident which demonstrates the wife’s character is her unilateral termination of the arrangements which had existed between the parties and the paternal grandparents. Contrary to her claimed willingness to communicate with the husband about the children’s welfare, she did not consult him or them about it. Until May 24 May 2006, the paternal grandparents not only had close ties with the children, they regarded themselves as close to the wife and had not involved themselves in the marital dispute nor allowed their perceived relationship with the wife to be undermined by it. They thought their relationship with the wife was very good. She had even confided in them about her marital problems. Yet, on 24 May, she sent an email to the husband and paternal grandparents. The email is typical of many the Court sees. It is a manifestation of what I consider is a major weakness in the wife’s case on her ability to communicate with and consult the husband about the future of the children, and her ability to avoid prolonged dispute and mollify conflict. The husband’s relevant attitude, too, is displayed to some degree by the incidents involved. They tend to show that he, too, is lacking in ability to communicate with the wife about the children.
The email the wife sent to the husband and paternal grandparent’s was to notify them of arrangements she had decided to put in place which affected the paternal grandparent’s future contact with the children. The arrangements effectively denied the children any entrenched time with the paternal grandparents but left them in a situation where contact would be dependent on the wife’s whim and the arrangements between the wife and the husband which they could expect would allow them to share care with the husband either contemporarily or at the expense of the children’s time with the husband. The change was very significant considering the time the children had spent with the paternal grandparents in the previous two years.
The wife’s email is couched in unpleasant terms and is full of self-justification. It has clearly been carefully composed to achieve the wife’s end of appearing to be reasonable and to be acting in the children’s best interests in the circumstances which had arisen. But it leaves no room for consultation or compromise and is really much more a vindictive reaction to the wife’s disappointment with the husband than any attempt to avoid conflict. In fact, the calculated and immutable nature of the email appears to have been intended to increase conflict, as it did, and nearly certainly was not made with the children’s welfare in mind, as the paternal grandparents pointed out in their emailed responses.
The husband’s earlier inappropriate decision to refuse communication with the wife was, I find, no more than a poor excuse for the wife to notify the grandparents of her decision in the way she did. However, it reinforces the impression I was given in these proceedings that the parties are likely to continue to have difficulties with communication despite recent examples of some level of ability in the parties to speak to one another and appear to behave civilly to one another. In each case, these were initiated by the wife at what seem to have been tactically convenient times.
Lest it be thought that there has been an overreaction to the wife’s decision to stop more contact with the paternal grandparents, her actions and those of others which are relevant to it should be examined. It firstly should be emphasised that the wife essentially justified the change in arrangements by raising two matters. The first was her acceptance of a “job opportunity” which she said allowed her to spend more time with the children. She actually increased their time at preschool from two to three days per week by adding Monday to their previous attendance on Tuesdays and Wednesdays. Her justification for this was twofold. She said the children would have more consistency in their routine. They already had a consistent routine. Nevertheless, her plan to transport the children to and from preschool herself in place of the paternal grandparents may be thought to have some benefits for the children as well as some detriments. Her second justification, very significantly, emphasised the benefits of the new arrangement for J in preparing her to commence school at the start of the next year, 2007. This stance needs careful consideration because of the significance I perceive in it when seen with other actions by the wife.
J is said by both parties to be a gifted child. The wife claims she could read newspapers and short stories by the age of 3½. This indicates she is extraordinarily advanced intellectually, if it is true. At the commencement of the school year in 2007 she would have been about 4 years and 11 months, which would seem to be an appropriate age to start school for a child so gifted. It would appear to be sensible and appropriate to get her better prepared for school by extending her time at preschool. If anything one might think that such an advanced child would be better served by commencing school even earlier.
At this time the wife was intent on retaining the former matrimonial home in Sydney’s north. Her email to the husband of 29 May 2006 makes this quite clear. Between 1 June 2006 and 6 August 2006, about ten weeks, except for a short visit at a park, the paternal grandparents were only able to see the children when the husband had contact with them on one weeknight each week, usually Wednesdays. The wife resisted the husband’s attempts to see more of the children, so, in August 2006, the husband filed an application for interim orders designed to give the children much more time with him. By the middle of 2006, or at the latest by 24 July 2006, the wife must have realised she would not be able to keep the former matrimonial house. On 25 September 2006, she filed an Amended Application for Final Orders in which the amendment was to seek the sale of the matrimonial home. She had accepted the stance the husband had taken all along that the home would have to be sold. The significance of these matters in the children’s proceedings is that by 24 July 2006, according to the wife’s affidavit in paragraphs 250 and 251, the wife had decided to live in the Hunter Valley with the girls. The question of their education had become an issue. The wife attempted to put her case in a resume made to support her argument for living in the Hunter which she sent to the husband. The husband opposed it. The wife included the school in the Hunter which she proposed the girls would attend. The wife suggested that she and the husband make an appointment to inspect it. There was an obvious assumption by both parties that J would start school in 2007. At the time, nothing had been said to refute it. In fact, the wife told the husband that she wanted to enrol J in school to start at the beginning of 2007.
During 2006, the wife, without consulting the husband, took J to a psychologist, Ms W. She claims she felt J’s behaviour had changed since the parties’ separation. The first appointment was in Mach and the last was 4 November 2006. The husband attended some of these. She has placed nothing before the Court to indicate what, if any, recommendation Ms W made. One should therefore assume that if Ms W had felt that J would not be ready to attend school in 2007 she would have advised the parties. The father said her advice to the parties was that they should ensure that both maintain a high level of involvement in her life. I accept that this is likely to be the advice she gave because there were, and still are, no significant complaints about the husband’s parenting and it is accepted that both girls have a very good relationship with him. Part of the wife’s case is that she will ensure this situation is maintained. Accordingly, it is highly likely that Ms W made no suggestion that J be held back from attending school for an extra year.
The last appointment J attended with Ms W was on 4 September 2006. Yet the wife claims, in her affidavit, that by August 2006 she was already concerned about J’s readiness to start school in 2007. She actually states that in August she became “increasingly” concerned. The wife purportedly acted in this concern by telling the husband nothing. But she seems to have been preparing her case, because on 5 November 2007 she gave him a copy of an article by a school principal which must have discussed this type of possibility. The husband soon appreciated that the wife wanted to delay J’s enrolment at school until 2008.
The wife claims to justify her attitude. By 4 November she had consulted her sister whom she says has an early childhood degree and had spoken to J’s preschool about her concerns about J. She says her sister advised her that J would not be ready for school in 2007 and that the kindergarten “confirmed my concerns”, whatever that means. But apparently she did not consult Ms W or, if she did, did not get a favourable reaction. It seems to me to be strange that J, who the wife describes as “an intellectual” and who was so interested in learning that by the age of 3½ she was able to read “short stories” and “the newspaper”, might be considered to be a candidate for being held back in her education rather than advanced as a remedy for minor behavioural problems which, if they existed, the wife knew were largely caused by the marital breakdown. Ms W had told her this. It is, in the circumstances, also strange that there is no affidavit evidence from the wife’s sister, the preschool teacher or Ms W.
The husband enrolled her at B Primary School in October 2006. On 9 November 2006 the husband wrote an email to the wife which in part was:
…I cannot comprehend why you would even consider [J] not starting school next year. In your own affidavits you have stated that you wanted [J] to commence school next year in [the Hunter Valley] and we have always discussed [J] and her schooling with the year of commencement being 2007. Last week it obviously dawned on you that [J] would need to start school in Sydney next year and that would be a hurdle in your bid to move to the Hunter. At that time, completely out of the blue, you have started with questions about [J’s] readiness. When I questioned your reasoning you have not been able to give it as you obviously have no solid reasons…
…Discussions on [J’s] schooling to date have always been around how we can ensure she is challenged in her scholastic pursuits, as she has always been so gifted mentally. Never would we even have thought to question her readiness. Your move to increase her to three days a week at pre-school was in readiness for her starting school. You said to me only a couple of months ago that we need to get this court case sorted so that it does not impact on [J’s] schooling next year. This all shows that you know [J] to be ready. This tactic will be damaging to our child’s development should you continue with it. Please start being the mother you keep telling everyone you wish to be and actually put [J] first.
The literature that you gave me has no author (even though I requested you let me know who wrote it). When reading through it it illustrates to me how ready [J] is for school. [J] can be clumsy at times, and in the document you gave me it said that this may mean we need to get her eyesight checked. So let’s do that. Other than that she meets the other requirements. This is not to say that [J] does not have areas of development or weakness (like any child she does), but these are things that will develop in school. Her excelling at school will also help with building her confidence and help with development in other areas as she gains some good wins.
Can you imagine the level at which [J] will be reading, writing, spelling, conversing and counting if we were to hold her back another year. It will be to the point that she is freakishly ahead of the other children, which will lend to boredom, retard her development and also lead to isolation as she does not ‘fit in’ and would risk being ostracised. She will also be bigger and significantly older than the other children (in some cases over a year older), which could also lead to her not fitting it. [J] only wants acceptance by those around her. What you propose means that she will risk not having that and imagine no reason that I can ascertain, other than to help your court case, is very disturbing. That someone could imagine doing something so hurtful and cruel to our beautiful little girl fills me with grief. The fact that this person is her mother makes me almost despondent about her future if this is the way you will treat her, as a pawn to get what you want.
Not only that but she is so excited herself that she starts school next year. Please do not crush her spirits with talk about her not getting to do that. Please confirm that you intend for [J] to start school next year. Please, please, please [name], I beg you…..do not do this to [J].
[The husband]
The next day, 8 November 2006, the wife opened a letter from a preschool Director. This letter is the only objective evidence about the advice from the preschool. It is not advice to hold J back. It appears to have been written to meet the wife’s request or demand to provide her with ammunition in her argument to hold J back. If it really is such advice, I reject it. The letter is:
Dear [Ms Cales],
Further to my recent conversation with you regarding [J’s] readiness to attend school at the beginning of 2007. I wish to confirm the following:
Both children have had to cope with many changes to their everyday living and routines and as they are so young it is quite common to see negative behaviour and excess attention seeking. This behaviour often eases up with time and consistent routines.
Since there is not much of an age difference between [J] and [E] both children draw on each other for companionship and love and comfort. Centre staff often observe many hugs and kisses between the girls and [J] more so addresses her conversation always including [E] whom she refers to as her sister and whatever they do together.
[J] who has a March birthday turned 5 this year and although she has attended the Centre for the past 2 years is a gentle child who loves her books and pencils and would spend hours so occupied unless the Centre staff encouraged her to participate in group interaction.
During outside play [J] often spends her time in the san pit and is reluctant to run, climb or play games in a group unless encouraged by staff. She will always participate in the game if organized and supervised by a staff member.
[J] also takes time with her living skills, i.e. washing hands, toilet, meal times etc and has to be encouraged by staff to manage time.
[J] attending school in 2007 means that the two children will be separated whilst there is still so many changes happening which they have no control over and at this age many children cannot verbalise their concerns and anxieties.
Our experience has shown that most young children have difficulties coping with numerous changes and new environment all happening at the one time and this being the case for this particular family it is most advisable that [J] and [E] are not separated for the time being as both children take comfort from each other emotionally. They already have to cope with changes that cannot be avoided in the circumstances.
It is quite common for parents to hold back to children attending school in this year they are eligible to go. For these children the Centre has a special programme addressing individual needs, this will be the case for [J] if she stays back at the centre.
Dear [Ms Cales] these recommendations cover a wholistic approach for the well being of the family. Many parents are opting to hold back children as repeating in school is not a positive experience nor a good option. You are most welcome to a meeting if so desired and I reassure you of my support whatever the decision.
I have also enclosed information on a Seminar organized by Northern Sydney Health on “Managing Separation Anxiety” which is worth attending.
My sincere best wishes
Yours Sincerely,
[…]
Director
On 13 November 2006, the husband accused the wife of influencing her sister’s opinion and of relying on advice from preschool when it might have been influenced by its economic benefit. He wrote to her on that date saying “…I put [J’s] name down at [B School] … because I know that our case would not be resolved until late March [2007] and that [J] would need to start school. As you would be living in [B in the northern suburbs] it seemed the most logical choice as it had been the school that you and I had always said we would send [J] to”. He must have already accused the wife of manipulating the situation to meet her own ends because the wife replied to this accusation by sending an email in which she said “your comments….leave you liable to the same accusations as you have been levelling at me, i.e. that I am manipulating the situation for my own purposes”. The wife certainly knew what the husband was alleging. She sent another email the next day which shows she also well knew that she could use J’s welfare by paying lip-service to it. She said of J “her emotional and social wellbeing is paramount”. This statement was made in a context which is worthwhile to repeat here because it highlights the wife’s hypocrisy. She wrote:
I need to remind you that the discussion whether to send [J] to school next year is not actually amicable as you have stated below. Her emotional and social wellbeing is paramount and I would suggest that if you actually believed that she should start school because she turns five next year, then you would have provided me with some meaningful research that confirms your apparent belief.
The wife, in these proceedings, failed to do what she claims the husband should have done; she failed to provide any expert opinion to justify the unusual course she took. With such a bright child it would be usual to send her to school as early as possible.
When the parties spoke by telephone at that time he also asked to have J independently assessed on the question of readiness for school. The wife rejected this request. The rejection suggests a lack of bona fides. Generally, the wife’s tack in this dispute was to divert attention from the real issue by attacking the husband for enrolling J without her knowledge.
It is much more probable than not that the wife realised that, if J commenced school at B School in 2007, it would provide the husband with a reason in his argument that her move to the Hunter should not be permitted. The husband would be able to rely on the destabilising factor of a change in school, so it was tactically better for the wife to delay J’s commencement until 2008, by which time the wife hoped to be living with J in the Hunter.
J did not commence school in 2007.
The husband ultimately accepted the wife’s stance. In his affidavit, he acknowledges that the kindergarten advised this course. Presumably the wife’s sister did too. It is of great concern that he was eventually overborne by the wife’s insistence when it seems clear that there was no reason good enough to withstand critical examination at Court to hold J back. I do not accept the wife’s claimed reasons for failing to commence J at school in 2007.
The wife made an enrolment application on 8 June 2007 for J to start at a school in the Hunter Valley in 2008. By February 2007, the wife had already enrolled the children in swimming lessons and ballet lessons in the Hunter Valley without consulting the husband, obviously against his will. These were to take place on a Thursday in circumstances where the husband was entitled, by interim consent orders made 15 November 2006, to have contact with them each Wednesday afternoon on each alternate weekend commencing of Friday afternoon and the wife was obliged to notify the husband of any residence move from B. The wife was really already in the process of moving the children to the Hunter Valley. Enrolment at B Public School would have made this process impossible. She undoubtedly put her own wishes ahead of J’s proper needs.
The wife’s solicitor’s argument in a solicitor’s letter of 27 February purports to justify the enrolments in the lessons on the basis that the ordered alternate weekend contact was limited to school term and therefore did not apply while J or E were at preschool is ridiculous. There is no real doubt that the orders were intended by both parties to give the husband alternate weekend contact forthwith. If they were not, and the wife did not agree and did not consent to orders with the meaning given to them by the husband, the wife was quite unreasonably denying the children proper contact with their father. If the latter is the case, this would strengthen my view that the wife was acting out of self-interest in not commencing J at school. This must be the case, because the wife’s solicitor’s letter clearly says it is. She points out, in my assessment both bizarrely and erroneously but with conviction, that, in effect, the consent orders of 15 November 2006 were not intended to operate until J commenced school in 2008. Presumably, her stance at the time the letter was written was that only Wednesday contract would be required by the orders and allowed by the wife until 2008. The express refusal in the letter of the wife to further talk to the husband or discuss the matter by email also undermines the wife’s case on the question of communication.
I have taken care to include much of the evidence available to me on the issue of J’s schooling because I regard it as important in discerning the parties’ respective attitudes, especially to their children’s welfare. I conclude from it that the wife will use the children to achieve her own ends rather than regard their welfare in the same way as the Court does; as paramount. In saying this, I do not suggest that parents in general or the wife should always put their own needs to one side in an obsessive quest to place their children first. What I intend to make clear is that parents should not do as the wife has done; manipulate their children’s lives to the children’s clear disadvantage in matters which are not only of critical importance to their general welfare but which they know is of such critical importance. Here, the wife used the paramount importance of the children’s best interest as an excuse for her selfish and successful attempt at manipulating the circumstances to what she believed would be her tactical advantage.
This is not the only example of the wife’s reliance on tactics in her quest to get her own way. She has alleged that J told her that the husband showered with both girls and Ms O. It is irrelevant to me which, of the wife’s claim that the husband admitted this happened once or the husband’s claim that when he showered with the girls Ms O was not present and that he had showered with J before separation, is true. Whatever the truth may be, the wife claims to be encouraging contact with the father, so his moral status is irrelevant. Her claim has nothing to do with the children’s welfare, it is merely tactical. I should add that, in the absence of convincing expert evidence, I cannot say that what is alleged by the wife in this instance might have adverse consequences for the children. There is a very broad spectrum of attitudes to private family nudity in the community. This Court is not in a position to regard any specific behaviour as preferable or as warranting criticism without convincing expert evidence.
The wife claims that the husband has not always been as interested in contact with the children as he now claims to be. She relies on some instances when she has offered him the opportunity to care for the children and he has refused the offer. The husband explained that the offers were made when it was not reasonable to take them up but that, usually, it was the wife who was inflexible or obstructive towards contact. I do not intend to itemise the instances each rely on. It is sufficient to say that I accept that, generally, the husband sought more contact than the wife would permit until interim orders were made. The wife was in the habit of asking to the husband to babysit when it suited her but otherwise put unreasonable conditions on contact such as requiring the husband to refrain from bringing the children into contact with Ms O, unreasonably limiting the amount of time for contact occasions and requiring contact be at the former matrimonial home.
I accept the husband’s evidence that after the parties separated the wife asked the husband to continue living in the former matrimonial home so he could help her with the children, which he did. Once he left the home, he usually collected the children from preschool at about 4:45pm and took them to the former matrimonial home at B in Sydney’s north on one night each week. He would care for them there until the wife arrived home at about 7pm. He would telephone the children each evening. The wife began to oppose this and asked the husband to reduce the frequency of his calls to the children. By July she was failing to answer the telephone on most occasions when he called. He would always call at about the same time. Thereafter, he was able to speak to them by telephone about twice a week.
I regard the wife as being too restrictive with contact although I accept that a telephone call everyday was probably more than was convenient for her. Nevertheless, the husband had, until May 2006, been seeing a lot of the children and it could not be held that continued contact by telephone each evening is likely to have been disruptive for them. In view of their ages, it was necessary that he have frequent contact with them if their relationship with him was to be optimally maintained.
By August 2006 the wife commenced, without valid reason, to restrict the husband’s midweek contact with the children. She took them overseas for about three weeks. However, it was reasonable for her to do this and the husband did not attempt to prevent the trip. However, when she returned she refused further midweek contact, although she allowed weekend contact. Contact was regularised by consent interim orders which were made on 15 November 2006. These provided for contact between the father every alternate weekend from 6pm on Friday to 6pm on Sunday or Monday or on a long weekend, for half the school holidays and on special days. During school term each Wednesday he was entitled to have 2 hours contact with the children for as long as they were to attend preschool. Telephone calls to the children were to occur twice each week. Since these orders were made Ms O has been present during most contact periods. She and the husband were intending, when the hearing took place, to marry in early 2008. The children get on very well with Ms O and see their paternal grandparents often when they are with the husband. The husband did not obstruct the wife’s telephone calls to the children before the consent orders were made. The orders provide that she can speak to them by telephone at least once each weekend and twice in each holiday period when they are with him.
It is appropriate to reiterate the wife’s case in a more personalised although only slightly expanded manner than the statement of her case at the commencement of this judgment. Since the contact orders were made the wife has been living with her parents for much of the time.
The wife says that it will advance the children’s lives if they live in the Hunter Valley. She says she will probably buy a home in the Hunter Valley and this will leave her with funds to provide herself and the children with better lifestyles than if she remains in Sydney. She will, because she has a job which enables her to do so, mainly work from home at times of her own choice and spend quality time with the children. She will have to earn more than she is able in this job if she has to live in Sydney and will not be able to work from home, yet will not be able to maintain the lifestyle she plans for herself and the chdilren. She says the children are close to her parents and her sister and her sister’s fiancé who would live close by and that her parents will be more available to give her practical and emotional support. She claims she wants the children to grow up in the country because it provides a better quality of life for them. To quote her, she wants her “children to be able to run outside and play in the fresh air, have their beloved dogs running around the backyard with them and grow flowers”. She says the girls have experienced the country lifestyle while staying with her parents and have embraced it. Her sister and her sister’s fiancé, as well as other relatives who live nearby, will provide added practical and emotional support; support which she will not have if she lives in Sydney.
She currently spends either two or four days a week living with the children at her parent’s home. She claims J has told her she wants to continue to live at the maternal grandparents’ home and not return to B. I do not know how this could assist her case because she does not intend to live with her parents and intends to sell the home at B in any event.
She says that if she is permitted to take children to live in the Hunter she will encourage contact between the girls and the husband and offer it in a number of forms in addition to the usual. She says she will ask the girls each day if they wish to speak to the husband and if they respond affirmatively she will telephone him for them. As she says J is computer literate and can spell and read, email is a viable additional option and that photos and other items of interest could pass between the husband and the children at will with her support. She adds to this ordinary post as a form of communication. She also says that the “Skype” program could be used, so the children could see the husband while speaking to him and that the children are used to using this for other friends and relatives and would enjoy contact with the husband in this manner.
She also seems to rely on the fact that the parties do not communicate well to support her claim to live in the Hunter. I cannot understand how this factual assertion which I accept to be valid, can help her quest which, inter alia, involves the claim that if she moves they will be able to communicate well in matters involving the children. I find that it is likely that the wife is as much, if not more, the cause of communication difficulties as the husband.
The wife also relies on the prospect of continuing a communication book for her communications with the husband. She says it is “a way for [the husband] and me to communicate with each other in a non-confronting way about the girls. The other claimed benefit is that it reduces the issues which can arise at changeover times as nothing has to be discussed because it should all be written in the communication book.
She asks that that for face to face contact changeovers be at the car park at T Shopping Centre. The mother’s proposed residence in G is 66km from the father’s inner city residence, according to the most commonly used street directory. The mother points out that it would take about the same time to travel from G to T as it would from T to B. I think it is much more likely to take a little more time from T to B than from G to T and considerably more time to travel on to the father’s residence. I accept that this part of the trip would take, as the wife says, “at least 30 minutes”. She claims the whole trip from G to the inner suburbs takes just a few minutes more than two hours. The husband agrees that it can be done in this time in near ideal conditions but that it can take much longer when traffic is heavy. Travel would often be on a Friday when traffic is at its worst.
Part VII of the Family Law Act creates a regime for the process of determining disputes over issues related to the rearing of children. In these proceedings there are no allegations of significant family violence, and the few allegations of violence which the husband makes against the wife are so general and involve such minor acts that they cannot be regarded as sufficient to affect the outcome of the proceedings, especially as he agrees that the children would mainly live with the wife. There are also no allegations that the children have been abused or neglected or exposed to abuse or neglect within the meaning of these terms in the Family Law Act. Thus, there is no need to further refer to family violence, abuse or neglect in these proceedings. I shall leave such matters out of my further considerations in deciding what orders to make in these proceedings.
S 60B of the Act is the starting point for the Court’s considerations in contact proceedings. Very significantly in this case, it provides in subsection (1)(a) that it is an object of Part VII that children have the benefit of a meaningful involvement in their lives by both parents so far as it is consistent with the children’s best interests. Related to this, subsection (1)(c) makes it an object of the Act that children receive adequate and proper parenting to help them reach their optimal potential.
As seems to be well known, including by the parties in these proceedings, the best interests of children are to be paramount in the Court’s mind when deciding what parenting orders to make. This does not mean that the Court cannot or should not take other matters, such as the parties’ needs and wishes, into account. S 60CC of the Act specifies how a court determines what is in a child’s best interests. I shall return to that section.
In these proceedings one of the parties, the wife, seeks an order that both have equal shared parental responsibility. In effect, the husband is seeking much the same order. This requires the Court to consider whether it is in the best interest of the children and reasonably practical for them to spend equal time with each parent (s.65DAA(1)). As the parties are in agreement that the children should not spend equal time with each parent, I conclude it is neither in the children’s best interests nor reasonably practicable to make an order that they spend equal time with each party.
Thus, by s.65DAA(2), the Court must consider whether it would be in the best interests of the children and reasonably practicable for them to spend substantial and significant time with each parent. In these proceedings, as in all disputes over significant relocations, the meaning of “substantial and significant” in S.65DAA is of importance in determining the outcome of the dispute between the parties. The same can be said of the term “reasonably practicable”. By s.65DAA(3), only if the time a child spends with a particular parent includes weekends, holiday days and days which fall on neither, i.e. weekdays during school term or preschool term, and the time to be spent allows parents to be involved in a child’s daily routine and occasions and events of special significance to any child subject of the proceedings and also permits the child to be involved in activities of special significance to that parent can it be held that the children’s time with the parent is “substantial and significant”. Other considerations, however, can also be taken into account in determining this (s.65DAA(4)). By s.65DAA(5), the Court must have regard to the distance the parties live apart and, presumably, the distance away one of them wishes to live, the parents’ current and future ability and likely willingness to implement measures for substantial and significant contact, their ability to communicate with one another and to resolve difficulties which might arise in implementing such arrangements as well as the impact that these arrangements will have on the child as well as all other relevant factors of substance.
The orders the wife seeks would make it impractical for the father to spend substantial and significant time with the children. The distance they would live apart would put an unacceptable burden on the husband if he were to become involved to a significant degree in the children’s ordinary weekday activities and routine and most occasions which are special to the children. The children could become involved in occasional activities with the husband which are important to him and he could become involved in the occasions which are most important to the children such as their birthdays or school prize givings, but his job and life with Ms O would prevent what might be called the ordinary involvement in their lives which a father will have when they do not live with him for most of the time. Yet he can now conveniently take part in their lives on a near to daily basis. The husband’s application, if successful, would allow a regime to be established which would, very conveniently for all concerned except the wife, allow the children and the husband to have substantial and significant contact as well as proper involvement in their daily lives because it would not be prevented by distance.
As I have formed a very strong impression, despite the wife’s efforts to appear otherwise, that she is intent on distancing the children from the husband, not so much because she resents the time he spends with them, more because she wishes to distance herself from him as a reaction to her perception that he has wrongfully rejected her. To do this, she feels it is necessary to minimise the children’s involvement with him. Since separation, and even after the consent interim orders were made, she has attempted to do this. Her solicitor’s letter claiming that the alternate weekend contact was to start only after each child commenced school is a recent attempt. Her wish to move to the Hunter Valley is likely to be at least partly a result of the same wish. There is no doubt that the husband is willing; more accurately, keen, to institute all reasonable measures to ensure he has substantial and significant contact with the children.
The parties’ communication ability is poor. Both parties are equally unwilling to speak face-to-face with one another, but the wife’s case is that she is very willing to engage in and is capable of general communication by email and a communication book when the children need to be discussed.
Email communication in this instance is a far from satisfactory method of discussing matters which involve the children’s welfare. The parties, if the examples I have seen are an indication and I find they are, approach their email communications in a manner reminiscent of solicitors opposing one another in litigation about matters in dispute. They carefully state and argue their case and take the most extreme position they think they can adopt without appearing to be unreasonable or to be taking a hopeless stance, putting forward the arguments in support of it. They make few or no concessions and simply fail to attempt to seek the solution which is obvious when it does not suit their client’s interests. Here, the parties do much the same. The wife, especially, argues her point using the best interests of the children to justify her stance when she is far less interested in achieving these than in achieving her own ends. The evidence satisfies me that the wife ignores the communication book and makes unilateral decisions when it suits her. I do not accept that they have sufficient ability to communicate by it or email to overcome the need for more spontaneous and personal communication.
Children eventually reach an age when they appreciate that the way ordinary parents decide their children’s future is by face-to-face discussion where there is far less opportunity to plan an attack or defence. It is not good for them to never know a time when their parents have been able to discuss them face-to- face in a relatively spontaneous way. The suggestion by the husband in these proceedings is that even contact changeovers should be achieved with the parties rarely meeting for a personal hand over. Such a scheme, if implemented will simply lessen the prospects of the parties learning to speak to one another when the children’s welfare is at stake. The distance the wife seeks to have the children and therefore, herself, live from the husband will not assist. It is highly likely to hinder the parties’ chances of learning to communicate properly. If the husband has more frequent involvement in the children’s lives, especially at events where both parties attend, their ability to communicate face-to-face is highly likely to be optimised. Distance is likely to minimise their ability in this respect. It cannot be in the children’s interest that they rarely see their parents interacting with one another and rarely see them treating each other normally and with consideration and respect. Yet this is the likely consequence of the regime the wife seeks. The husband, too, does not seem to seek a much better regime in this aspect.
In determining where the best interests of the children lie, s.6OCC(2) must be applied. Only s.60CC(2)(a) is relevant to these proceedings because the children have not been and are not likely to be exposed to significant abuse or family violence within the meaning of these terms in s.4 of the Act, or to neglect.
Because I am of the view that the wife is and will continue to be, because she is very determined to get her own way, intent on distancing the children from the husband, the more contact between the children and the husband the greater the prospect of maintaining the meaningful relationship which they currently have. Although I am quite critical of the wife’s attitude to this situation, it must be said in her favour that the husband does not allege his relationship with the children is other than appropriately good or has actually been undermined since separation despite the wife’ claim that the children would prefer to live in the Hunter. Currently, there seems to be little or nothing remiss with the children. The wife does not suggest there is any substantial deficiency in the husband’s parental capacity. Any future relative absence from their lives is very likely to diminish the quality of the relationship between the husband and the children. A diminution of the quality of the relationship between the children and the husband has no potential to improve the children’s welfare but has a high potential to cause them emotional harm.
Although the benefit of the children having a meaningful relationship with both parents is the primary consideration in deciding what is in their best interests, there are, pursuant to s.60CC(3), additional matters which the Court must consider, so far as the evidence allows, in deciding what is in the children’s best interests. I shall deal with these in the order provided by that subsection.
The wife claims the children want to live in the Hunter because they are attached to the grandparents and prefer the rural lifestyle they can have there. I accept that they have said things to that effect, but have little doubt that the wife has set out to make them feel this way. At their ages, in fact at any age, children are likely to be easily influenced by the availability of pets, activities which are more accessible by living in the country and family claims of the benefits of country life such as “clean air”, “lack of pollution”, “healthier lifestyle” and better community living. There is no convincing evidence here and no basis for taking judicial notice of such claims. That the news media in recent times has frequently carried claims of pollution in and plans to pollute the Hunter is conveniently ignored by the wife. I cannot find one way or the other about the quality of life there compared to the areas of Sydney; middle class areas where the children might live if not permitted to live in the Hunter Valley. Country life suits some people better than city life and vice versa. I cannot say which will benefit the children more. I am satisfied the husband prefers city life. I am not satisfied the wife prefers country life. Her claim is likely to be largely a tactical one in her quest to punish the husband and get him out of her life.
The ages of the children, now seven and five, are such that their level of maturity when they expressed any desires to live in the Hunter Valley in preference to Sydney and the likely influence of the wife and probably her parents make it inappropriate to give these desires sufficient weight to affect my decision.
I have already said in discussion of other issues much of what I think the children’s relationships are with the parties, Ms O and both sets of grandparents. To be more specific, I find that the children have excellent relationships with both parents despite the wife’s claims that there have been times when contact with the husband has disturbed them, particularly J. If either child has been disturbed before or after contact with the husband, I do not accept that it was actually contact with him which caused the disturbance. It is more likely that the mother’s or her parent’s attitudes to contact could be discerned by the children and this caused any disturbance. It is likely that any disturbance has been exaggerated by the wife, if it occurred at all.
I accept that the children, who saw little of their maternal grandparents before the wife commenced living part time in the Hunter Valley, now have a good and beneficial relationship with them. I also accept that the children’s relationship with the paternal grandparents is good and beneficial despite the wife’s deliberate attempts to undermine it. I accept that since the husband has been able to have regular and frequent contact with the children he has brought them into contact with his parents enough to restore the excellent attachment the children originally had to them. I also accept the husband and Ms O’s assertions that the children have a very good relationship with her. They also probably have a good relationship with the wife’s sister and her fiancé who live in G.
I am quite satisfied that the husband is willing and able to facilitate and encourage a close and continuing relationship between the children and the wife. I am equally satisfied that the wife is unwilling to do much the same despite an ability to do so. Nevertheless, I do not regard the wife’s stance as entrenched despite her single minded determination to distance the children from the husband. I hold the view that, if the wife is permitted to take the children to live in the Hunter Valley, she will continue in her attempts to end the present close relationship between the husband and the children as well as that with the paternal grandparents. To do this will suit her purpose which is to meet her own needs. However, if she is prevented from taking the children to live in the Hunter, I regard her as likely to eventually appreciate her prospects of being able to take them to live outside Sydney are remote. Once she does, she is likely to reconcile herself to such prospects and realise that she will be able to benefit from encouraging the children to continue their good relationship with the husband and his parents who, she will appreciate, will usually be able and keen to meet her convenience and babysit for her. After all, she is a pragmatist.
Currently, J is likely to be attending school in Sydney. E is likely to be about to commence school, as she is already five. I do not know whether the parties have sold the former matrimonial home. If they have not, it is likely that it will soon have to be sold. That may entail a change of residential area for the wife and children and a change of school for J. A move to the Hunter Valley will certainly involve a change of school for her in 2009. Even though the wife has probably not purchased a home in the Hunter Valley, she is likely to live with her parents until she does if the children are permitted to relocate.
Whether the children move to the Hunter or remain in Sydney, the disruption to their schooling will not be much different. E will probably have to change from preschool to school in 2009 in any event. J may be subjected to more moves if she is permitted to live in the Hunter, but if she will have to leave B after these orders are made she, too, may not have to make more changes in school because she may have to change school irrespective of whether she lives in the Hunter Valley or Sydney. If the wife is not permitted to take her to the Hunter and finds accommodation close to J’s current school, she could be saved the disruption caused by a change in her schooling.
There is little doubt that if the children remain in Sydney they will be able to have both substantial and significant contact with the husband and his family whereas not only will this not be available on a move to the Hunter, the close relationship the children enjoy with the husband, his parents and Ms O will be diminished. A failure to move to the Hunter is likely to undermine the relationship between the children, their maternal grandparents and other relatives who live in the Hunter Valley and the Newcastle area. Of course, a move to the Hunter will place a substantial burden of travel upon the children if they are to have, as they should, contact with the husband in his home and environment and with his milieu. As most young children do not travel well, there is also the spectre of travel interfering with the quality of contact once the destination has been reached.
The expense of travel and other means of communication between the children and husband and his family is not likely to be a significant impediment to that communication if the children live in the Hunter Valley. The same can be said in relation to the wife’s family if the children live in Sydney. The reality of all types of communication other than face-to-face is that they are inferior in the absence of proper face-to-face contact and are only a default choice. It is well known that children of most ages do not like to speak to family members on the telephone. Often, immediate concrete attractions or needs are more compelling for them. This has happened in this case when the father has attempted to speak to the children by telephone. Although I have no doubt that the children will soon become proficient in the use of computers including email and Skype, if they are not already, email and Skype are limited in obvious ways and are likely to be less attractive and less beneficial to the children than face-to-face contact. The latter allows them to experience real rather than virtual closeness to their father and paternal grandparents if they live in the Hunter Valley or to their mother’s family if they live in Sydney. The practical impediment of distance will certainly reduce face-to-face contact with one side or the other. It must be made clear that I consider the children’s need for and right to have optimal real contact with their father and Ms O, who is or will soon be their step-mother, as much more important than the need to maintain such contact with their other relatives on either side despite my view that the grandparents on both sides are very important to the children, who should see as much of each as is reasonable in the circumstances.
I have little doubt that all those close to the children have the capacity to provide properly for their intellectual needs. I am not satisfied that the wife is willing to do so. Her decision to hold J back from school for a year was not justified by any evidence I accept despite the husband’s ultimate consent to this course. The same incident and the wife’s distancing of the children from the husband and his parents also leaves me less than satisfied that she is able to provide properly for the children’s emotional needs. I think she is likely to habitually overlook their emotional welfare when it conflicts with her own wants. I do not regard her as one who is sensitive to the emotional and practical need of others despite her high degree of sensitivity to her own emotional and practical needs. She impresses me as lacking an ability to understand interpersonal relations. I regard her mother as also somewhat lacking in the same skills from what I saw and heard of her in the witness box. The husband and his father are much more sensitive and skilled in this respect.
Nevertheless, as the wife has always had the major role in caring for the children, she must be given most of the credit for the relative paucity of problems the children have had. I do not regard the matters on which the wife relied to hold J back from school as being significant problems. Nor do I think they are likely to have been caused to the extent that they actually existed by any particular adverse behaviour by the wife or the husband or lack of skill in caring for her, although the marital breakdown has probably destabilised and undermined her emotional status.
The ages and maturity of the children have the relevance that I have already referred to. That they are girls rather than boys does not seem to me to be significant to the decisions I must make.
The wife raises the issue of the lifestyle of the children to say that it will be better if they live in the Hunter. The financial situation the parties will be in is relevant to this but I shall deal with it at a later stage. As for the alleged natural and rural attractions of the Hunter Valley over Sydney, I am not satisfied, on balance, that such of these which have been established or actually exist and may have influenced the children’s wishes or have been said by the wife to make country life superior outweigh aspects of Sydney which make it desirable to many as a place to live.
There are likely to be benefits in each area which to some make it a more desirable place to live. The issue here is not so much how desirable the Hunter or Sydney is, it is the affect of the desire of the wife to live there and any similar desire in the children and the consequences when weighed with the other considerations which must be undertaken in deciding what to do in these proceedings. As for the children’s alleged preference for a particular lifestyle, as I have said, they are easily manipulated and will reflect the views of either parent if that parent chooses to influence them. The problem for the children when a parent makes such a choice is that, in the context of family law conflict, it steers the children into feelings of need which may not be fulfilled and will lead to disappointment. For the wife to have done this, is yet another example of her deficits in willingness to cater properly for the children’s emotional wellbeing. The reality is that these are city children who would not feel a need for a bucolic lifestyle without the cynical manipulation of the wife. It is cynical because the wife must have realised that to encourage this before she was entitled to take the children to live in the country had the potential to disappoint them when to do so must have appeared to be of tactical value to her.
Because the wife has attempted to use the children, irrespective of their welfare, to achieve her own ends, I hold that the husband, who has not been criticised by the wife on a relevant basis which has not failed, is quite significantly more responsible as a parent than the wife.
As it is in most cases, it is, here, preferable to make orders which are as unlikely as I can make them to lead to further proceedings in relation to the children. I shall make orders which I regard as best to achieve this preference.
Paragraphs (h), (j) and (k) of s 66CC(3) do not apply to the circumstances in these proceedings, but paragraph (m) requires much of the wife’s case to be given substantial consideration. The matters covered by (m) have, in general, less weight than the need to benefit the children by ensuring they maintain a meaningful relationship with both parties and therefore to protect the relationships the husband has with the children. The latter is the primary consideration. But this does not mean that if the circumstances warrant it, matters to be considered under paragraph (m) cannot outweigh the primary considerations required in s.66CC(2).
At the heart of the wife’s case are precedents which the wife has submitted favour her relocation application. Of these decisions, there are two reported decisions which were made after the Act was significantly changed by the amendments which received assent on 22 May 2006. An unreported single judge decision, of Guest J in Evans v Kennedy [2007] FamCA 322, is the other case relied on by the wife which was decided after May 2006. It is so very brief I cannot see how it could be used to support the wife’s case. His Honour made no attempt to specifically apply ss.60CC or most of s.65DAA to the facts. He dealt with very few facts. However, he did express an opinion which he said was in agreement with Kay JA. in a decision, significantly not relied on by the wife, where Kay JA sitting alone on appeal from a Federal Magistrate indicated approval of parts of the judgment of Dessau J in M v S (2005) 37 FamLR 32. Guest J said that there is “merit” in the judgment of Kay JA about the term “meaningful”. Guest J seems to have thought that Kay JA held it to have no application to quantity of time, but regarded it as describing only the quality of time spent by a child with its parent. It is to be noted that Guest J did not say whether his interpretation of “meaningful” applied to “meaningful involvement” as it appears in s.60B(1)(a) or “meaningful relationship” as it appears in s.60CC(2)(a) of the Act.
I have read and re-read Kay JA’s decision and can find no reference to this. Kay JA appears to me to have agreed with Dessau J’s approach to determining relocation issues in the light of the amendments which were made by virtue of changes to s.60B, and additionally ss.60CA, 60CC, 61DA and 65DAA; in particular, her finding that the children’s best interests remain the paramount consideration.
I think it is fair to say that quality and quantity of time could be elements in the determination of whether there is either a “meaningful involvement” or a “meaningful relationship”. It must be realised that the essential thrust of the changes to the Act involve a recognition that quantity of time spent is important. S 65DAA(1) makes the element of quantity of time spent with a child one of the objects of the Act. It makes the meaning of “meaningful” in s.60B(1)(a) obviously include quantity considerations as well as quality considerations.
In view of this, it does not surprise me that Dessau J made no suggestion that time is not an element in deciding what is “meaningful” irrespective of the section the word appears in. I shall not follow anything Guest J has said in Evans v Kennedy [2007] FamCA 322. Thus, the cases upon which the wife relies which have been decided after the 2006 amendments do not help her case. The two which I should follow are examples of the manifest intent of the Act that there is no presumption for or against relocation but that such applications must be decided by reference to the overall scheme of Part VII of the Family Law Act 1975, as amended, and the application of the facts to the considerations and presumptions required by that part in the light of its objects as stated in s.60B.
There is little value in canvassing the reported decisions relied on by the wife which were made before the 2006 amendments. It is not that they have been reversed by the amendments, but that they say what is quite unequivocally established; that the proposals of the parties and any more appropriate regime must be considered in the light of the evidence which has been accepted without placing an onus on either party and that then, after weighing the objects of the Act, the necessary considerations and the wishes and situations of the parties, the best interests of the child which must be determined according to the Act, remains the pre-eminent matter which is to be part of the balancing exercise which results in the Court’s conclusion. It is important to note that there is no principle, contrary to Nicholson CJ’s apparent suggestion in ZN & YH and The Child Representative [2002] FamCA 453, understandably unreported, importing the presumption of a right of freedom of movement into decisions under Part VII of the Family Law Act. Nothing in that Part is an impediment on an individual adult’s freedom of movement and there is no onus on a party to prove or disprove such a right. No order of mine will prevent the wife from living in the Hunter Valley. s 92 of the Constitution, which the Chief Justice relied on to justify his suggestion is, in any event, only applicable to attempted restrictions on interstate trade and commerce and so far as it protects travel, it only protects freedom of interstate travel.
The wife relies strongly on the claim that the cost of living in the Hunter Valley will be less. She says that not only will she be able to afford a better house, its lower cost will allow her to give the children advantages she could not otherwise afford. Although the specific evidence is scant, and because one cannot know what houses will be available for purchase one cannot know what the wife would be able to purchase, I accept that the wife is likely to be able to purchase a suitable house in the Hunter Valley, for considerably less than she would need to pay in Sydney. I accept that she will have to earn less if she lives in the Hunter Valley, but not that it is likely to enable her to spend more time with the children because she is likely to have the ability to work more at home and choose her working hours.
The ability to work from home and choose her work hours will probably benefit the children, but as she is likely to keep her current job, whether she lives in Sydney or the Hunter, but needs to go to her Sydney office on average twice each week, she will have the most time with the children if she lives in Sydney. She will have the same capacity to choose work hours and work at home irrespective of the location of her home. I do not accept that she will be forced to obtain a higher paying job if she lives in Sydney or that, if she does, it will be any less flexible than her current job. There is no evidence that, for the type of work she is qualified to do, there are higher paying jobs available.
I do not accept that if she has more to spend this will give the children any discernable advantage. Any supposed advantage is as likely as not to be more apparent than real. The situation is much the same as her attempt to compare city life with country life. In the absence of acceptable concrete or expert evidence, just as the Court simply cannot say whether the greater freedom of certain types of choice inherent in living in Sydney makes such living better than the greater freedom of choice of other types inherent in living in the Hunter Valley, the Court cannot say that it is better for the children, within the possibilities likely to apply in the wife’s circumstances, for her to have more or less disposable income. Experience teaches one that “more” should not be assumed to be “better”. Who can say of a child who is not going to be deprived in any true sense whether it will do better with or without certain indulgences or supposed advantages? With the child support she receives and her wages or social security payments, her net income is not quite $2000.00 per week. It cannot be said that those who earn that and live in Sydney are in other than a middle class situation which will enable their children to live without want.
I accept that practical and emotional support will be more readily available to the wife if she lives in the Hunter Valley. I am not convinced to the requisite degree that such support will significantly assist her in her parenting ability or will otherwise benefit the children. If she lives with the children in Sydney, the husband and his parents will be able to take care of them more than they now do and as much as the wife’s parents and family members would if she lives in the Hunter. She is likely to take advantage of whatever practical help is at hand. Importantly, I have formed a view of the wife which leads to the conclusion that her claim about support is a tactical one. The wife is not, in my assessment, a person who needs much emotional or practical support. Her parents and other family members seem to have not regarded closeness in distance to the wife as an important consideration when they left Sydney for the Hunter at a time when there was no plan by the wife to join them. The wife lived in Sydney for more than two years after her parents moved to the Hunter before the parties separated. I accept that because, for whatever reason is behind it, she wishes to move to the Hunter Valley, if she is not permitted to take the children to live there she will not relocate and will feel frustrated and stressed by her inability to get her own way. This will, to some extent, but not in my opinion to a significant extent, undermine her ability to care for her children. I do not regard the wife as one who is very emotional or whose emotions will, in any event, impede her in achieving her goals or undermine her effectiveness in any aspect of her life including her mothering capacity.
I find that a move to the Hunter Valley would not result in the wife encouraging contact between the children and the husband. It is much more likely to result in the opposite occurring. Her family will be available to baby sit so she will not need the husband and his parents. Such a move will undermine the significant part the husband already plays in the children’s everyday lives and reduce his and his parent’s time with the children to the children’s disadvantage. The travel involved in contact will reduce the quality of the time the children spend with both the husband and the wife because of its effect on all; parents and children. If there were to be a move, the wife would have to travel much more than otherwise because she would not only have to do so for contact purposes she would also have to travel to and from work in Sydney.
The wife has put some emphasis on the children’s sporting, recreational and social activities. This is why she claims to have enrolled them in ballet and swimming lessons and makes assertions about the availability of these and other rural and communal activities in the Hunter Valley. One must question whether the children really will have better access to suitable activities if they live in the Hunter Valley area. I do not accept they will. After all, many weekends and much of the school holidays will be spent with the husband in Sydney, thereby making organised weekend activities haphazard at best and also making time spent on them and with church, school and other local friends far less frequent than it is likely to be, even if the children live in a suburb in Sydney which is not close to the husband’s home.
A careful weighing of all the matters discussed above, in the knowledge that there are no other matters which that have been raised which could be regarded as significant, leads to the clear conclusion that the children’s best interests demand that they not be permitted to be taken out of Sydney to live and the wife’s wishes and needs are such that, giving these as much force as the circumstances allow, they cannot tip the balance in favour of the move she seeks for them. An order restraining her from taking them to live outside a certain area of Sydney should be made. My major reason for reaching this conclusion is my strong conviction, created by the wealth of evidence in its support, that the wife will use such a move to undermine the excellent relationship the husband and his parents have with the children because her conscience will not inhibit such manipulation.
The exact limit of the restriction on place of living requires consideration. There is no reason why the wife should not be able to have as much freedom of choice of a place of residence as is consistent with avoidance of making face-to-face contact a trial. An area which will provide her and the children with a good compromise between affordability and desirability while not being so far from the area where the husband lives or reasonably could wish to live is conveniently available. In an area of 30km radius of the Sydney GPO there are many areas where the wife will be able to obtain housing which she can afford. I do not accept the wife’s claim that she must live in a house with a suitable yard because she has dogs. The children are more important than dogs. If they have to be sacrificed to maintain the quality of the relationship between the children and the husband this is not much of a price to pay.
The wife says she is likely to obtain about $200,000.00 from any property settlement. She is likely to get a higher proportion than otherwise if she has to live in Sydney, so the issue of affordability of Sydney over the Hunter Valley is not as clear as she claims. I regard it as appropriate to limit the children’s residence with the wife to within a 30km radius of the GPO. This limit will mean that, generally speaking, there will be only minimal limits on where the parties might live in respect of one another within Sydney, including the northern outskirts, and that the children will not be too overborne by travel for the purpose of contact.
As a result of the restraint to be imposed, the children will be able to see the father frequently. With children of their ages, it is highly desirable that they see him every few days and are able to speak to him by telephone often. They are well enough attached to him to be able to spend considerable blocks of holiday time in his care. Even if he must work during some of those times, they will be able to be cared for by the paternal grandparents while he and Ms O are at work, or even overnight at times. Ms O will probably also be able to care for them at times when the husband must work. This is appropriate because it will provide the children with the sense of normality which children in separated families need. Such arrangements are normal in the circumstances. The opportunity for them to spend the weekends and holidays with the wife and visit their maternal grandparents and other Newcastle and Hunter area relatives if their welfare is to be optimally promoted should also be maintained.
The regime which will best meet the children’s needs will be for them to spend alternate weekends and each Wednesday during school term with the father. The weekend contact should commence after school on Friday and end at 6pm on Sunday or Monday on long weekends. On Wednesday, they should be collected after school by the husband and return to the wife’s home at 7pm. The children should share all school holidays equally with the parties. They are old enough and close enough to him to be able to spend half of each with the husband. There should be alternation between the first and second halves so that the children gain the most opportunities to experience the various incidents involved in such periods with each parent. Christmas, in particular, should be provided for. It is best, in my assessment, that the children should spend Christmas Eve and Christmas Day with the parent with whom they are spending the first half of the Christmas Holidays because of the anticipation and excitement which will build in them while taking part in that parent’s preparations and arrangements for Christmas. Boxing Day and the evening preceding it should be spent with the other parent.
It is also appropriate for the children to spend significant days with the appropriate parent. Thus, Fathers Day, Mothers Day and the parties’ birthdays are days for which special arrangements should be made, but not the children’s birthdays. The latter are too difficult to make long term provision for which is likely to work satisfactorily. How can a child’s birthday which occurs on a school day be shared between parents, who cannot make collaborative arrangements, don’t speak to on another and cannot accept that they need to celebrate together on that day, because of the few hours available? Even when birthdays fall on non-school days, a child cannot be expected to be able to cope with ending a first celebration early and exercising the restraint while at it needed to be able to enjoy a second celebration. The parties may be able to make workable complementary arrangements, I cannot.
It is in the children’s interests that their birthday celebrations should be subject to the uncertainties of the calendar and the general arrangements for contact if the parties are unable to agree to arrangements. If the parties wish to have the certainty of celebrating the children’s birthdays with them on their actual birthdays each year they will have to co-operate. If they do, this is likely to assist them to learn to co-operate in other matters affecting the children. It is in the children’s interests that they learn to co-operate. Self-interest seems likely to be, for the parties, especially the wife, the best method of learning to overcome the self-imposed impediments to reaching the level of co-operation and, therefore, flexibility which is necessary for the children’s optimal future prospects. It is far from the current situation.
Telephone contact has been a problem between the parties. The husband complains that the wife evades it and restricts it unduly whereas the wife claims the husband imposes a burden on her and the children with it because his timing and the frequency of his calls interfere with the children’s routine and other activities and the children, understandably, resist it. Yet each seeks virtually unlimited telephone and alternative electronic contact when it is initiated by the children.
I regard it as necessary to put some limits on telephone contact. The children should not be raised to feel a need to contact a party each day when with the other party, but should not be prevented from speaking to a parent when they wish. I think that, during each weekend when the children are in one party’s care, the other party should be able to speak by telephone to the children once, subject to agreement for 5 to 10 minutes each. 6.00pm Sunday is appropriate for contact with the husband and 6.00pm Saturday is appropriate for contact with the wife. During a normal school week, once is sufficient for the husband to speak to the children. It can be at any time by agreement, but if there is none, it should be at about 6pm on Thursday for 5 to 10 minutes per child. During school holidays, I think it is not too disruptive and is appropriate to permit telephone contact on every second day unless the parties agree otherwise. The children should be able to have some other electronic contact with the parent who is not caring for them, but I shall not prescribe this. The parties will have to learn to co-operate if they wish the children to have this advantage which will also comfort the absent parent. Morning telephone contact on each child’s birthday should occur. As there are some allegations, especially by the husband against the wife that she interferes with telephone contact, I should restrain such interference. I also am concerned that the children should be free to speak without reservations to their parents, so I shall prohibit listening-in.
Transport, for the purpose of face-to-face contact involves an aspect which I regard as important. It is the undesirability of exposing the children to the parties’ intent to have as little to do with one another, especially face-to-face, as possible. This is not a case where the parties are so volatile and lacking in self- discipline that an ugly scene which stresses and upsets the children is likely to occur during contact exchanges in the parties’ presence. There have been relatively few so far. What the children should, for their welfare, see is exchanges which are as normal and unremarkable as possible. They should not be forced to grow up rarely having seen their parents together in normal circumstances. It is in their best interests, therefore, that collections and returns which do not take place at school be at the front door of one or other of the parties’ homes. As the wife will bear most of the burden of caring for the children, I regard it as proper and fair, and therefore less likely to cause further animosity between the parties, if the husband is responsible for transport which does not start at school. The party who the children are with or to be with at the time should be responsible for taking them to or collecting them from school.
The orders which were made on 24 December 2008 were intended to reflect the above which are my reasons for them. There are however two errors in them. One is in the name of the younger child. In paragraph 8. of the Orders made on 24 December 2008, I intended to provide for telephone contact on Saturday, not Sunday. I shall amend the orders pursuant to the slip rule, substituting “Saturday” for “Sunday” in that paragraph and correcting the surname of the child. I regard these orders as likely to advance the children’s welfare as much as court imposed orders are able. Of course, if the parties can communicate, co-operate and compromise and show respect for one another to the extent that they can, by mutual agreement, make arrangements which allow them to ignore the Court’s orders, the children will be much better off.
I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen
Associate:
Date: 12 January 2009
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