Cardenas and Crabbe
[2008] FMCAfam 1521
•3 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARDENAS & CRABBE | [2008] FMCAfam 1521 |
| FAMILY LAW – Parenting – is this a ‘relocation’ case – consideration of ‘guidelines’ regarding legal representative’s communication with report writer – commentary as to appropriate circumstances. |
| Family Law Act 1975 (Cth) ss.60CA, 61DA, 69ZT, 65DAA, 60B, 60CC (2) & (3) |
| Mazorski & Albright [2007] FamCA 520 |
| Applicant: | MS CARDENAS |
| Respondent: | MR CRABBE |
| File Number: | TVC 29 of 2008 |
| Judgment of: | FM Coker |
| Hearing dates: | 30 September; 1 & 2 October 2008 |
| Date of Last Submission: | 2 October 2008 |
| Delivered at: | Townsville |
| Delivered on: | 3 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pack SC |
| Solicitors for the Applicant: | Dempseys Lawyers |
| Counsel for the Respondent: | Mr Fellows |
| Solicitors for the Respondent: | Boulton Cleary & Kern |
ORDERS
The Father and the Mother have equal shared parental responsibility for the major long term issues of the children [X] born in 2002 and [Y] born in 2003 including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision
The children live in Townsville until December 2008 and then relocate to [O], Queensland.
Whilst the children live in Townsville and in [O], and so long as both the Father and the Mother reside in the same township as the children:
(a)The children live with the Father and the Mother on an equal shared care, one week on/one week of basis, with this arrangement to continue throughout the whole of the year including during all school holiday periods except for the Christmas holidays.
(b)The children spend one half of each Christmas school holiday period (first half and second half alternatively) with either parent. The Father to have the first half of the Christmas school holiday period (commencing at the conclusion of the last day of school) in 2008 and in every even numbered year thereafter and the Mother to have the second half of the Christmas school holiday period in 2008 and in every even numbered year thereafter and the Father to have the second half of the Christmas school holiday period in 2009 and in every odd numbered year thereafter and the Mother to have the first half of the Christmas school holiday period (commencing at the conclusion of the last day of school) in 2009 and in every odd numbered thereafter.
(c)The children spend time with the parent that they are not otherwise with pursuant to the above paragraphs as follows:
(i)Provided both parents and the children are in the same location on Christmas Day, the parent with whom the children are not living on Christmas Eve and Christmas morning spend time with the children for a period of not less than 6 hours on Christmas Day at times agreed between the parents and failing agreement from 3:00pm to 9:00pm.
(ii)The Father spend time with the children from 9:00am to 6:30pm on Father’s Day.
(iii)The Mother spend time with the children from 9:00am to 6:30pm on Mother’s Day.
(iv)
The parent who does not have the children with him or her on any of the children’s birthdays, spend not less than
3 hours with both children on each of the children’s birthdays at times agreed between the parents and failing agreement for 3 hours from 4:00pm to 7:00pm.
(v)Should the children then be with the Father, the Mother spend not less than 3 hours with both children on the Mother’s birthday at times agreed between the parties and failing agreement for 3 hours from 4:00pm to 7:00pm.
(ii)Should the children then be with the Mother, the Father spend not less than 3 hours with both children on the Father’s birthday at times agreed between the parties and failing agreement for 3 hours from 4:00pm to 7:00pm.
(d)Each parent have reasonable regular telephone communication or communication via text message or email or letter while the children are with the other parent, with each parent to actively facilitate and encourage the children to speak to or otherwise communicate with the other parent.
(e)Each parent advise the other of any change of address and/or telephone number within 48 hours of any such change.
Should the Mother not relocate to [O] with the children, the children live with the Father and spend time with the Mother as follows:
(a)For the whole of the Easter; June/July and September/October holidays in each year, with the travelling costs to be borne by the Mother;
(b)For one half of each of the Christmas school holiday period. The Father to have the first half of the Christmas school holiday period (commencing at the conclusion of the last day of school) in 2008 and in every even numbered year thereafter and the Mother to have the second half of the Christmas school holiday period in 2008 and in every even numbered year thereafter and the Father to have the second half of the Christmas school holiday period in 2009 and in every odd numbered year thereafter and the Mother to have the first half of the Christmas school holiday period (commencing at the conclusion of the last day of school) in 2009 and in every odd numbered year thereafter.
(c)The Mother have regular telephone communication or communication via text message or email or letter with the children and the Father actively facilitate and encourage the children to speak to or otherwise communicate with the Mother.
The Father and the Mother be restrained and an injunction issue restraining them from discussing these proceedings with either of the children or from denigrating the other parent or their partners to or in the presence or hearing of the children and both parents use their best endeavours to ensure that no other person denigrates the Mother or the Father or their respective partners to or in the presence of the children.
The Father and Mother be ordered to attend a Post Separation Parenting Course such as the Parenting Orders Program (POP) provided by Relationships Australia, Queensland or any other joint counselling program.
The children or either of them attend upon a specialist child counsellor or child psychologist for assessment and counselling as agreed between the Father and the Mother and failing agreement as determined by the Father, such costs, if any, to be shared by the parties.
IT IS NOTED that publication of this judgment under the pseudonym Cardenas & Crabbe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 29 of 2008
| MS CARDENAS |
Applicant
And
| MR CRABBE |
Respondent
REASONS FOR JUDGMENT
I have a few preliminary comments that I wish to make in relation to this matter before going in depth into the reasons that I intend to put with regard to the proceeding. As is obvious from the last three days, this application relates to an issue with regard to the parenting of the two children, [X] born in 2002 and therefore just recently turned six years of age and [Y] born in 2003 and therefore approaching five years of age.
They are the children of Ms Cardenas, whom I shall refer to as the mother and Mr Crabbe, whom I shall refer to as the father. They are also unfortunately the subject of a hotly contested and it would seem generally unresolvable issue in relation to their future parenting. I heard significant argument in relation to this matter with regard to whether in fact it is a relocation case. In my view, this is not a relocation case. It is specifically and only a case of a determination of where these children are to live and with whom they are to live.
It is very different to the normal situation that is commonly referred to as a relocation case where both parties are in one locality, and one or the other seeks to move to a different locality, whilst the other is to remain in place. It may have been some months ago that this was what might commonly be referred to as a relocation case but it is not any more. The reason for that is that the circumstances have changed and both, the mother and the father, now propose that they should reside in some place, other than Townsville.
Until perhaps six months ago, it was generally the case that the father was intending to remain in Townsville and a little less than 12 months ago, it was the case that both parents intended to remain in Townsville. The real issue, or at least one of the real issues therefore in relation to this matter is what has changed the situation, why have the goal posts moved, who or why is that significant in relation to the matter?
I will comment a little further in respect of that during the reasons that I give. The real issue, of course, as I have said is the parenting and the arrangements to be made in respect to the best interests of these children. Obviously I am required to follow what might be called the legislative path that is set out in provisions of the Family Law Act. What when all is considered then, is in the best interests of the children. Section 60CA of the Family Law Act is the starting point, in relation to all such matters.
It is only a few lines long, and provides simply that the paramount consideration is the welfare or the best interests of the children. And a number of Brazilian rainforests have been destroyed in attempts to determine what in fact is the best interests of the children. The law sets out various considerations in the legislative pathway that I must follow in relation to the matter. But there are obviously in each case, the individual fact circumstances that arise which are necessarily required to be applied in relation to determining what, in the end, is in the best interests of the children.
I should also comment that whilst this matter went for three days and there was a considerable amount of evidence, it's not in my view a complex case. I do not for a moment, suggest to the parties that it is not the most important thing in theirs and their children's lives but it is a similar situation to those circumstances that come before the Court, on almost a daily basis.
There is certainly a very considerable amount of evidence and there is very much in dispute but that is not uncommon in itself. It is just that the volume of material and depth of each parties distrust of each other is so encompassing, in relation to this matter, that it became far more difficult to determine or at least the issues that arose were so multitudinous that they muddied the real concern, which of course, continues to be, what arrangements are best for these children.
This is really a case, as are most, in relation to parenting arrangements which arise from poor communication between the parties, and that is obvious in the difficulties or differences in relation to the goals, hopes and aspirations the parties have both, for themselves personally, and for the children, and a question of respect. It is evidenced by attitudes and approaches that each have to the other and of course to the children.
I turn now to the issue of the applications and the orders that have previously been made and of course where the matter is to proceed from here.
The proceedings were commenced by an application seeking only final orders by the mother on 11 January 2008. Shortly thereafter, she filed an application in a case on 6 February 2008, which sought, virtually identical orders to those which were sought on a final basis, but on an interim basis. The mother wished to take steps to relocate or to position herself in Perth.
An interim application was heard on 18 February 2008 and at that time orders were made, which in general terms provided for equal shared parental responsibility and unless otherwise agreed between the mother and the father, for the children to live with the mother and the father on an equally shared care, week on week off basis. Within two days, the goal posts in relation to this matter had moved, because the clear indication that was given by the mother was that she would be remaining in Townsville and yet, that was not to be the case.
As I say, two days later on 20 February 2008 her solicitors corresponded with the solicitors for the father indicating that she intended to move and that alternate arrangements would need to be made. It was suggested that she did that with great regret, and I have absolutely no doubt that that was the case. But the greater consideration and the one that must be looked at in relation to this matter is, the effects that such decision, made by the mother, had upon the whole of the circumstances in relation to this matter. It is an issue of responsibility and it looms large in relation to the determination of this matter. It would be a nonsense to suggest otherwise.
I will obviously be commenting upon that particular decision and of course, decisions also made by the father in relation to these proceedings, which troubled me. The next order that was made only a matter of two months before the proceedings were to go to a final hearing related to further dispute between the parents in relation to arrangements, with regard to the parenting of these children.
The orders of 18 February 2008 clearly provided that there should be equal shared parental responsibility, and unless otherwise agreed between the mother and father, the children were to live with the mother and the father on an equally shared care, week on/week off basis. The mother departed Townsville on the 27 February 2008. She returned to Townsville as best I can assess from the evidence, on or about 6 or 7 June 2008.
The mother sought the re-introduction or the establishment of the arrangements that were in place pursuant to the orders of the
18 February 2008. The father would not agree. He would not agree he says, "for valid and appropriate reasons". But the real issue, of course, was the children were not spending as much time with the mother as the mother sought and said that she was entitled to, pursuant to the orders. As a result of that a further application in a case was filed in relation to the proceedings on 1 July 2008 and that matter came before the Court on the 4 August 2008.
On that day, orders were made which varied the operation of the orders of the 18 February 2008 and put in place arrangements which provided for the children to spend four days with the mother in one week and two days with the mother in the alternate week, but allowed each parent to have a weekend with the children in each 14 day rotation. It was not therefore, seven and seven, but rather eight and six days, in the households of the father and the mother respectively. That continued until this particular application was for final determination.
The parties' positions are not to any real extent varied over the positions that existed, at least in August 2008. However, for clarification, each party filed further orders in relation to the matter to detail specifically what they were seeking in relation to the proceedings. The mother's case outline, which was provided to the Court, detailed specifically the orders that she sought. The case outline in fact repeated the orders that were set out in the mother's amended application filed on the 5 September 2008.
1. That the children [X] and [Y] live with the mother MS CARDENAS (the mother).
2. That MR CRABBE (the father) and the mother have shared parental responsibility for the long term care, welfare and development of the children.
3. That without limiting the parental responsibility of each parent pursuant to paragraph 2 of this order, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any signif8icant parenting issues affecting the children. For the purposes of these orders, a “significant parenting issue” is:
i. Any medical or health matter concerning the children.
ii. Any medical or health matter affecting either parent which may affect the ability of the parent to care for the children.
iii. Matters relating to the education of the children including, but not limited to, the choice of school curriculum and the provision to the other parent of all school reports, school photographs and all communications from the children’s school other than with respect to routine or administrative matters. In relation to the children’s school neither the mother nor the father change the children’s school without having obtained the other parent’s prior written agreement or order of the Court.
iv. Disciplinary matters other than that of a trivial nature.
v. Matters concerning the social development and sporting activities of the children.
vi. Matters concerning the religion or faith of the children.
vii. Generally, any matter regarding the children in respect of which a parent should be informed of or consulted about, having regard to the provisions of the Family Law Act 1975.
4. That the mother and father have sole responsibility for the day to day care, welfare and development of the children during such time as the children are in the respective care of the mother and father.
IN THE EVENT THAT THE CHILDREN RESIDE IN PERTH AND THE FATHER RESIDES IN [O]
5. The children shall spend time with the father at all such times as are agreed between the parties an din particular;
a. For the whole of the end of Western Australian school term holidays, subject to 5(b);
b. One half of the Western Australian Christmas holidays with the father to have the first half in 2008 and the second half in 2009 and continuing;
c. That the father communicate with the children at his election by telephone, email or webcam between the hours of 6.00pm and 8.00pm each Tuesday, Thursday, Saturday and Sunday, or at such other times as agreed between the parties.
IN THE EVENT THAT BOTH THE MOTHER AND THE FATHER LIVE IN [O]
6. The children shall reside with the mother and the father for equal time on a week about changeover.
7. The mother and the father shall spend time with the children for one half of all school holiday periods (unless otherwise agreed between the parties) with the mother to have the first half in 2009 and the second half in 2010 and with the father to have the second half in 2009 and the first half in 2010.
IN THE EVENT THAT THE MOTHER’S APPLICATION TO RELOCATE IS UNSUCCESSFUL
8. The children shall reside with the mother and the father for equal time on a week about changeover.
9. The mother and the father shall spend time with the children for one half of all school holiday periods (unless otherwise agreed between the parties) with the mother to have the first half in 2009 and the second half in 2010 and with the father to have the second half in 2009 and the first half in 2010.
10. Such further or other Orders as this Court deems meet.
The father then filed an amended response on 16 September 2008 in which the amended orders sought by him were detailed.
1. That the mother’s Application for Relocation to Perth, be dismissed.
2. That should the mother’s Application for relocation to Perth be successful then the mother and the father have equal shared parental responsibility for the long term care, welfare and development of the children [X] born in 2002 and [Y], born in 2003.
3. That without limiting the parental responsibility of each parent pursuant to these orders, each parent keep the other informed of and properly consult with the other with respect to any significant parenting issues affecting either child, such issues to include:
a. Any medical or health matter concerning either child.
b. Any medical or health matter affecting either parent which may affect the ability of that parent to care for the children.
c. Matters relating to the children’s education, to include the provision to the other parent of copies of all reports, newsletters and documents relating to the education of either child which may be received by either parent in his/her relevant week with the child referred to in paragraph 1.
d. Disciplinary matters concerning the children.
4. That the parents consult with each other about decisions to be made in the exercise of their shared parental responsibility referred to in paragraph 2 as follows:
a. They shall inform the other parent about a decision to be made.
b. They shall consult with each other on terms that they agree; and
c. They shall make a genuine effort to come to a joint decision.
5. That the father spend time with the children for the whole of each of the Western Australian School holidays throughout the year except for the end of year Christmas holidays where the father is to spend (4) weeks with the children each year, with the father to have the first (4) weeks including Christmas Day in 2008 and the last (4) weeks excluding Christmas Day in 2009, with such arrangement to alternate from year to year.
6. That the mother and father share equally the travel costs with the father to pay for the children to travel by air from Perth to Brisbane at the commencement of each holiday period and the mother to pay for the travel costs by air for the children to return from Brisbane to Perth at the end of the agreed holiday period.
7. Should the mother’s Relocation Application to Perth be unsuccessful, the children live in Townsville until December 2008 and then relocate to [O], Queensland.
8. That whilst the children live in Townsville and in [O], and so long as both the father and the mother reside in the same township as the children:
(a) The children live with the father and the mother on an equal shared care, one week on/one week off basis, with this arrangement to continue throughout the whole of the year including during all school holiday periods except for the Christmas holidays.
(b) The children spend one half of each Christmas school holiday period (first half and second half alternatively) with each parent. The father to have the first half of the Christmas school holiday period (commencing at the conclusion of the last day of school) in 2008 and in every even numbered year thereafter and the mother to have the second half of the Christmas school holiday period in 2008 and in every even numbered year thereafter and the father to have the second half of the Christmas school holiday period in 2009 and in every odd numbered year thereafter and the mother to have the first half of the Christmas school holiday period (commencing at the conclusion of the last day of school) in 2009 and in every odd numbered year thereafter.
(c) The children spend time with the parent that they are not otherwise with pursuant to the above paragraphs as follows:
i. Provided both parents and the children are in the same location on Christmas Day, the parent with whom the children are not living on Christmas Eve and Christmas morning spend time with the children for a period of not less than 6 hours on Christmas Day at times agreed between the parents and failing agreement from 3.00pm to 9.00pm.
ii. The father spend time with the children from 9.00am to 6.30pm on Father’s Day.
iii. The mother spend time with the children from 9.00am to 6.30pm on Mother’s Day.
iv. The parent who does not have the children with him or her on any of the children’s birthdays, spend not less than 4 hours with both children on each of the children’s birthdays at times agreed between the parents and failing agreement for 3 hours from 4.00pm to 7.00pm.
v. Should the children then be with the father, the mother spend not less than 3 hours with both children on the mother’s birthday at times agreed between the parties and failing agreement for 3 hours from 4.00pm to 7.00pm.
vi. Should the children then be with the mother, the father spend not less than 3 hours with both children on the father’s birthday at times agreed between the parties and failing agreement for 3 hours from 4.00pm to 7.00pm.
(d) Each parent have reasonable regular telephone communication or communication via text message or email or letter while the children are with the other parent, with each parent to actively facilitate and encourage the children to speak to or otherwise communicate with the other parent.
(e) Each parent advise the other of any change of address and/or telephone number within 48 hours of any such change.
9. That should the mother not relocate to [O] with the children, the children live with the father and spend time with the mother as follows:
(a) For the whole of the Easter; June/July and September/October holidays in each year, with the travelling costs to be borne by the mother;
(b) For one half of each of the Christmas school holiday periods. The father to have the first half of the Christmas school holiday period (commencing at the conclusion of the last day of school) in 2008 and in every even numbered year thereafter and the mother to have the second half of the Christmas school holiday period in 2008 and in every even numbered year thereafter and the father to have the second half of the Christmas school holiday period in 2009 and in every odd numbered year thereafter and the mother to have the first half of the Christmas school holiday period (commencing at the conclusion of the last day of school) in 2009 and in every odd numbered year thereafter.
(c) The mother have regular telephone communication or communication via text message or email or letter with the children and the father actively facilitate and encourage the children to speak to or otherwise communicate with the mother.
10. That in the vent that the wife’s Application for Relocation to Perth is unsuccessful then paragraph 2 above regarding the long term care of the children is altered only in so far as it relates to the issue of residence and the father have the sole responsibility regarding where the children shall live. Consistent with his sole parental responsibility as to the residence of the children, the father make future decisions in that respect concerning the children, however:-
(a) The father will give the mother as much notice as possible of his plans and in any event not less than 3 months written notice of any proposed change of residence;
(b) The father will, consistent with his joint responsibility for other matters, ensure that there is appropriate consultation with the mother concerning those other matters such as the children’s schooling in the ‘relocation destination’;
(c) If the mother chooses to also relocate to the same destination then the provisions of paragraph 8 above will apply;
(d) If the mother chooses not to relocate to the same destination then the provisions of paragraph 9 above will apply.
11. That the father and the mother be restrained and an injunction issue restraining them from discussing these proceedings with either of the children or from denigrating the other parent or their partners to or in the presence or hearing of the children and both parents use their best endeavours to ensure that no other person denigrates the mother or the father or their respective partners to or in the presence of the children.
12. That the father and mother be ordered to attend a Post Separation Parenting Court such as the Parenting Orders Program (POP) provided by Relationships Australia, Queensland and any other joint counselling program, as determined by this Honourable Court.
13. That the children or either of them attend upon a specialist child counsellor or child Psychologist for assessment and counselling as agreed between the father and the mother and failing agreement as determined by the father, such costs, if any, to be shared by the parties.
14. Costs.
Quite simply the positions remained little changed. The mother proposed the children live with her, that there should be equal shared parental responsibility, and the mother set out various alternatives in relation to what arrangements should be put in place, dependant upon what orders should be made with regard to with whom the children should live.
There were proposals, if she were granted leave to live in Perth with the children, proposals if both the mother and the father were living in [O], where the father intends to live, and proposals in relation to the mother's application if in fact she were not successful in her application for relocation. She proposed that there should be equal time, which is, of course, what she also proposed in relation to [O].
My comment in relation to that, is that whilst I accept unconditionally, that if the parties were in the same locality, equal time in each household is the only appropriate arrangement and the father acknowledges that also. The proposal was still put by the mother that the children should reside, or as more appropriately using the words in the legislation, live with the mother and father for equal time on a week about changeover.
It fails to recognise, however, that if the parties are not both in the same locality and in particular, [O], that may be completely unfeasible. But in any event the mother's clear evidence is, that at least for the next three years, if she were unsuccessful in the application to relocate, she would be living with the children on a week about basis in [O] and therefore, in the same locality as the father.
The father's proposal was that the mother's application should be dismissed, at least in so far as any suggestion of her being able to relocate to Perth, with the children. The father does not contend that the mother should not be able to relocate, though the mother's position clearly is to say that that would not be the case. The father proposes that there should be equal shared parental responsibility, no matter what the circumstances might be and then sets out in the proposed orders, contained within the amended response, alternatives with regard to either the parties being in the same locality, he says [O], and in that event there should be arrangements for equal time, on a week about basis. He also details what should occur in relation to arrangements with regard to the time to be spent by the mother with the children if they are with him in [O] and she is not in the same locality.
He proposes that there should be significant opportunities for interaction and details in paragraph 9, how that might occur. The father says in paragraph 10 the following:
That in the event that the wife's Application for Relocation to Perth is unsuccessful then paragraph 2 above regarding the long term care of the children is altered only in so far as it relates to the issue of residence and the father have the sole responsibility regarding where the children shall live.
He then sets out, as I have indicated in these reasons, a number of criteria or points that must be addressed by the father in relation to the decision to be made. The distinction between paragraph 10 and paragraph 2 is significant. The father says that if the children are in Perth with the mother he should have understandably, equal responsibility in relation to decisions with regard to the long-term care, welfare and development of the children, including a decision as to where they might reside.
He says, however, that if the mother's position in relation to the matter is unsuccessful then there should be equal shared parental responsibility, except in relation to the issue of residence. During submissions I made a comment that I did not consider that to be an appropriate position in relation to the matter. I still do not. I will comment a little later in relation to that particular aspect of the matter when addressing issues that arise pursuant to the provisions of s.61DA of the Act.
The fact is, that the decision as to residence is one of the most significant decisions that can and should be made in relation to the parenting of the children, and to place that particular aspect of parental responsibility in the hands of one parent is in my view a recipe for disaster. It is a recipe for disaster for a number of reasons that I will touch upon.
Before addressing the law, it is important that I address issues in relation to the evidence that was called in respect of the matter. As is invariably the case in almost all proceedings that come before the Court, the principal evidence and the real drivers in relation to a determination of a matter, is the evidence of the parties themselves, but other witnesses have been called including an expert witness,
Ms Burnett, who has provided to the Court, a family report.
Three other witnesses gave affidavits in relation to this matter. Two of those witnesses, Ms B and Ms K were not required for the purposes of cross-examination. Both of those witnesses were called on behalf of the father. Ms B, understandably, was not required in relation to this matter as her evidence centred specifically on one paragraph of the mother's trial affidavit filed 4 September 2008.
Her evidence is, however, telling and it is significant, firstly because it is unchallenged but secondly, because it reflects in one very small way the issues of a lack of respect, a lack of trust and of poor communication that exists between the mother and the father. At paragraph 229 of her affidavit, the mother says:
On the 9/8/08 [MR CRABBE] was extremely insensitive to [Y] and upset him terribly. I had the children for the weekend and we were at the local Go-Cart track at [B]. [X] had gone to the toilet so [Y] and I were waiting outside when [MR CRABBE] arrived with a woman I know as [Ms B] and her young son. [MR CRABBE] quickly removed his arm from around [Ms B] upon seeing [Y] and I, and then proceeded to very quickly walk off in the other direction; totally ignoring [Y] and I. [Y] was very confused and upset that [MR CRABBE] did not say hello to him and also that [MR CRABBE] was with another little boy. For the first time ever I saw the dark cloud that [MR CRABBE] talks about with [Y] when he gets angry. I told [Y] to go and say hello to [MR CRABBE] and I would wait for [X]. [Y] very calmly said, "I don't want to. I hate my dad".
Ms B's evidence in relation to that matter was entirely different and she was unchallenged in relation to that evidence. She says in paragraphs 6, 7 and 8 the following:
6.My son, Mr Crabbe and I and another friend Mr J had decided to go to the Go-Cart track for a bit of fun. I firstly state that, at no time, did Mr Crabbe have his arm around me and neither were we otherwise romantically linked. This is simply a nonsense.
That evidence is unchallenged and I accept it.
7.It is my recollection that, as we were arriving, Mr Crabbe made a comment to me like “I think I might have just seen [Ms Cardenas] here”. I recall that I said, "Are you going to go over and say hello?" to which he replied "Yes, of course I wonder if the kids are here too". We then ran into our friend that we were meeting so this delayed things for a few minutes while we had a chat and said hello. Mr Crabbe then went off to see if he could find [Ms Cardenas] and the kids and he headed towards the refreshment/café area. When he returned, I recall him saying something like "Nup, it couldn't have been her, I think it was one of the café workers that I saw" or words to that effect.
8.At no point did Mr Crabbe say that he saw either of his children and I felt that Mr Crabbe was genuine in thinking that it was one of the staff that he had seen when he initially thought he had spotted Ms Cardenas upon our arrival at the Go-Cart track.
I accept that evidence. It is not necessarily corroborative of the mother's position or the father's position, but what it is indicative of, is the very poor level of communication and appalling level of trust as between the mother and the father, in relation to this matter. The mother's assumption was the worst. The mother's assumption was clearly to the affect that the father simply would ignore the child when every skerrick of evidence that is before the Court is that, that is not the father's way, nor is it the way the father would behave. I am far more inclined to believe the evidence, unchallenged of Ms B, in relation to this matter, insofar as the father's position, the father's inquiry and the father's attitude, in relation to the children.
As I say, the only real point that arises from that evidence is the appalling lack of respect and lack of appreciation, perhaps unfortunately by each parent, of the effects of their actions upon the other and of course, the almost immediate opportunity that is taken, unfortunately particularly by the mother, to think the worst of the father, in relation to such proceedings.
I turn very briefly to the affidavit of Ms K. Ms K's affidavit was before me, subject to a number of objections. I do not intend to make any specific comment in relation to those objections, other than to say that 95 or more per cent of all affidavits that come before the Court by supporters of one side or the other, are littered with statements as to opinion, belief, observation, hearsay and characterisation. It does not make them less helpful then they might normally be in relation to proceedings. It simply makes the statements more human and more able to generally be accepted.
I do not make any findings, whatsoever, in relation to the mother arising from the observations, for example, that are referred to by Ms K in her affidavit. Ms K indicated that she found the mother unapproachable. If you like, my comment in relation to that is, ‘so what?’ People like each other or they don’t like each other for a multitude of reasons. It does not make one or other a good person or a bad person. It certainly does not make one or other, a good parent or a bad parent. It simply reflects on the personal relations between one party or the other. I draw no inference, whatsoever in relation to the mother or her parenting from the statements made by Ms K.
Obviously, however, the observations in the statements that she makes in relation to the father are somewhat different. She obviously likes the father, and quite clearly it flows in relation to the statements that she makes with regard to the father and his parenting, his preparedness as a father in relation to any arrangements that need to be made with regard to the children, and of course, his capacity as a parent.
I accept her observations in relation to such issues simply because again, they are generally unchallenged, but seem only to be corroborative of exactly what I observed in relation to the father through both the oral evidence and the affidavit evidence but also of course what appears clearly to have been observed by others, and in particular, I note the comments made by Ms Burnett, in the report that is before the Court.
Ms K noted the father to be a competent parent and a parent comfortable in the obligations and responsibilities that arise, in relation to the parenting of the children. I accept that without hesitation. She also however, makes some significant comments in relation to the father's preparedness to take advice and seek assistance to ensure that he is the best parent that he could be.
In paragraph 20, she makes the following comments:
When [Mr Crabbe] was setting up his residence at [M], I recall having a conversation with him about art and craft items and strategies he could place in the children's home environment to help them increase their knowledge and development. Mr Crabbe and I discussed numerous ways in which one could help a child thrive and develop. One strategy was the use of positive language. For example, instead of saying “don't talk”, say "thanks for listening". Mr Crabbe also set up from an early point following separation a “positive rewards chart” for the children. The children were involved in setting it up by choosing the chores and the rewards. The children were excited about it and were proud to show the chart to me whenever I visited them. It was a clearly beneficial visual tool that Mr Crabbe effectively used to promote a positive and happy home for [X] and [Y].
Ms K is a [education industry professional] by occupation. I accept that there is at least to some degree, expertise on her part in relation to developing and putting into practise strategies with regard to the parenting of children and certainly, in respect to issues with regard to control, discipline and behavioural management. The father inquired about these issues from the mother and it is to the father's credit, as is obvious from so much of the evidence in relation to this matter and in particular the observations and statements made to Ms Burnett, that the father realised that there were areas in which he could improve as a parent and as a person and he had taken appropriate steps to consult with experts, in relation to further improving and developing his expertise.
Whilst as I say, there was little in fact that I thought could be gathered from the statements by Ms K in relation to the mother, I was assisted in relation to such issues with regard to the father and his attempts to improve his role as a parent and as a person.
I also had the opportunity to consider the affidavit of Mr P. Mr P is the partner of the mother in relation to this matter and Mr P was also required in relation to cross-examination. I should note that I found
Mr P a most honest and impressive witness. He struck me as a very down to earth gentleman. He clearly has very great skills referring both to his current work in the mining industry but also his previous skills gathered through the [omitted] Army in relation to the maintenance and steps necessary to ensure that various helicopters used by the army are able to fly and are reliable.
He clearly has very great skills and as I understand it, has real possibilities of gaining Australian equivalent qualifications in that particular area. I was impressed by Mr P's affidavit and he was certainly not challenged in respect of his observations of the mother's capacity in relation to care and provision for the children. I accept, without hesitation that those observations are accurate and that the mother, like the father, is able in every respect, to provide for the needs of the children.
Mr P was also unchallenged in relation to the comments that he made about his relationship with [X] and [Y]. He says in paragraph 10 the following:
I love [Y] and [X] very much and think of them as my own son and daughter. That being said however, I have no intention of ever trying to ‘replace’ their father [MR CRABBE] (“MR CRABBE”) and believe it is incredibly important that the children maintain a strong, meaningful relationship with [MR CRABBE].
I accept that as an obvious and genuine statement by Mr P, of his role in relation to the support of the mother and her relationship with the children and a very clear indication of his appreciation of the different role that he would take, in relation to the children, as opposed to that of the father. Mr P was cross-examined in relation to one of the seminal points in relation to this matter, which was the mother's change of position from that which was set out in the parenting plan of 28 November 2007, to her apparent acceptance of the position offered to her on 12 December 2007, literally two weeks later.
Mr P was overseas at the time working on a contract in Hawaii, but he did indicate that he was in communication with the mother and was asked whether he was involved in the decision that was taken between, it would appear the 12 and 17 December 2007 by the mother, to arrange to take the posting in another place. He indicated that he was not in Australia and whilst that was not pressed, I gained the distinct impression that he was perhaps more advised by the mother of her determination or intention to take the position, rather than to have been critically involved in the decision making process.
Interestingly however, he commented that he thought it was the most stable thing that could be done. He then went on to comment that none of us, meaning the mother, the father or he had a stable job. Both, the mother and the father had placed their discharges before the army and Mr P himself, had been taking contract work which involved him being at various places at various times. He indicated therefore, that he thought this was a good decision by the mother, because, as he put it, "She'd be able to provide that stability if she took the job".
I acknowledge that that is perhaps one way of considering the position in relation to the matter but of course, it failed to in any way appreciate the catastrophic affect upon the children, of a very significant change, there having only been agreement, a matter of days before as to an entirely different arrangement being put in place. It may have provided stability, but it also provided exactly what the mother sought, in relation to arrangements with regard to her career.
As I say, I was impressed by Mr P. I thought him, an honest witness and an open witness. I accept without hesitation his positive comments in relation to the mother's parenting capacity and, of course, also his understanding of his role as a step parent in relation to the life of [X] and [Y]. But I must say, I was also somewhat disappointed that the position taken, perhaps understandably, by Mr P was one of unrestricted support of the mother, rather than perhaps the consideration of the greater issues in respect of these proceedings, which are the welfare and the best interests of the children.
I turn now in particular to the evidence of Ms Burnett. Her report in relation to this matter was, I thought, most helpful. It was interesting that there were some concerns raised in relation to whether the report was a great assistance to me in relation to the matter because of the fact that, firstly, I had the opportunity to hear all of the evidence in relation to the matter, and had had the opportunity of considering the lengthy trial affidavits that had been filed by each of the parties and I, of course, had also had the opportunity of considering developments over the last four or five months, in relation to the matter.
With respect to that, it is exactly the same as arises in every single case that comes before this Court. The report writer prepares a report at a time and a place that interviews are conducted. They are obviously not aware of changes in circumstances and it is not uncommon therefore, for them to be advised of changes of circumstances and in particular asked whether the new evidence or the further developments in any way affect their recommendations, in relation to any particular report. Ms Burnett, when asked about that, accepted that that was the case but she made a comment that I thought was rather telling in relation to that particular aspect of the matter. At the conclusion of cross-examination by Mrs Pack, she was asked whether she would have to accept that the Court is in the best position to make findings.
She acknowledged that the Court has much more information than she had, at hand, when the report was prepared but she went on to say, she would think or hope that she would excel in understanding the relationships that exist. That is hers, as it is most, if not all report writers', area of expertise and excellence. Her comments in relation to that are obvious and if you like, they lead into the assistance that reports provide to the Courts, in relation to determination of matters. The assessments that are made by report writers are based on their area of expertise.
They are not required, nor in fact would it be appropriate for them, to make lengthy examinations of the evidence and to make findings in relation to truth or lack of truth. Their expertise is in the psychological field, or the social working field and their expertise and their excellence is in understanding the relationships that exist. If you like, it is not uncommon for there to be a basis upon which a Court would use the assessments that are put before it by the report writers as an indication of what the past has been and what the future might hold.
It is not uncommon, for example, for there to be that old adage recurring that “the past is the best indicator of the future”. Insofar as Ms Burnett's evidence is concerned there were a number of areas that were of particular assistance to me. Some of the matters, however, were also somewhat troubling to me. Counsel for the mother cross-examined Ms Burnett at some length in relation to the proceedings. At the beginning of the cross-examination there was an inquiry as to communications between the reporter Ms Burnett and the legal representatives for the parties, and in particular the legal representatives for the father.
She was asked whether communications were at anything more than, if you like, a general area and in fact acknowledged that the normal communications that might be had between the solicitor for one party or the other and the reporter is more likely to update contact details, changes of telephone numbers or address but that otherwise it is somewhat unusual for there to be a lengthy discussion in relation to issues. I took the opportunity of considering the guidelines to assessment and reporting which are noted on the intranet with regard to the reports prepared for the assistance of both this Court and the Family Court.
Under the heading "conceptualising and formulating the task" the following comment is made:
The reporter must beware of over speculation and making assumptions about the matter. Further there is need to guard against preconceived ideas and over involvement with the legal material. It is for this reason that some reporters do not read the file until after the initial interviews. It is essential the reporter remain open and receptive to the client's perceptions and the issues that are important to the clients.
It goes on:
In some cases contact with solicitors can be useful in elucidating the issues, provided that the family consultant retains control of the process and remains independent of the solicitors necessarily partisan approach.
In my view, Ms Burnett has done exactly that. She indicated in her discussions with Mr L that occurred, apparently, on or about the
16 April 2008that she would be agreeable to speaking with him but only on the basis that she would retain notes of that discussion, and she did, and that it would then be a matter upon which she could draw her own conclusions. I make no criticism of Ms Burnett in relation to that particular aspect of the matter. But I must say, that at least in the first instance, I was a little troubled that there should be communication by the legal representatives for one party or the other, other than of a very general nature.
Ms Burnett's notes indicated that she had spoken with the solicitors for the father about a number of matters and in particular the solicitor for the father had indicated, at least at one stage, that the mother had had a difficult past and also that the allegations of domestic violence by the father towards the mother were absolute nonsense. Ms Burnett indicated that the information that was available to her contained within the affidavits and communications that were available gave rise to all of those issues.
I accept that that is the case but I must say that from my own perspective I consider it somewhat inappropriate for an approach to be made by a solicitor to a reporter, firstly, before the interviews had occurred and secondly, without, as it is apparently the case here, there having been notification given to the legal representatives for the other side of such a step being taken. As the guidelines to assessment and reporting set out, it is not necessarily inappropriate for there to be communications between the reporter and the family consultant but it would seem to me that it should be, in this particular instance, perhaps a one-way street.
At the very least, there should be knowledge by both sides of the steps being taken by one side or the other to provide information either orally or by documentation because there is, as perhaps at least peripherally arose in relation to this matter, a suggestion that a preconceived view or idea had arisen and which might then lead to concern by one party or the other as to the legitimacy of the report. I hasten to add, that I make no such findings in relation to this matter and my comments are simply, if you like, obiter as to what I would consider is an issue that should be looked at by all legal representatives in relation to a matter.
In particular, of course, though it is not the case here, there is a concern that would arise, for example, if one party were legally represented and the other were not, if there were communication between the legal representatives for the party represented and it was not known to the other party until, for example, a time that the report issued. Otherwise, as I say, I was most impressed with the report that was prepared by Ms Burnett in relation to this matter.
She addressed so many of the issues that were obvious both as arising from the evidence given by way of affidavit but also, clearly, from the oral evidence of the parties. She speaks in paragraph 18 of the problems that existed with regard to communication. She reports the father as saying the following:
Now-a-days communication was "off and on" and "very rarely amicable" he said, adding that his ex-partner “hangs up on me”.
That is an obvious reflection of exactly what has been occurring in relation to this matter. She comments about the confusion that occurred with the children but also which occurred for the father at the time of the mother's departure in the latter part of February 2008.
At paragraph 20 she says the following:
Mr Crabbe thought that the children felt “confused”, yet their main need was “stability and know that they’re loved”. He alleged that Ms Cardenas had not prepared the children for her relocation to Perth, "left me with the school fees" despite inferring that she had paid them and took their school uniforms with her. He had plans to enrol the children in extra curricular activities but did not want to “start something that they can't finish”, should they relocate with their mother.
She goes on:
Mr Crabbe had tried to discuss [Y]'s silence and withdrawn behaviour with his former partner but stated, "as soon as she feels guilt it's me manipulating her".
Again, I gain the distinct impression that that is a most accurate assessment of the father's frustrations in his communication and exchanges with the mother. She speaks of the issues also of the father's parenting and of the father's commitment to co-parenting. In paragraph 22 she reports the following:
Mr Crabbe recognised the importance of differentiating between the children's “bad and really sad” behaviour. He described his parenting style as setting clear boundaries and expectations. Discipline included the removal of privileges and/or toys, quiet time although he had previously threatened to use a “wooden spoon if [X] or [Y] (was) aggressive and hits”. He observed that there was “heaps of bad behaviour after [Ms Cardenas] went to Perth” and “ferocious tantrums” and commented that Ms Cardenas “said they're fine with me. They were the best-behaved kids with me”.
I accept that the father has and had some difficulties with regard to the parenting of the children, particularly after the mother's departure to Perth. It would be inconceivable, that that would not be the case if these two young children were not confused and disoriented at the actions of the mother. The father was certainly, and it would be impossible to accept that they also were not affected by the actions of the mother in relation to this matter.
Ms Burnett speaks of issues with regard to the father's commitment to co-parenting, as I said, and in paragraph 24 reports as follows:
Again Mr Crabbe expressed the desire to be able to talk with his ex partner about the children. He provided examples of swimming lessons, “teacher nights”, and [X]'s first day at school in which communication was either done by Ms Cardenas solicitor, email or avoided. He stated “Her problem is with me and it’s the kids who are suffering or missing out.
- that's perceptive in the extreme.
The difficulties that are being experienced between the mother and the father and, of course, that is a two-way street is a shame in itself. The tragedy, of course, is the affect that it has upon these children. The lack of communication between the parents in relation to decisions that they make that critically affect the children is an issue that both parents need urgently to address.
Ms Burnett also spoke about the mother in various manners and, of course, spoke about her positive role in relation to parenting. She also, however, commented upon the mother's statement that she had been "set up" by the legal representatives for the father. In paragraph 35 she reports as following:
Ms Cardenas said that she was "set up" by the father's counsel,
Mr Fellows, during the Court proceedings held on 18 February 2008. Admitting that she had answered “untruthfully” to the barrister's question about remaining in Townsville she stated "I couldn't conceive that I wouldn't be allowed to take” the children to Perth.The mother's position in relation to that was to say that she had not said that she was set up by the barrister but rather that she had been set up, if you like, by the situation and then subsequently was asked who the father's barrister was and was advised that it was Mr Fellows. Ms Burnett's notes were quite definitely different to that. She indicated when cross-examined in respect of the point that the mother was specific that she had mentioned the father's barrister and that she had a note to the effect that she was set up due to questions asked by the barrister for the father and that I answered untruthfully.
I felt I had been tricked. Just a set up; felt used.
It may be a situation of perception of the mother in relation to what she said and of Ms Burnett in what was said to her but it appears very clear that the mother's position in relation to this matter, no matter how it came about, was that she was not responsible for her untruthful answers given to the Court in relation to the proceedings.
The fact is, of course, she was responsible. No one else could give the answers. No one else could make the decision as to what she would or would not do in relation to this matter. And at least on that occasion the mother was untruthful in relation to what she says.
Ms Burnett in relation to challenges raised with respect to the report was also asked about the provisions of paragraph 36 of her report. In paragraph 36 Ms Burnett says the following:
Ms Cardenas thought that "apart from the actual (physical) move" and the children settling into a new school, relocation to Perth "would have been as disruptive as what's happening now".
In fact the mother says that that is not an accurate reflection of what she says and in fact the notes from Ms Burnett are corroborative of that. Ms Burnett when asked whether the mother had said it would or would not have been as disruptive as what's happening now, reflected that her note said "when asked about the physical affect upon the children", the mother said, "I don't think it would have been as disruptive as what's happening now".
The removal of the words "don't think it" are critical in relation to the matter because they change the whole aspect of the matter. I accept that the mother's recollection in relation to exactly what was said was correct. But if anything, of course, I am more satisfied in reliance upon the report of Ms Burnett in relation to the matter because, of course, Ms Burnett's notes were so comprehensive that they noted that she had failed to put in three words which changed the aspect of the matter.
I accept the mother's perception in relation to the matter and probably it was a real and appropriate perception, that the move to Perth, if it had been effected without the contest raised by the father, would have been in the longer term less disruptive than what has occurred certainly over the last six or eight months. The fact is, however, that the mother's wish in relation to the matter was, for an easy transition, and of course, that's not necessarily what has occurred, and the parties needed to be aware of the possible difficulties that would arise.
Ms Burnett was questioned about issues in relation to how she approached the mother in relation to the preparation of the report and how she directed questions to the mother particularly with regard to the decision to move to Western Australia. In paragraph 42 Ms Burnett says:
Questioned whether she had spoken directly to Mr Crabbe regarding the date of her relocation, Ms Cardenas stated, "For the most part it was done through solicitors". She emphasized that it "was known in Court" and "Mr Crabbe knew since October". Ms Cardenas said that the day following the Court attendance she received “a really long email from Mr Crabbe” stating "don't move from Townsville, stay in Townsville". She was meant to be in Perth on 3 March and assumed that the Thursday (21 February), following the hearing her solicitor informed the father of her intentions. She stated “Because of the history, previous phone calls and how they panned out I assume - imagine correspond a lot with my solicitor, anything like that is done through solicitors because it's not financial. Should be recorded. As far as level of care, who the kids live with, I won't discuss with him. It's gone on too long - gone around in circles. It's not healthy."
The fact is, that some of the statements made by the mother in relation to that matter are simply incorrect. One, in particular, which was to the effect that it was known to the Court was not correct. The other statement made with regard to Mr Crabbe knowing since October that she was going to Perth is also not correct. It could not be correct in light of the steps taken by both the mother and the father to discharge from the army and the exact situation that was described in the parenting plan entered into on 28 November 2007.
I commented before that the mother was responsible for an untruth in respect of her statements with regard to remaining in Townsville. She may not have been, as she indicated to Ms Burnett, able to conceive that couldn't go but whether she could conceive that she could or couldn't take steps in relation to this matter is very different and very significant to the situation when one considers that she was simply untruthful in the answers that she gave.
I also would find specifically that she was untruthful, at least to a degree, in perception with regard to the father knowing that she was going to Perth. The only real knowledge that the father could possible have had in relation to the matter was what was agreed between the parties on 28 November 2007 that she and the father would both remain in Townsville. It is a significant matter, as I have already indicated, in relation to these proceedings because all that has occurred in relation to this matter has flown from the uncommunicated decisions of the mother and the change of mind without such communications that occurred on or about the 12 December 2007.
In paragraph 44 the mother corroborates virtually that much in so far as communication when she has reported as saying:
Ms Cardenas was asked why she had not informed Mr Crabbe directly. Avoiding eye-contact, she stated, "Don't know, I guess I assumed - I guess I didn't think that it was important for him to know".
How the mother could have possibly believed on any level that it was not important for the father to know that she had changed her mind two weeks after she had signed the parenting agreement is beyond comprehension. It shows a lack of insight on the part of the mother, it shows a lack of respect for the father and his role in relation to the children and it shows a total lack of understanding of the role of
co-parenting and of the obligations that arise for both parents in relation to equal shared parental responsibility and what they had agreed was the appropriate course to be followed in relation to the children.In that paragraph, and in a number of others, Ms Burnett comments about physical actions of the mother. She speaks about avoiding eye contact and on other occasions talked about the mother having annoyance in her voice, or being critical of the father's parenting. The report by Ms Burnett is comprehensive. When questioned or challenged in relation to that and therefore, whether perhaps it might be an indication of her having some preconceived ideas in relation to the mother, Ms Burnett's answer was, I thought, significant. She spoke of the mother's demeanour, generally, as being most pleasant and cooperative.
She said, however, when questioned about comments relating to lack of eye contact, annoyance as a tone in her voice, the following:
With some questions directed by her to the mother there was a distinct change in her demeanour.
I gained the distinct impression that the mother was not averse, communicating very directly, either verbally or through body language, when she was not happy with questions directed to her in relation to decisions that had been made with regard to the parenting of these children and was very quick to determine whether one party or the other was on side and, in fact, made comments to that effect when speaking in the interview with Ms Burnett.
In paragraphs 62 and 63, Ms Burnett made telling observations in relation to the mother and the father. They were telling in that they reflected exactly what came through in the material and what came through in the evidence in this matter. Both the mother and the father have excellent relationships with the children and are able to, in every respect, meet the physical and, I would think to a significant degree, emotional needs of the children.
She says the following:
Despite frequent questions to their father, overall the children have waited patiently for the opportunity to paint as promised by
Mr Crabbe. [Ms Cardenas] helped her father clear a place on the outdoor table while [Y] showed me the paint brushes. Mr Crabbe enquired, "what are the rules of painting guys" and the children promptly responded. Mr Crabbe encouraged [Y] to count out loud his six paint brushes and upon successful completion commented, "good counting buddy". [X] asked the father to draw a picture of ‘[S]. Family interactions were warm, loving, joking and respectful. Mr Crabbe appeared responsive to the children's requests and comments. In turn [X] and [Y] responded well to their father with [X] volunteering to clean her brother and father's paint brushes.I would have expected nothing else, having read the material in relation to this matter and have seen the father with the children. Similarly, she reports in paragraph 63 the following:
Both children easily identified the feelings presented on the Bear cards. [X] felt “happy” today because “Mummy's here” and was “sad and angry” when she was away. She felt sad and angry at her father's home explaining “he has a little house. Daddy just has a guinea pig and the cat visits”, while her mother “has animals - dogs that's all”. [Y] disclosed that he felt “sad and angry” when either parent was absent, yet today he felt both “angry” and “just happy”.
The family observations go on to include Mr P. In paragraph 64 she reports as follows:
Ms Cardenas had bought two of the children's favourite games to play. [X] sat next to her mother and [Y] next to Mr P. At one stage [Y]'s frustration with losing a game and refusal to hand back part of the game was met with the mother's question, "Do you need to sit there and not play?" [Y] responded "I'm not even angry yet". A look passed between the two adults before Mr P suggested "Go spit it out; spit out the attitude". [Y] remarked "I did" and Mr P said "Show me". Later Ms Cardenas said had [Y] not returned the game item he "would have been secluded". The two games were played in quick succession before further structured activities were divided along gender lines.
There was some questioning as to whether that might have been in some way unfair to the mother because it suggested that she had the assistance of Mr P but I'm more inclined to the view, as was indicated by Ms Burnett that it was simply an indication of both parents, perhaps having different styles in relation to parenting but absolutely no criticism could be drawn in relation to either the mother or the father in relation to their capacity to care. I would confirm, absolutely here, that I had no doubt whatsoever as to the mother's complete capacity in relation to providing for both of the children, if Mr P were not present, for example, away on work and that no inference negative to the mother could in any way be drawn in relation to the matter simply as a result of her involving Mr P in a family interaction with both of these children.
Ms Burnett also comments upon the grandparents’ relationship with the children, being the paternal grandmother and grandfather as well as the mother's foster father and foster mother, Mr and Mrs M. They appear, all, to be very supportive and very appropriate in their relationships with the children. It is perhaps obvious that the paternal grandparents have had more involvement with the children simply because of geography but I draw nothing from that, other than the children would necessarily benefit from the opportunities of having a close relationship with those persons who are significant in their lives including, of course, the paternal grandparents and the foster parents of the mother.
Under the heading "evaluation" Ms Burnett spoke of the significance of the children's ages in relation to this matter. She was not questioned in relation to that research, and it appears generally of course, to be accepted that there are different considerations that arise with regard to children dependant upon their age and the effects that there will be upon them in relation to separation from one or other of their parents.
She says in paragraph 83 the following:
Research indicates that 0-6 years of age is one of the high risk groups for children relocating. This is due to young children's limited sense of time and immature ability to sustain emotional and cognitive (eg memories) connections with the absent parent. The geographical distance associated with each parent's relocation is disruptive to the present parent/child relationships in terms of the frequency of visits and the time and cost associated with travel.
She then goes on:
For example, [X] knew that her mother was "getting a new house" but was unable to recall independently whether she had seen the new house during her Perth visit. Given the children's present ages ideally the parents would choose to live closer to one another so that the children would have frequent and regular contact with each parent. Each child was too young to express a well formed view of their living arrangements. [X] missed her mother while [Y] expressed feelings of anger (predominantly) and sadness in the sadness of both parents.
It was a significant point. The comments that I would make in relation to that are that I accept that there are different effects upon children, dependant upon their ages. These children are young. They have close and binding relationships with both of their parents and of course, there would be significant effects upon the children in the event of separation. The parties, of course recognise that in the parenting plan of 28 November 2007. They agreed that the children’s best interests and welfare could and would be met by them living in close proximity to each other but there would be opportunities for there to be movement between the two households and each had taken appropriate and proper steps with regard to their seeking discharge from the army to ensure that the children's interests were to the forefront.
The concern that arises is one that I have commented upon previously. Two weeks later, the mother, without any consideration of the children and there cannot have been any consideration of the children other than perhaps as she suggested, her lack of any capacity to comprehend that she wouldn't be able to dictate what would happen in relation to the children, took steps which have had catastrophic effects upon both, the mother and the father and their careers but also, of course, upon the children.
The father commented upon that in an email that he sent to the mother the day after he became aware of her intention to move. The father was very aware of those circumstances and the effect of the actions of the parents upon the children. The mother was not, and as I have indicated before, it is a matter that is very troubling in relation to the proceedings. It is a matter also commented upon by Ms Burnett in relation to the proceedings.
She says at paragraph 86 specifically in relation to such issues, the following:
It must therefore be considered that [X]'s "bossiness, tears for attention and dramatics" and [Y]'s quietness, confusion, moodiness, anger, sadness and both children's tears "ferocious tantrums, kicking and screaming, sulking” are reactions to the multiple changes and/or losses in their lives, more so than an outcome of their stage of development, sibling relationship or parenting style.
Unfortunately, and it gives me no pleasure to say so, all of those situations have occurred and all have arisen as a result of the lack of insight on the part of the mother and the actions taken by her, directly as a result of her own wishes rather than a consideration of the best interests and the welfare of the children, in this matter. When speaking of the capacity of each of the parents in relation to the parenting,
Ms Burnett comments at paragraph 92 the following:
Parenting capacity is the ability to perceive a child realistically, empathise with the child and give priority to the child's developmental needs while personal maturity is the willingness to accept responsibility for behaviour and the ability to be based in reality. Ms Cardenas suggests that she is better at recognising and providing for the children's physical needs (eg clothes, shoes, hair lice treatment) however, many of those activities could be provided by most adults in care of the children. Ideally, parents will provide their children's needs for emotional nurturance and attachment including a sense of belonging and acceptance, a sense of personal power, pride and self esteem.
I commented before that I have no doubt that both the mother and the father are able to meet all of those physical needs in relation to the children. The real issue of course, is the capacity to meet the emotional needs of the children and I am, of course, troubled by the mother's actions in relation to this matter.
In paragraph 93 Ms Burnett goes on:
Ms Cardenas stated that children experienced a “total lifestyle change” living with their father. However, [X] and [Y] had “more of a social life”. Children need guidance in learning social skills including relating to others, developing friendships and dealing with conflict in an acceptable way. Away from their home environment, daycare is often instrumental in developing these social skills.
Of course, Ms Cardenas in stating that the children experienced a total lifestyle change apparently gave no recognition whatsoever to the fact that that total lifestyle change in relation to the children and their arrangements right up until about 27 February 2008 were directly as a result of her actions.
It is the same situation, if you like, as that which arose with regard to the untruthfulness in respect of her intention to go to Perth or not to go to Perth. The mother cannot blame or lay responsibility upon anyone other than herself. The decisions made by her in relation to this matter, lacked insight. They were self-centred and they were designed specifically to suit the mother's needs and requirements, without any real consideration of the effect upon the children. I was troubled in the extreme, for example, that the mother should say in her affidavit and confirm in oral evidence that she was surprised at the effect of her departure upon the children.
It showed little appreciation of the children's attachments to her and of course, to the father and little appreciation of the very real and responsible role that must be taken in relation to the parenting of children. And of course, the mature decisions that sometimes are made by one parent or perhaps both, to forego their own wishes, expectations and hopes in order to ensure that the best interests and welfare of the children are met.
Ms Cardenas made a similar statement or raised similar concerns with Ms Burnett where in paragraph 104 Ms Burnett makes the following comments:
Ms Cardenas stated that the children viewed their living arrangement with their father as a "temporary thing", “assumed that they were coming” and "[X] said you should just do it (relocate). He's not the boss of you; don't let him boss you".
Ms Burnett goes on, I think very perceptively to say:
These comments are more suggestive of children parroting an adult or adults’ concerns and wishes than independent thinking given their current ages and stage of development. As indicated earlier the children are most likely to be confused and have little understanding of what is happening in their lives despite Mr Crabbe's comment that [X] understood the concept of a parent going away to work. Children between the ages of 3 and 6 think concretely and tend to believe that they are the cause of things happening.
The fact is here that if these children are making those statements, which are reported by both parent then I am far more inclined to think that there has been far too much said to the children or certainly said in a situation where the children could overhear the circumstances. Both parents need to be acutely aware of the fact that children are very like "sponges", they take in what is being said and it is a tragedy that these children, and in particular [X], have already been drawn into the matter to an extent where they are parroting statements apparently made in relation to such a situation and are making comments which might, in some way, lead to concern that they are taking on the adult responsibilities, in relation to such matters.
I was enormously assisted by the evidence of Ms Burnett in relation to this matter. As I say, I accept categorically that Ms Burnett only had a “snapshot in time”, when she prepared her report in respect of the matter but as she said, and as I accept, her area of expertise is in understanding the relationships that exist and understanding the parties involved, in relation to the proceedings.
I turn now to the evidence of the parties, I have already made significant comments in relation to both the mother and the father in relation to this matter. I should comment at the outset that I was very impressed by both the mother and the father to certain degrees and in certain areas. I have, as I have already said, no doubt whatsoever as to each of the parents love and affection for the children and of course, the children's love and affection or them. That is not to say, of course, that there are not criticisms that could and should be made in relation to the actions of each of the parents in relation to these proceedings.
I am sometimes troubled by the fact, that when an assessment is made in relation to the parents and a consideration is given to the evidence that they have given, so much of the matters that come out in a judgment are specifically relating to areas of criticisms or concern that arise, in relation to one parent or the other. The fact is, as I have said, both parents are excellent parents, both parents love their children and would do all that they could to ensure that the children's best interests are met.
The real difficulty, of course, is that which occurs so often, the parents' hopes and aspirations, their goals and wishes in relation to the children are simply different and they are affected to a significant degree by their own upbringing and their own attitudes, in relation to such matters. With regard to the mother, for example, there were a number of issues that were troubling. I was troubled by some of the exaggeration and minimisation that occurred in the mother's evidence.
She gave evidence, for example, earlier on to the critical nature of her role with the defence force. She did not make any reference later on to that critical nature and it seems to me that there was a significant degree of exaggeration. I will comment upon that when commenting upon exhibit 10, the correspondence from the mother's solicitors to the father's solicitors of 20 February 2008. But before doing so there are a number of matters that arose in relation to earlier affidavits, which were of some concern.
The mother indicated, that the decision made by her on or about 12 December 2007, was brought about as a result, of at least to some degree financial circumstances, including the need to provide financially for herself and for the children but also she commented, because of the fact that she had no long service leave. She said very precisely, that she had no long service leave accrued, but when push came to shove, the real fact was that she knew, and she failed to say, that she had significant long service leave entitlements that fell due, as and from 28 April 2008.
The omission is not critical but it is an indicator of the mother picking and choosing, as do all of us, the evidence that we put before the Court. But of course, when one comes before a Court, it is critical that you be aware that the other side when well represented, as both parties were in relation to this matter, will find fault with what is said, how it is said, and why it is said. There needs to be complete and open disclosure and the mother was not complete or open in relation to this matter.
Not only did she, as I have already found, lie in relation to some issues of the evidence particularly around the hearing in February 2008 but she was less than frank, for example, with regard to the sale of her property, which had occurred before. She was very determined to suggest that she had signed a contract and that she had sold the property but of course, the real issue is that it was unconditional, other than issues as to finance. She knew that, she knew that she had money coming in, she knew that she had already arranged the uplift of her furniture, and to all intents and purposes, she knew she was going.
The real issue was, of course, purely and simply that she could not conceive that what she wanted, in relation to her future arrangements, including having the children with her, was anything other than what would happen. It is a tragedy that she had those beliefs but it is also an indicator, of course, of a lack of thought about the effects in relation to what was to occur or what might occur after 18 February 2008 and showed a lack of both insight and honesty within her.
The mother was, as best she could, seeking to manipulate the situation. The mother clearly was acting at that time out of self-interest. She was asked in cross-examination whether the father might legitimately have had cause to object to her intending to move to Perth when, on
28 November 2007 she had indicated that she and the father's intention, and both had acted upon it, was to remain in Townsville and to provide co-parenting arrangements in relation to the children.
She could not conceive that the father would have legitimate cause to be concerned about such a decision being made, only a matter of two weeks later, and went on, when asked whether if he did not have cause to object, he might have at least had a good argument, to respond rather self-centredly that she simply did not know what drove him. It was clearly lacking an insight. It was self interested and it was certainly not child focused. It was a matter that obviously recurred in relation to this matter and troubled me particularly in respect of the final determination.
I could continue through such aspects of the mother's evidence in relation to this matter particularly, the various issues that arose on
18 February 2008and the disclosures made in the affidavits that were filed by her, in respect of the proceedings. The fact is, that the mother was not, full and frank in the evidence that she gave and of course, the evidence has come back to haunt her in that, when challenged and there were clear indications of what the position was in relation to this matter, she was found wanting in relation to the legitimacy and the truthfulness of what she said, in relation to proceedings.
I was troubled by much of that evidence in relation to the matter. I was troubled by a number of other issues that arose. As I commented, the mother is not adverse to hyperbole in relation to her position and that is most clearly evidenced in the letter that was written, clearly upon her instructions to the solicitors for the father on 20 February 2008. In the second last paragraph of that letter, the following is said:
Our client also is needed by the army, who are doing their best to accommodate our client to retain the benefit of her critical skills in a time of international terrorism in which war, Australia is heavily involved and our client's skills are critical in keeping air crew trained and aircraft flying.
The non sense of that statement is evidenced by the fact that the mother marched onto RAAF Base [P] in Western Australia in or about mid-March of 2008. Within a matter of days she had sought on 18 March 2008, long service leave and had also sought and made arrangements to take leave commencing on 28 March 2008. The approvals that then followed meant that for seven months the mother was not in a position to perform “a critical and important role”, that was required in relation to the matter.
The statements and the exaggeration were outstanding. The mother would and did say whatever she thought she could to get what she wanted in relation to this matter and it does her no credit whatsoever, that she would, at the very best, exaggerate and at the very worst lie, in order to ensure that what she wanted in relation to herself, not the children, was exactly what occurred.
It was a nonsensical argument. It was one that clearly could be challenged and of course, the lie continued in so much of the statements that were made by the mother in her trial affidavit, particularly with regard to the circumstances that led her to attempting to obtain and subsequently obtaining long service leave. She had applied for long service leave on 18 March 2008. She then, over the next two months, says that circumstances developed which led her to finally decide on or about Mother's day that she was in a situation where it was essential that she should take leave.
The correspondence that was passed at a later time by her solicitors, indicate that she had recently, in light of the concerns that were expressed and they all started in April, applied for leave and had been granted four months leave. The lie, of course, is evidenced in the fact, as I have said, that the application for long service leave predated statements as to concern and, of course, it gives rise to a real concern as to what legitimacy, if any, there could be in respect of the concerns that were expressed by the mother, in relation to the children and to their wellbeing.
She had already indicated, for example, that she had little appreciation of how her departure might affect the children. It is too little too late to then be saying that she was terribly troubled by the effects upon the children and had taken certain steps. There were other matters that also arose in that regard. The mother, in her affidavit, complained of no telephone calls being received from the father on Father's day. The evidence, of course, was subsequently she spoke with the father when she called. I believe the father that three attempts had been made.
It was suggested that he might, for example, be considered to have taken the soft option in relation to rejoining the Defence Force, or it might be considered that he had in some way made a tactical manoeuvre in relation to the matter. I do not consider either of those to be an appropriate or reasonable assumption in relation to this matter. The father's position is, if you like, his world was turned upside down when the mother unilaterally acted as she did.
The father thereafter, took every appropriate step to ensure that as best he could, the best interests and the welfare of these children were met and those steps were appropriate in every respect. The father took steps to ensure that he was able to provide for these children. In no way could or should the father be criticised in relation to such actions taken by him in relation to this matter.
I was extremely impressed by the father in relation to the actions that he took. There were some elements of control that were troubling and one of those of course, relates to the concerns and complaints raised by the mother upon her return, of not being able to revert to equal time being spent with the children. I accept that he genuinely believed that the children might be the subject of further confusion if that was to occur and that he acted in that regard. But the greater consideration, of course, is the children's very close attachment to both of their parents and the need to ensure that both parents were able to spend as much time as possible with the children.
Similarly, the directive attitude of his requirement that the children continue, even though spending time with the mother, to attend at day care fails to really recognise that the children's attachments to the parents can be better fostered by time with the parents than unnecessary attendance of day care.
They are minor criticisms but again are criticisms of the father that must be alluded to in relation to the matter but as I say, it is an unfortunate circumstance in relation to these proceedings that all of the difficulties that have arisen in relation to this matter have centred upon the decision made by the mother which was, in my view, self centred and not at all child focussed. Unfortunately, I continue to find myself in the situation where I return to that particular assessment in relation to this matter.
Having made those many comments in relation to the evidence in respect to these proceedings I turn now, as I must to the legislative pathway to be followed in relation to the matter. As I indicated, the best interests of the child are paramount but then the various considerations that need to be looked at must be addressed. S.61DA requires the Court to apply a presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility.
With the exception of those matters that I have already touched upon in relation to order 10 of the amended response as sought by the father, everyone agrees that these children's best interests can be met by equal shared parental responsibility. There are some difficulties in communications but of course, that is not uncommon. Couples who remain together have different expectations or hopes in relation to their children, but they have to work through that and they do, just as clearly parents such as in this situation, must work through issues in relation to different hopes, goals and aspirations for their children, so as to ensure the children's best interests can and will be met.
The fact is that here, if the parents do put aside the difficulties that they have in relation to communication, these children's world will be a better world and it will be a world in which both parents have close involvement in all decisions and in all arrangements made, with regard to the children.
The presumption of equal shared parental responsibility can be rebutted in circumstances of abuse or violence. It is not a factor at all that arises in relation to this matter, or in other circumstances that satisfies the Court, that it is not in the best interests of the children. I touched upon that particular aspect of the matter in relation to the father's suggestion that he should have sole parental responsibility in relation to where the children might reside. As I have indicated, however, I do not at all consider that to be in the best interests of the children.
The fact is that difficulties in communication by the parents have to be overcome, because the children's life will be better if it is overcome. I gain no pleasure from suggesting that the parents need to, perhaps take a more positive role with each other because the children will be better for it.
The fact that the father has little trust on occasions of what the mother says, or that the mother has little trust on occasions in what the father says is a difficulty, but it is one that can be overcome if the parents recognise that the only real consideration here, that should be playing on their mind is the best interests and the welfare of the children. I believe that that can be achieved, I am comforted by the fact that the parents both, appreciate and suggest in the orders that they seek, that there should be equal shared parental responsibility, subject to that one qualification as indicated by the father and in my view, it is very appropriate course to follow.
I intend to make orders with regard to equal shared parental responsibility and no doubt the legal representatives for both parties have already explained at length the obligations that fall upon both parents, in relation to such decisions being required to be made. What flows from that determination is a requirement, that pursuant to the provision of s.65DAA, the Court must consider whether equal time with each parent would be in the child's best interests and is reasonably practicable.
If the mother is in Perth and the father is in [O] it is impossible, it is not just impracticable. It cannot occur but of course, there are other considerations. They relate to, if the children are placed with the father, then the mother will follow she says, so as to ensure that the children's best interests are met. The father says that he cannot do so and he says that there are a number of reasons in relation to that. One of those, which was elaborated upon in cross-examination as well as in evidence in chief was simply to the effect that the father had given his word upon re-enlisting with the Army and that he would not go back on his word.
Also, of course, is the fact that must be recognised, that the father has taken the retention bonus which was payable in relation to proceedings and has utilised that in relation to both these proceedings and no doubt other expenses, such that if he were to then seek discharge, there would be an enormous financial effect upon him which would have ramifications, no doubt in relation to his capacity to situate himself in Perth. If the parties are in the same locality of course, the best interests and the welfare of the children can only be met by ensuring that they have the opportunity to spend not only significant and substantial time in each parent’s household but I would think, equal time. That was what had occurred at the time of separation. There were then some difficulties arising perhaps from the deployments that both the mother and the father had and some upheaval in what arrangements were put in place.
Generally, however, both of the parents recognise and accept that if they are in the same locality there should be equal time. In my view that is the appropriate course to follow. And again, if the parties are in the same locality I intend to make an order that that occur and so that there can be no misunderstanding in the future as to what that might mean. I would further emphasize and will include within the orders, that in the event, for example, of the children being with the mother or the father for a substantial period of time, because of some intervening event, upon return of the mother or the father to the same locality, the equal time will revert.
It will not be a question or a situation as arose in June of this year, as to whether there should or should not be equal time. I emphasize to both parents with respect, that the nonsense that has gone on, and it is nonsense as between both, is not in the best interests of the children and will cease.
What I then am required to do in relation to the matter is, as best I can, make an assessment of what is in the best interests of these children considering of course, the objects and the primary and additional considerations that are set out in s.60B and s.60CC. Section 60CC is really a recitation of the objects in a form that sets out the way that the Court should follow through an assessment in relation to what arrangements are made with regard to the children.
Sub-sections (2) and (3) are particularly relevant. They are headed "The primary considerations” and the “additional considerations". The primary considerations are only two and to some extent they require, if necessary on the facts, a balance to be met. Sub-section (a) requires that the first primary consideration is to acknowledge the benefit to the child of having a meaningful relationship with both of the child's parents and (b) is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
As I have indicated already, sub-section (b) is not relevant in relation to this matter. There are not issues, certainly of physical abuse or violence, if anything these children are much loved and much cared for by both of their parents. That is not to say there is not inadvertently some concern as to psychological harm upon the children. I have commented just recently upon the fact that I think the father, perhaps to some extent with genuine concerns, over reacted to arrangements in relation to the children returning to spending half of the time with their mother.
It is a matter of concern that needs to be dealt with and similarly the mother, unfortunately I think, to a far greater degree, failed to take into consideration the very serious effects emotionally upon the children of her relocation and how that would affect the children's wellbeing and welfare. It is not, however, a factor that I would take into any real consideration in balancing the obvious benefits and needs for the children to have a meaningful relationship with both of their parents.
In that particular regard, I note the comment that was made in the submissions that were put to me on behalf of the mother with regard to Mazorski & Albright [2007] FamCA 520 the decision of Brown J, in Melbourne. There is a distinction to be drawn between the quality as opposed to the quantity of time to be spent by one parent or the other with the children but of course, one must look at what can best be arranged in relation to the matter. Where it is impossible for there to be equal time or significant and substantial time, then of course, the quality of the time is a significant factor to be looked at but that is not in my view the real consideration in relation to this matter.
These children have a close, significant and important attachment to both the mother and the father. It would be ludicrous to suggest that if the parties were in the same locality there were anything other than benefits to these children in having equal time in the household of both the mother and the father. Meaningful relationships can be different. Meaningful relationships can change, dependant upon the age of the children. There are many assessments that have been made as to how a meaningful relationship can be fostered and developed involving older children, who have already developed the close associations that are necessary with regard to both parents.
But of course, Ms Burnett in her report commented upon the very real risks that arise in relation to children, nought to six years of age, in relation to significant separation from one parent or the other. Unless it were impossible to affect, in my view equal time is an important consideration and is one that obviously takes into consideration those benefits that arise with regard to a meaningful relationship with both parents.
I turn now to the additional considerations set out in sub-section (3). I have already spoken at length about many of the matters that need to be looked at in respect of this matter and I do not intend to repeat them, other than to touch upon what is relevant.
Any views expressed by the child and factors such as the child's maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child's views. There is a little said here, and some criticisms, particularly spoken of by Ms Burnett, apparently coming from [X] in relation to whether the father is being bossy or the father is preventing the mother from doing what she wants. As I have indicated, I am more inclined to the view that those statements are more a parroting of what the child may have over-heard and are not in any way, matters that would affect the weight or give any weight to what should occur in relation to this matter.
If anything can be drawn from the wishes, in relation to the children, it is what is suggested on the part of both the mother and the father. The children have a close, abiding and important relationship with both of their parents. It is essential that that should be fostered and developed and it is the children's wish that they have every opportunity for that close and abiding relationship with the mother and the father.
The nature of the relationship with the child with each of the child's parents and of course, with other persons including grandparents or other relatives is important. These children have those close relationships. It is significant that they should be fostered and developed and it is not in my view appropriate, nor is there evidence upon which there could be findings that there is a closer or more significant relationship with one parent or the other. The relationship with both parents and of course, others significant, including the grandparents and the foster parents are relationships that are beneficial to the children and should all be fostered, to any degree that can occur.
Sub-section (c) is significant. It relates to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. There is a distinction that must be drawn in relation to this matter. The fact is that the father has, with a few exceptions, acted I think, in a most exceptional manner in ensuring that these children had every opportunity for a relationship with their mother. He has sought, and it is recognised in the report and in the evidence as I commented upon of Ms K, to obtain guidance and direction in relation to arrangements to be made with regard to the parenting of these children and to ensure that the children's best interests are met.
I have no doubt, whatsoever that the father will continue, as he has done, to facilitate and to encourage a close and continuing relationship between the children and their mother.
I am similarly confident that the mother will do so but I am not confident that she will do so with the same degree of intensity that is on the part of the father. The mother made the move firstly to Perth. She did not communicate such a critically significant factor to the father, indicating that she did not necessarily think that it was something that should be communicated to him. How she could possibly, in her wildest dreams have assumed that such a critical change in arrangements with regard to the parenting of the children was not something that should be discussed and communicated between she and the father, prior to any move occurring, is a matter that troubles me.
I gained the distinct impression, as did Ms Burnett, that whilst the mother recognised that there were benefits to the children in seeing and having a relationship with the father she put her own wishes in relation to such matters ahead of the best interests of the children and continued to apparently believe that some telephone communication and holiday time spent with the father, would have just as significant an affect upon the relationship with the father as would both parents being intimately involved in their day to day care, welfare and development.
There were some comments made to me, in relation to the mother's maturity and with a couple of exceptions, to her having the best interests of the children at heart, and to the forefront, more than the father. Unfortunately, I cannot agree with such an assessment in relation to this matter. I gained the distinct impression, that even as recently as perhaps April or May of this year, the mother was still more inclined to put her own wishes, hopes and aspirations ahead of the best interest and welfare of the children and that that would directly effect issues in relation to the fostering and development of the relationship that the children are entitled to, with both of their parents.
Sub-section (d) is also significant because of the effects that the mother's application, but also the father's application to a lesser degree, would have upon the children's relationship with the other parent. It requires that the Court give consideration to the likely affect of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents. The mother's first instance proposal, if you like, in relation to the matter, is the children live with her in Perth. The effect upon the relationship with the father would be catastrophic.
It is commented upon by Ms Burnett and it is obvious in relation to this matter. The father's proposal is that he live in [O]. The father's proposal also is that if the mother is in the same locality there should be shared parenting but if she is not in the same locality then it is certainly contended by him that he should have prime responsibility in relation to the matter. It is not, as I commented some considerable time ago, a relocation case, where one party or the other is to remain in the locality that both were in beforehand and one seeks to move.
It is rather, a significant change that will occur no matter what decision is made, in relation to this matter. I am more inclined, however, to the view that, whilst there will be effects upon the children in various ways, if the mother is in the same locality as the father in [O], then there will be real opportunities for a meaningful relationship with both parents but, if the mother is not in the same locality, there is a far greater likelihood of a proper and meaningful relationship being fostered if the children are primarily in the care of the father. It is a matter that influences me significantly in relation to these proceedings.
The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations, is relevant. If these children are in Perth and the father is in [O], there are enormous financial ramifications. Both, the mother and the father make suggestions as to how that might properly be dealt with, with regard to contributions being made by the mother and the father, to travel expenses and the like. I did not have the advantage of any real evidence in that regard, as to the cost of travel but not only with the financial toll, but the physical and emotional toll had upon the parents and upon the children is a matter that would give rise to real concerns as to these children being located in Perth, as the mother suggests, in relation to the proceedings.
Sub-section (f), in my view, should be read in conjunction with
sub-section (i) of s.60CC(3). It relates to an assessment of the capacity of each of the child's parents and of others to provide for the needs of the child including the emotional and intellectual needs and also requires and assessment to be made of the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child's parents. I have spoken at length about such matters already.
I have no doubt as to both parents' capacity to meet the physical needs of the children. To use what I have commonly seen in psychologists or social workers reports, the words are that both are "good enough".
It is not meant to be, in any way, a damning by faint praise but rather, an assessment that both parents can meet all of those needs that are necessary to ensure that the children's physical, educational and accommodation requirements are met. But in this matter, as in all, there must also be a consideration of the children's emotional development and of the attitudes to parenthood. As I have already commented at length and do not intend to repeat, I am far more convinced that the father is able to put those emotional needs and the appropriate attitude to parenting to the forefront, than is the mother, certainly at this time.
Issues in relation to maturity, sex, lifestyle, as well as cultural considerations including specifically Aboriginal or Torres Strait Islander cultural matters are not relevant, in relation to the determination nor, as I have indicated, issues in relation to family violence or the existence of family violence orders. A real consideration, however, is that which arises pursuant to provisions of s.60CC(3)(l). The Court must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Unfortunately, and I have commented upon this before, one does not have a crystal ball. You do not know what the future might hold. All that can be put in place is a framework in which there is, hopefully, opportunity for communication and proper discussion between parents, as to what arrangements might be made with regard to the children, now, and into the future.
The real issue here, of course, is these children are six and approaching five years of age. The father has a placement to [O] for three years. At the conclusion of that period, he made reference to the fact that he could seek back-to-back postings. If that were to occur, the children would then perhaps be getting close to 11 and 10 years of age or even a little older. Different considerations arise and of course, the most glaringly obvious of those is the fact that [X] may be a very different little girl to what she is now and her attachments to her mother may be very different arising from such matters as physical developments, emotional changes and the like.
None of us know what the future holds, and I certainly would not be so presumptuous as to suggest that I could put in place an order which will guarantee, from now until to when these children are 18, and that is when they stop being children, and the responsibilities stop, are orders that can work. All that can be hoped is the parents have learnt something from the difficult, emotional and financial stresses that have been put upon them at this time. To work together and to ensure that the interest of the children are met. As I have said, there is no perfect orders in relation to the matters, there can only be hope that there is a framework parties can work within, and that there is an expectation that they will put the best interests of the children to the forefront, which at least to some degree has not necessarily occurred to date.
The final factor to be considered pursuant to provisions of s.60CC(3) is that which is set out in sub-section (m) and it is a catch all. Is there any other fact or circumstance that the Court thinks is relevant? In this matter I have already addressed at length many of the considerations in relation to the proceedings. I do not believe that there are other considerations that would, in the end, effect the determination in relation to this matter.
As is, I hope, obvious from the lengthy reasons that I have given in relation to the matter therefore, I have come to the determination that at the very least, the children's opportunity to relocate to Perth is not in the best interests of these children. What flows from that, of course, is what arrangements should be put in place. The father says that there should be leave given to him to relocate to [O], that he has moved forward in his military career, to some extent, instigated as a result of the actions of the mother and I accept that that is the case.
The father is able to provide stability and a settled arrangement in relation to the children in [O] and certainly it will seem to me that that is an appropriate course to follow. Somewhat interestingly, if you like, it is also acknowledged by the father and quite properly acknowledged by the father, that if the mother is, as she says, in the same locality then the best interests of these children can be met by ensuring that they have the opportunity, not only to have equal shared parental responsibility vested in both of their parents, but also to have equal time spent with both of their parents.
For the reasons that I have given, therefore, in relation to this matter it is my intention to make orders generally in terms of those sought by the father in the amended response of 16 September 2008 with of course, as I have very clearly indicated, the exclusion of any suggestion that he should have sole responsibility in relation to decisions with regard to residence. I will direct that my reasons be published in relation this matter made available to the parties and of course, to their legal representatives.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate: C. Herbst
Date: 13 August 2009
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