Carr & Vincent
[2009] FMCAfam 608
•19 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARR & VINCENT | [2009] FMCAfam 608 |
| FAMILY LAW – Final arrangements for care of children aged 7 and 6 – father lives in Japan – mother lives in Australia – parties have poor relationship – communication difficulties – arrangements for children to spend time with father – appropriate surname for children – best interests. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Carr & Vincent [2008] FMCAfam 888 Bright v Bright (1995) FLC 92-570 Fooks v McCarthy (1994) FLC 92-450 Chapman & Palmer (1978) FLC 90-510 Beach & Stemmler (1979) FLC 90-692 Goode & Goode (2006) FLC 93-286 Bright & Bright (1995) FLC 92-570 |
| Applicant: | MR CARR |
| Respondent: | MS VINCENT |
| File Number: | ADC 2680 of 2008 |
| Judgment of: | Brown FM |
| Hearing dates: | 21 & 22 May 2009 |
| Date of Last Submission: | 22 May 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 19 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Noble |
| Solicitors for the Applicant: | Andersons |
| Counsel for the Respondent: | In Person |
ORDERS
The parties have equal shared parental responsibility for the children of the relationship [Y] born in 2003 and [X] born in 2002.
The children spend time with the father in the following ten day periods when he is on leave from his work and in Australia:
(a)from the conclusion of school on 25 September until 9:00am on 4 October 2009.
(b)from the conclusion of school on 14 December until noon on 23 December 2009.
The children spend time with the father for ten day periods at such other times that he is both on leave from his employment and is in Australia provided that the father provides to the mother notice in writing of the date he will be in Australia sixty days prior to his arrival in Australia to spend time with the children pursuant to this order together with his anticipated time of his arrival to collect the children provided that there is no more than one such ten day period of time each period of thirty days.
The mother provide the children to the father with all their necessary school uniforms, medications, casual clothing and night ware, school bags and materials and full details of all educational and extra-curricular activities including all necessary equipment and clothing for such activities for all periods of time the children spend with the father.
All handovers other than those which occur at school shall occur at Hungry Jack’s [B].
In the event the father is unable to conduct handovers the paternal grandmother Ms C is permitted to do so.
Both parties are at liberty to travel interstate with the children when the children are in their care provided a full itinerary including contact details for the children is given no less than four weeks prior to such travel occurring and that all such travel occurs during the children’s South Australian school holidays and or public holidays or on weekends.
On each of the parent’s and children’s birthdays the children will spend no less than four hours at times to be agreed, or in default from 3:30pm until 7:30pm, with the non-residential parent if that parent is in South Australia and if that parent is not in South Australia then the residential parent will facilitate the children telephoning that parent at 7:00pm South Australian time.
In the event that Father’s Day falls during the mother’s time with the children, the children are to spend from 10:00am until 6:00pm on Fathers Day in the father’s care if he is in South Australia provided that if Mother’s Day falls during time the children are with the father then the children are to reside with the mother under the same terms as for Father’s Day.
In the event that Father’s Day falls during a period the father is not in South Australia the mother is to facilitate the children telephoning their Father at 6:00pm South Australian time.
Both parties do all things and sign all documents necessary so as to ensure that both children have current Australian passports at all times.
The children otherwise live with the Mother.
The mother is restrained and an injunction granted restraining her from permitting the children to be referred to in any written document or to be verbally referred to as [Y] Vincent and [X] Vincent and that the mother ensure that the children are always referred to verbally and in writing as [Y] Carr-Vincent and [X] Carr-Vincent those being their properly registered names.
The parties be restrained and an injunction granted restraining them from denigrating the other, or their partner or any member of their respective families to the said children or from allowing them to be in the presence of anyone so doing and restrained from removing the children from Australia without order of this court.
Both parties be at liberty to attend all school function and to receive all school newsletters, notices and reports such as parents normally receive by way of prior arrangement with any school at which the children are from time to time enrolled.
Both parties are at liberty to attend all such sporting and recreational events and functions for all sporting and recreational organisations in which the children may be enrolled from time to time.
Both parties undertake to inform the non-residential parent of any medical or other emergency directly related to the children’s health or welfare as soon as practicable after such emergency arises with the other parent at liberty to visit the child or children according to the protocols of any hospital or medical specialist rooms.
The Father is at liberty to telephone the children on a landline telephone number provided by the Mother on Sundays between the hours of 6.00pm and 8.00pm and on Wednesdays between 7:00pm and 8:00pm South Australian time with the mother to facilitate the children having privacy during such calls and to ensure that the children text the father prior to 6.00pm South Australian time to his mobile telephone to advise if they will be unavailable and to nominate a time when they will be available to take the call.
The mother do ensure that her landline telephone connection is maintained and advise the father by text message to his mobile telephone if her landline is waiting on repairs and that she provide telephone contact via her mobile telephone which will be charged and turned on at all times set out herein.
Both parties undertake to facilitate the children telephoning the other parent when they are not in the other parent’s care and they express a desire to do so.
Both parties undertake to provide the other with their full contact details for all landline and mobile telephone numbers and to advise of any change occurring thereto within 24 hours of such change occurring.
The mother pay one half of the professional fees of Mr Tony McDonagh in relation to the preparation of his Family Assessment report and giving his evidence before FM Brown on 21 May 2009.
All children’s applications other than those relating to maintenance, are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carr & Vincent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2680 of 2008
| MR CARR |
Applicant
And
| MS VINCENT |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment concern final parenting arrangements for [X] born in 2002 and [Y] born in 2003.
The children’s mother is Ms Vincent. She lives in [F], a suburb of Adelaide. The children live predominantly with her and attend
[S] College.
The children’s father is Mr Carr. He is [occupation omitted], who lives in Tokyo, Japan. He is married to a Japanese National, Ms S. He and Ms S have a son, [Z] born in 2008.
The parties have never been married. They lived together between September 2001 and November 2007, when they finally separated. Their separation was difficult and acrimonious and remains so.
The parties are in dispute about many things, including what is the appropriate surname for the children. The father’s preference is that it should be “Carr-Vincent”, which is the name which appears on each of their birth certificates.
The mother’s preference is that it should be her name of “Vincent”, which she asserts is the name by which the children are habitually known in Adelaide at school and in various social and recreational circumstances.
The other major issues in dispute concern arrangements for the father to spend time with [X] and [Y], when he comes to Adelaide from Japan and the best means for him being able to communicate with the children, particularly by telephone, when he is outside of Australia.
Mr Carr is committed to coming to Australia on six occasions each year, for periods of up to ten days at a time. He believes that this arrangement will ensure that he has a meaningful relationship with the two children concerned. Given his work commitments and responsibilities to [Z] and Ms S, he is unable to commit to more frequent visits to Australia.
The mother is, ostensibly at least, not opposed to the children spending time with their father. It is her position however that the periods proposed by the father are inadequate to ensure that the children have the prerequisite level of meaning in their relationship with their father.
She would want the father to come to Adelaide at least once per month to spend time with the children for periods of up to ten days. She believes the periods proposed by the father are too short and infrequent and will necessarily ensure that the children do not have a rounded appreciation of their father because he will not be able to play a full role in all aspects of their lives.
It is Ms Vincent’s position that Mr Carr is a person of considerable financial means. Issues pertaining to the financial support of the children are at the heart of much of the conflict between the parties. Given her perception of the father’s financial circumstances and the needs of the children, Ms Vincent would want the father to purchase accommodation for himself in Adelaide, which he could use to spend time with the children, when he visits.
Up to now, the father has rented a holiday apartment in [G], when he has come to Australia to visit [X] and [Y]. From his point of view, this has provided adequate and suitable accommodation.
The mother’s view is that this arrangement is upsetting for the children and does not provide a sufficiently homely environment or supply a degree of continuity for the children, in what she categorises as a disjointed relationship between them and their father.
The mother’s position is in accord with the recommendations of Mr Anthony McDonagh, a child and family mediator, who prepared a family assessment for the court on 12 May 2009.
Mr McDonagh recommended that [X] and [Y] should continue to live in their mother’s full-time care and spend ten days each month with their father. Accordingly, Mr McDonagh’s preference would be that the children spend around 120 days per year in the care of their father.
Mr McDonagh described [X] and [Y]’s relationship with their father as “good”. As such, Mr McDonagh thought it “appropriate that the children are given every opportunity to enjoy their relationship with their father.”[1]
[1] See family assessment report dated 12 May 2009 at page 15
In reaching this view, Mr McDonagh considered that the sixty or so days of “contact” per year proposed by Mr Carr were likely to be more “episodic” and provide “much less of a relationship” than what he (Mr McDonagh) would prefer in an ideal world.
However, if his preferred outcome could not be achieved,
Mr McDonagh accepted that it would be appropriate for [X] and [Y] to spend as much time as was available with their father, given the strength of the relationship between Mr Carr and [X] and [Y].
Mr McDonagh described the relationship between the parties as “highly conflictive, competitive and muddled.”[2] I agree with this assessment. In his oral evidence, Mr McDonagh said there was “so much room for conflict at every level” [between Ms Vincent and
Mr Carr]. As such, Mr McDonagh was concerned about the long term emotional wellbeing of the two children, particularly given the differences between the two households of their parents.
[2] ibid at page 12
Accordingly, although at a shallow level, the parties are in agreement about the general orders which should be made, this remains a difficult case because of the high level of conflict between them.
In my view, there exists real danger that the children will be seriously harmed by this degree of conflict and may ultimately become alienated from one or other of their parents, particularly because of the practical difficulties which exist in the father coming regularly to Australia.
I have been involved with the parties in the past, at the earlier interim stage. These reasons for judgment should be read in conjunction with other reasons which I published on 20 August 2008.[3] As is apparent from those earlier reasons for judgment, the parties agree that they should have equal shared parental responsibility for [X] and [Y].
[3] See Carr & Vincent [2008] FMCAfam 888
As such, it is implicit that they agree that they should have joint responsibility for making decisions regarding major long term issues to do with the children. This position does not fit comfortably with their current dispute about the appropriate surname for the children and the ongoing conflict between them.
Mr Carr sees his long term future in Japan, where his wife and newly born son live. Ms Vincent does not believe that he can maintain two different families in separate hemispheres. As such, she believes that Mr Carr, if he wishes to have a relationship with [X] and [Y], needs to commit more fully to a life in Australia.
For his part, Mr McDonagh has concerns that Mr Carr does not fully appreciate the stresses which will arise from his complicated circumstances, particularly as, up to this point, the parties have displayed little facility to deal with practical problems which have arisen when the father has returned to Adelaide to spend time with the children.
At a visceral level, the mother regards the father as a selfish and self absorbed person, who has betrayed her and the children. She believes that it is unrealistic for the father to aspire to have the best of both worlds, so far as his wish to continue to live in Japan is concerned and his concurrent desire to spend regular periods of time with [X] and [Y] in Adelaide.
For his part, Mr Carr presents as a considered and resolved person, who only wants to spend reasonable amounts of time with the two children concerned so that he and they may know one another in future. He is apparently perplexed at the degree of difficulty which his position has created in his relationship with the mother.
This is the background against which this difficult case must be determined. The degree of difficulty is compounded by the various financial issues which arise between the parties.
Currently, there are proceedings on foot in the District Court at Adelaide regarding the division of property between them arising from their defacto relationship. In addition, the mother has commenced proceedings seeking a lump sum payment of child maintenance for [X] and [Y] from Mr Carr. She is seeking a sum of around A$500,000.00.
She is also seeking an urgent interim payment of child maintenance from Mr Carr. As Australia has no formal child maintenance arrangements with Japan, the provisions of the Family Law Act apply to the making of such orders.
Mr Carr’s position is that he is paying a sum of around $4,000.00 per month to Ms Vincent for the maintenance of [X] and [Y]. This includes the payment of the children’s school fees to attend [S] College.
Ms Vincent does not accept that this is currently the case.
She remains concerned that the father is not currently supporting the lifestyle which the children have previously enjoyed. She is bitter that she has been compelled to return to the paid workforce and concerned that she may not be able to support the children continuing at
[S] College, notwithstanding that Mr Carr has been paying their school fees to date.
I am not dealing with the financial issues in these reasons for judgment, which are directed to the care arrangements for the two children concerned. In determining these issues, the best interests of [X] and [Y] remain the paramount or most important consideration.
The orders sought
The father is the applicant in these proceedings. He has been represented throughout by his counsel, Mr Noble. At the conclusion of the evidence in this matter, Mr Noble provided the following minute of the orders which his client sought in the matter:
“1. That the parties have equal parental responsibility for the children [Y] born in 2003 and [X] born in 2002.
2. That the children do live with the father from after school Friday 22nd May 2009 until commencement of school 28th May 2009.
3. That the children do live with the Father in the following ten day periods when he is on leave from his work and in Australia:
(a) from the conclusion of school 25 September until 9:00am on 4 October 2009.
(b) from the conclusion of school 14th December until noon 23rd December 2009.
4. That the children do thereafter live with their Father for ten day periods at such other times that he is on leave from his work and nominates he will be in Australia provided that the Father do provide to the Mother in writing a calendar no less than SIXTY DAYS (60 days) prior to the first period of the said children’s residence set out therein.
5. That the Mother do send the children with all school uniforms, medications, casual clothing and night ware, school bags and materials and full details of all educational and extra-curricular activities including all equipment and clothing for same for all periods of time with the Father.
6. That all handovers other than those which occur at school shall occur at Hungry Jack’s [B].
7. That in the event the Father is unable to conduct handovers the Paternal Grandmother MS C is permitted to do so.
8. That both parties are at liberty to travel interstate with the children when the children are in their care provided a full itinerary including contact details for the children is given no less than four weeks prior to such travel occurring and that all such travel occurs during the children’s South Australian school holidays and or public holidays or on weekends.
9. That on each of the parent’s and children’s birthdays the children will spend no less than four hours at times to be agreed, or in default from 3:30pm until 7:30pm, with the non-residential parent if that parent is in South Australia and if that parent is not in South Australia then the residential parent will facilitate the children telephoning that parent at 7:00pm South Australian time.
10. That in the event that Father’s Day falls during the mother’s time with the children, the children are to spend from 10am until 6pm on Fathers Day in the father’s care if he is in South Australia provided that if Mother’s Day falls during time the children are with the father then the children are to reside with the Mother under the same terms as for Father’s Day.
11. In the event that Father’s Day falls during a period the father is not in South Australia the mother is to facilitate the children telephoning their Father at 6pm South Australian time.
12. That both parties do all things and sign all documents necessary so as to ensure that both children have current Australian passports at all times.
13. That the children otherwise live with the Mother.
14. That the mother is restrained and an injunction granted restraining her from permitting the children to be referred to in any written document or to be verbally referred to as [Y] Vincent and [X] Vincent and that the mother ensure that the children are always referred to verbally and in writing as [Y] Carr-Vincent and [X] Carr-Vincent those being their properly registered names.
15. That the parties be restrained and an injunction granted restraining them from denigrating the other, or their partner or any member of their respective families to the said children or from allowing them to be in the presence of anyone so doing and restrained from removing the children from Australia without order of this court.
16. That both parties be at liberty to attend all school function and to receive all school newsletters, notices and reports such as parents normally receive by way of prior arrangement with any school at which the children are from time to time enrolled.
17. That both parties are at liberty to attend all such sporting and recreational events and functions for all sporting and recreational organisations in which the children may be enrolled from time to time.
18. That both parties undertake to inform the non-residential parent of any medical or other emergency directly related to the children’s health or welfare as soon as practicable after such emergency arises with the other parent at liberty to visit the child or children according to the protocols of any hospital or medical specialist rooms.
19. The Father is at liberty to telephone the children on a landline telephone number provided by the Mother on Sundays between the hours of 6.00 pm and 8.00 pm and on Wednesdays between 7pm and 8pm South Australian time with the Mother to facilitate the children having privacy during such calls and to ensure that the children text the Father prior to 6.00 pm South Australian time to his mobile telephone to advise if they will be unavailable and to nominate a time when they will be available to take the call.
20. That the Mother do ensure that her landline telephone connection is maintained and advise the Father by text message to his mobile telephone if her landline is waiting on repairs and that she provide telephone contact via her mobile telephone which will be charged and turned on at all times set out herein.
21. That both parties undertake to facilitate the children telephoning the other parent when they are not in the other parent’s care and they express a desire to do so.
22. That both parties undertake to provide the other with their full contact details for all landline and mobile telephone numbers and to advise of any change occurring thereto within 24 hours of such change occurring.
23. That the Mother do pay the Father’s costs of and incidental to the within Application.
25. That the mother do pay one half of the professional fees of Mr Tony McDonagh in relation to the preparation of his Family Assessment report and giving his evidence before FM Brown on 21 May 2009.”
Mr Carr is next planning to return to Australia in late September of 2009. The parties were able to agree on arrangements for him to spend time with [X] and [Y] during this period and orders were made to this effect. In addition, orders were made to ensure that Mr Carr was able to spend time with the children during his current visit to Australia to take part in these proceedings.
Ms Vincent acted on her own behalf during the hearing before me on 21 and 22 May 2009. She has retained solicitors for the financial aspects of the proceedings with Mr Carr. Her solicitor provided some informal assistance in regards to the current proceedings, particularly in regards to the father’s proposed final orders for him to spend time with [X] and [Y], but no formal and final agreement could be reached between the parties.
One of the unusual features of this case is that the parties agree on the majority of the orders, which Mr Carr seeks. In particular, the mother agrees that if the children cannot be exchanged between the parties at their school, a neutral location should be utilised. She is comfortable with Hungry Jacks at [B]. In addition, she is agreeable to the children’s paternal grandmother, Ms C conducting the handover if the father is unavailable for any reason.
The mother is also amenable to many of the practical orders, which the father seeks, relating to the children’s school activities and medical issues. She also apparently recognises that it would be helpful to the children if the parties exchange the children’s uniforms, clothes and other paraphernalia before and after the children spend time with their father.
The mother is also in agreement that the children ought to be able to communicate with their father by telephone. This has been a major bone of contention between the parties in the past. It being Mr Carr’s position that he feels constantly frustrated in his attempts to telephone the children. Ms Vincent’s position is that she would prefer that telephone calls be scheduled in the morning rather than the evening.
In the past, the parties have lived overseas. Due to the nature of his employment, Mr Carr travels frequently and has access to cheap airfares. Given his current situation, in the longer term, he would like [X] and [Y] to holiday overseas with him and visit Japan. To this end, he seeks the issue of Australian passports for the two children concerned.
However, in the short term, he recognises that this issue is likely to be highly controversial so far as Ms Vincent is concerned. On this basis, he does not currently seek orders that would enable him to spend periods of time with the children overseas. However, he would wish to be able to holiday interstate with the children, particularly as the children’s paternal grandmother lives in Victoria.
Ms Vincent did not submit a formal minute of the orders which she seeks in this case. I am not critical of her in this regard. As previously indicated, the mother informed me that it would be her preference that the father spend more rather than less time with the two children concerned. In an ideal world, it would be her preference that Mr Carr returned to live permanently in Australia.
During the course of the hearing, I explained to Ms Vincent that I was unable to compel Mr Carr to return to live in Australia, if he did not wish to do so. In addition, I indicated that I could not force him to travel to Australia to spend more frequent time with the children.
Australia is a free and democratic country. As such its citizens have a freedom of movement, both within Australia and overseas. I am not in a position to interfere with Mr Carr’s entitlements in this regard, particularly so far as his wish to live in Japan and pursue relationships there.
In any event, for reasons which will follow, I am concerned that
Ms Vincent’s proposals are not entirely genuine. There is a significant level of tension between her current position that she wishes [X] and [Y] to have as extensive as relationship as possible with their father and her prior attitude to these arrangements, particularly her response to past orders of the court.
At best, I believe the mother has been passively resistant to the children spending time and communicating with their father. At worst, that she has been downright obstructive. In my view, this has stemmed from a current inability to divorce her own powerful feelings for the father from how the best interests of the children will be served.
The evidence
The father is the applicant in these proceedings. He relies on the following documents:
i)An affidavit of himself sworn on 23 April 2009;
ii)An affidavit of his mother, Ms C sworn on 29 April 2009.
The mother is the respondent in these proceedings. She relies on an affidavit of herself sworn on 13 May 2009.
Annexed to the mother’s affidavit are a number of pieces of correspondence, which have passed between the parties in the past. In addition, the mother has provided a psychological assessment of herself from Ms D. Ms D did not give evidence in these proceedings.
Mr Carr, Ms Vincent and Ms C each provided oral evidence in these proceedings and, as a result, I was able to observe them at close hand and make some appraisal of their personality and truthfulness.
The only other witness who gave evidence was Mr McDonagh, the family assessment writer. I found his report and evidence to be thorough and well considered. I accept his evidence. I understand why he has made the particular recommendations, which he has. However, Mr McDonagh conceded that it was not practicable for the court to attempt to compel Mr Carr to spend ten days per month with [X] and [Y].
The circumstances surrounding the parties’ final separation were difficult and traumatic for each of them. I have no doubt the mother feels abandoned and betrayed by what has occurred and that the parties’ separation has had implications for her financial security and the standard of living, which she has previously enjoyed. Certainly, this was the view of Ms D, who provided a diagnosis of adjustment disorder with mixed anxiety and depressed mood for the mother as at August of 2008.[4]
[4] See exhibit LV-005 to the mother’s affidavit
However, it is not my role to perform a post-mortem on the parties’ relationship and allocate responsibility between the parties for its demise. Rather, my focus must remain the best interests of the children concerned and, particularly in the context of this case, their entitlement to maintain a meaningful level of relationship with their father.
Mr Carr is an intelligent and articulate person. He answered questions put to him precisely. I have no doubt that he is committed to both children concerned and wishes to maintain a reasonable level of relationship with them. As such, he remained focussed on the children’s best interests throughout the case.
Mr Carr appeared genuinely perplexed at the mother’s attitude towards him and at a loss to know how best to approach her so that he could see [X] and [Y] and not expose them to any unpleasant altercation or incident. His position is a mixture of attempts to placate the mother’s concerns and achieve solutions to the practical problems which exist in this case.
The father believes that the mother is either irrational or motivated by reasons which do not relate to the welfare of [X] and [Y]. He is of the view that the practical problems in this case are readily solvable but for the mother’s attitude towards him. I found Mr Carr to be a patient person. He is neither unreasonable nor hectoring.
Ms C was a pleasant and honest witness. It was obvious to me that she and Ms Vincent have never had an easy relationship with one another. Ms C readily conceded that there had been an unpleasant incident between her and Ms Vincent some years ago, which she (Ms C) deeply regretted for her part in it.
However, like her son, my impression was that Ms C was not fixated with the past but rather wanted to move on in her relationship with
Ms Vincent, particularly for the sake of her grandchildren. Again, she seemed genuinely puzzled and upset by the strength of the mother’s reaction to her. Certainly, I do not think that Ms C is one of the drivers of the considerable conflict in this case.
My finding is that Ms C is a properly motivated grandparent, who is desirous of maintaining a proper relationship with [X] and [Y]. For obvious reasons, she is very supportive of her son and his application to have arrangements for him to spend time with [X] and [Y] formalised.
Ms C is available to assist her son to spend time with the two children. However, she has her own life and commitments in rural Victoria, where she lives. As a result she cannot easily drop everything to come to Adelaide.
Ms C seemed to me to be respectful of Ms Vincent’s position as the children’s mother and, as such had no wish to overstep her role as their grandmother. Again, Ms C presented as a person who wanted to find solutions to the problems in this case, not create more of them.
Mr McDonagh described Ms Vincent as “intense and passionate” in her personality. I agree with this assessment. He also found to be “hurt and upset” by her current circumstances, which have led her to become “angry” with the father, particularly that he had left her “life in disarray”.
Again, I think Mr McDonagh has perceptively described the mother’s current situation, which has, to a large degree, shaped the difficult and fraught emotional topography of the case. Mr McDonagh considered that the mother was in the process of a difficult adjustment to new circumstances.
Certainly, it would seem to me to be self apparent that her process of adjustment has necessarily been slower than that of the father, who has married and had a child since the parties separated. I am not critical of the mother for the intensity of her feelings. Occurrences of this kind have the potential to undermine the emotional equilibrium of even the most composed person.
Mr McDonagh thought that Ms Vincent was an intelligent and insightful person and, as such, he was confident she would be able to complete the necessary process of adjustment to her new circumstances. In this regard, Mr McDonagh thought that the mother had “moved some distance” since the parties separated. However, it is difficult to see that the parties will ever reach a stage where they have a warm and empathetic relationship with one another.
Much of the mother’s case was focussed on her anger with the father and her perception that he had abandoned his “Caucasian” family in favour of his “Asian” one. These being the terms utilised by the mother herself. She is resentful at the burden she must carry as essentially a sole and working parent to the children, who are accustomed to enjoying a privileged upbringing.
Undoubtedly, the mother now enjoys a lesser standard of living and has been forced to return to the paid workforce. This necessitates some level of commuting for her and, like many sole parents, she struggles to balance work and family commitments. However, other than offering my consolation for her new situation, there is little I can do about it.
I have no doubt that Ms Vincent is an accomplished and loving parent. She remains however extremely bitterly disposed towards Mr Carr. Her attitude towards Mr Carr poses an emotional threat to the children. It also renders her a far from dispassionate and reliable witness.
Of the two parties, I am satisfied that it is Ms Vincent who is driving most of the conflict in the case. It is difficult for her to restrain herself emotionally, when she comes into contact with either the father or
Ms C. At present, it is close to impossible for her to accept that
Mr Carr has other important commitments in Japan, which are equal to those he has towards [X] and [Y].
The flavour of much of the mother’s case is that she occupies the high moral ground, which is manifest by her avowal of the father needing to spend more rather than less time with the children concerned. However, I am satisfied that, up to this stage, notwithstanding her statements to this end, she has made it as difficult as possible for the father to spend time and speak regularly with the two children. On any view, she has been extremely difficult to deal with since these proceedings began.
She was however unfailingly courteous to me during the presentation of her case. She presented as a frail and emotionally brittle person. However, notwithstanding my sympathy for her, I believe I must be cautious about much of her evidence.
I am concerned that at both a conscious and unconscious level, she wishes to retard the level of the father’s relationship with [X] and [Y], in part to satisfy her own emotional needs. Accordingly, of the two parties, I accept that the father is the more accurate and objective historian.
In these reasons for judgment, findings of fact are made on the balance of probabilities, after having considered the evidence of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
a) Chronology
The father was born in 1966. The mother was born in 1967. The father is employed as an [omitted]. He has worked out of Japan since 1 October 2001. Currently, he works on a roster [working] for periods of between 20-21 days followed by 10 days off.
The parties began to live together in September 2001 in Queensland. A short time later the mother purchased a property at [F], which was registered in her sole name. It is the father’s case that he contributed substantial funds towards this property and has serviced the mortgage on it since the time of the purchase of the property concerned.
Both [X] and [Y] were born in Australia. In mid-2003, the parties lived in the Netherlands for about a year, where the mother has family connections. However, both prior to and after this relocation, the father continued to work in Japan.
The mother and children returned to Adelaide in 2004. Thereafter, the father returned regularly to Australia on his rostered days off to spend time with the mother and [X] and [Y]. On other occasions, the mother and children would meet Mr Carr at locations overseas.
The father’s evidence is that, on his periods off work from his [work] duties, he would provide a significant level of care for [X] and [Y], delivering and collecting them to and from school and preparing their breakfast and other meals. I accept that he was an involved parent during these periods, which enabled the mother to have some relief from sole parenting duties. It is also apparent that Mr Carr was the family’s breadwinner during this period.
Accordingly, it seems clear that the reality of [X] and [Y]’s lives, from a very early stage, was that their father lived and worked overseas but was able to return regularly to Australia to have periods of intense involvement with them.
This mode of living provided a comfortable standard of living for the family and enabled [X] and [Y] to develop a satisfactory bond with their father. Ms Vincent has not been in the paid workforce since shortly prior to [X]’s birth.
The lifestyle perhaps was not a mainstream one, but I have no doubt that the parties and the children concerned were part of a loving suburban family, albeit that Mr Carr had to work away for extended periods of time.
The parties finally separated in November 2007. For reasons already provided, it is not necessary for me to detail the circumstances surrounding that separation, which remain highly controversial.
In addition, the emotional consequences of the separation continue to reverberate for each of them, particularly Ms Vincent.
The father married Ms S around about this time. Undoubtedly the news of this marriage came as a great shock to Ms Vincent. Mr Carr and
Ms S’s son [Z] was born in Japan in 2008. The father, Ms S and [Z] live in an apartment in Tokyo.
In late December of 2007 and early January of 2008, the father visited [X] and [Y] in Adelaide and spent periods of overnight time with them. This was the beginning of his practice of renting an apartment in [G], which he shared with the children.
These visits seemed to have gone reasonably well, given the difficult circumstances. I suspect that the mother was emotionally numb at the time. Certainly this was the impression of Ms D, to whom Ms Vincent had been referred in November 2007. Ms D described the mother as “emotionally and mentally exhausted” from the process of disputation with Mr Carr.
Ms Vincent complained to Ms D of financial stress given her separation from Mr Carr. Ms D was of the view that it would be beneficial for Ms Vincent to have a break from parenting the children, although she [Ms D] was concerned at the emotional implications of such a break for [X] and [Y]. The impression I have is that Ms Vincent was extremely distressed and vulnerable at this time.
In these circumstances, the mother began to vent her concerns that it was not in [X] and [Y]’s best interests to move from their familiar school environment to what she described as “the father’s hotel room”, when Mr Carr came to visit them in Adelaide. It was her preference that the father should set up a permanent residence in Adelaide “in order to provide a familiar and safe home whereby the children would have a normal life as possible”.[5]
[5] See mother’s affidavit of evidence at paragraph 63
The father’s position is that the [G] apartment provides perfectly comfortable and acceptable accommodation for himself and the children. The complex in which it is set has a swimming pool, which [X] and [Y] enjoy. It is also his position that it would be prohibitively expensive for him to obtain permanent accommodation for himself in Adelaide, which he would use only on a limited basis.
For her part, the mother is resentful that the father has let go a cheap apartment near Narita Airport, which he previously shared with another [co-worker] and has moved to a more expensive apartment in a district of Tokyo with Ms S. It is her case that she has had to sell items of property to maintain herself and the children financially.
It is against this background that the exchange of the children’s uniform, clothes and other equipment has become emblematic of the conflict between them. The father is resentful that the children do not always arrive with the things they require to spend a few days with him. The mother is resentful at her perception that she must supply the children’s needs on a day to day basis, whilst the father is arbitrarily able to drop into their lives from time to time.
The mother returned to the workforce in February of 2008. Currently she is employed as an [occupation omitted]. She earns around $47,600.00 per annum. Mr Carr has been paying the interest only on the mortgage on the Property F property. The sum required is currently around A$6,000.00 per annum. As the principal on the mortgage is calculated in Japanese Yen, the amount required has fluctuated with currency variations.
In addition, Mr Carr has been paying the children’s school fees at
[S] College, which amount to around $20,000.00 per annum. In addition he advances a sum of A$380.00 per week to Ms Vincent, which he describes as child support.
Accordingly, in round terms, Mr Carr is providing around A$4,000.00 per month to Ms Vincent in respect of financial support for the two children concerned. It is her case that this sum is insufficient and has arbitrarily been reduced, when it has suited Mr Carr.
The import of Mr Carr’s case is that the sum concerned is a reasonable one and he has been driven to reduce some payments when the mother has forced him to purchase various items for the children to replicate things she has not been prepared to deliver with them but which can be regarded as essentials, such as clothing and school uniforms.
Mr Carr earns a sum of around A$276,000.00 per annum. Because he is an expatriate employee, it seems to be the case that he does not have to pay personal income tax in Japan. It is his case that he has considerable living expenses in Japan and is currently stretched financially, particularly because of the various legal proceedings in which he is involved with Ms Vincent.
As previously indicated, I am not dealing with the financial aspects of the parties’ case at this stage. I outline these matters in order to lay out some of the background to the conflict between the parties, which is deep and endemic.
It is the father’s position that it became increasingly difficult for him to spend time and communicate with the children from March of 2008 onwards. It is his case that the mother was becoming openly hostile and abusive towards him, including in the presence of the children.
I accept that this was so.
This was the background to the father commencing proceedings in this court on 7 July 2008. At his request, his application was given an urgent return date on 9 July 2008. It was his case that he was desperate to see the children and the mother was being unreasonably obstructive in this regard.
This was the background to me making an urgent order that the father spend time with the children from 2:30pm on 9 July until 10:00am the next day. The proceedings were adjourned until 4 August 2008, so that the mother might respond.
On 4 August 2008, I made orders which dealt with the father spending time with [X] and [Y] prior to his departure from Australia. I then adjourned the proceedings until 20 August 2008 so that I could make orders in respect of the father spending time with the children for the remainder of the year.[6]
[6] See Carr & Vincent (supra)
At this early stage, it was apparent to me that there was a significant and unacceptable level of conflict between the parties. It was my apprehension that the mother was the main driver of this conflict. Unfortunately, in the intervening period, it seems there has been little diminution in this conflict.
Regrettably, it has been necessary for me to make orders which have dealt with each period of time the father has spent with the children. Significant issues of conflict have concerned the appropriate location for the children’s exchange between the parties and whether it has been appropriate for the children to travel interstate, particularly to spend time with their paternal grandmother. Communication between the parties has remained extremely poor, being at best stilted and at worst abusive.
The father is able to plan well in advance when he will be in Australia and, as such, advise the mother of the particular day when he will arrive in the country. The greater difficulty is for him to predict exactly when he will land in Adelaide and the implications of this for his collection of the children from the mother.
The father travels to Australia on a variety of airlines, through various transit points, depending on the availability of seats. He generally lands in Australia at Sydney.
Aircraft are often delayed. There is invariably congestion over airspace at Sydney airport. Due to the vagaries of international travel, it is imprudent for Mr Carr to commit to being at a particular spot in Adelaide, at a designated time, to collect the children. Rather, he would prefer to provide “bands” of time, between which he anticipates he will arrive.
Ms Vincent resents being, as she sees it, at Mr Carr’s beck and call. The parties have no facility whatsoever to respond cooperatively to any delays in the father’s schedule and to rearrange handover arrangements at short notice.
Neutral intermediaries, apart perhaps from officials at [S] College, are non-existent. The father’s perception is that the mother will utilise any pretext to sabotage arrangements for him to spend time with the children. I find that the father’s suspicions are based in reality.
The father’s case is that he finds it very difficult to contact the mother and children by telephone. I find this is so. The only rational explanation for this difficulty is the obstruction of the mother. I accept that she will not answer her landline telephone or mobile phone, if she believes that it is the father who is attempting to contact her. I also accept that she does not respond to messages left by the father.
This is unacceptable behaviour on the mother’s part. As is universally known, in the past decade or so, there has been a revolution in the quality, accessibility and cost of telecommunications, including international ones. The ability to have lengthy and efficient international telephone calls has become one of the norms of every day life.
The vast majority of citizens in this country and in developed countries overseas have mobile phones and, certainly in this country, access to a landline telephone. Each of these instruments has invariably attached to it a facility for a caller to leave a message. It has become a regular activity of many in this country, particularly the young, to spend much time checking messages.
Accordingly, one of the mantras of modern life is that the telephone is too intrusive rather than the contrary. Telecommunications have become an all pervasive and, in my view, inescapable part of modern life. As such, it is disingenuous for the mother to assert it is difficult for her to ensure that the children are able to talk to their father regularly on the telephone.
In addition, were it not for the intense emotional overlay in their relationship, I imagine it would be comparatively easy for the parties to contact one another and exchange the necessary information as to when the father would be arriving in Adelaide, so that sensible arrangements could be made, focussing on the children’s needs and their mutual convenience. Sadly, the parties do not currently have that facility and are unlikely to attain it in the foreseeable future. In my view, the greater deficit in this regard clearly lies with Ms Vincent.
The father was scheduled to spend time with [X] and [Y] in the third term holidays of 2008. He came to Australia with Ms S and [Z], who were able to meet [X] and [Y] for the first time. Much of the visit took place at Ms C’s home in Victoria. The visit was not without its difficulties.
There were problems in the father returning the children to the mother. The father had to utilise some mutual friends to collect the children from him at the Adelaide Airport because the mother said she was unable to collect them herself. Later Ms Vincent asserted that Ms C had physically assaulted [Y].
From the father’s perspective, [X] and [Y] interacted well with [Z] and Ms S. It seems likely that Ms Vincent was discomforted by the children meeting their half sibling. She had other criticisms of the father’s level of care of the two children. I find that there is no substance to any of these criticisms.
There were other problems in respect of the father’s visits in December 2008 and January of 2009, which generated much correspondence passing between the father’s solicitor and Ms Vincent. Particular bones of contention concerned the appropriateness or otherwise of the purchase of a bicycle for [X] and the fact that the father wished to return the children early to their mother because his return flight to Japan had been brought forward slightly.
In these latter circumstances, the father arranged for Ms C to fly to Adelaide from Melbourne so that she could return [X] and [Y] to
Ms Vincent at the court appointed time.
The father’s flight into Adelaide on 15 January 2009 was delayed due to problems with his flight into Sydney. I am satisfied that the mother used this as a pretext to avoid delivering the children to the father for around 48 hours.
Again, the mother was unwilling to accommodate the father’s preferred time to return the children to her at the conclusion of the visit. However, Ms Vincent was also critical of Mr Carr in these proceedings because he retained the services of a nanny to mind the children until the time specified by the mother for their return was reached.
The matter returned to court on 9 February 2009. I ordered that the children were to spend time with their father from 9:00am on 9 March 2009 to 6:00pm on 19 March 2009. I specified that the children should be exchanged between their parents at the [shop omitted] at the Adelaide Airport.
The father arrived at the designated point of exchange 15 minutes early but the mother and children did not attend as scheduled. The father remained at the airport until 10:00am and then, on the advice from his solicitor, he attended at the mother’s home with a police escort. Both Ms Vincent and the children were at home on the day in question. As a result, the father was able to collect [X] and [Y].
The mother is highly critical of the father for engaging the police into the parties’ affairs. From the father’s perspective, he was fearful of there being a further unpleasant incident between him and Ms Vincent and he was at a loss to know how otherwise to deal with the situation. In my view, it was the mother’s behaviour which was the more unacceptable. Her recalcitrance occasioned the father’s engagement of the police.
The father also complains that the children were not provided with a reasonable amount of clothes for the visit with him. As a result, the father purchased additional school uniforms and shoes for the children.
The March visit coincided with the school term. As such, the father was responsible for delivering the children to and from school. There is no suggestion that he was unable to discharge his responsibilities to the children appropriately during this period. In part, Mr Carr has wished to see the children, during school terms, so that he can be engaged in the more mundane activities of their lives, particularly those related to their education.
Ms C travelled to Adelaide during the March visit to assist the father and also spend time with the children herself. Regrettably, as it turned out, she and Ms Vincent came into contact with one another at a [S] College social function – a picnic and cricket day, which the children also attended.
Having heard both Ms C and Ms Vincent, I am satisfied that the mother engineered a most unpleasant altercation between herself and Ms C, which involved Ms Vincent abusing Ms C. The incident does
Ms Vincent no credit and is unacceptable, particularly because of the risk of the children being exposed to such behaviour.
The incident confirms my impression that the mother currently has great difficulty in curbing her powerful negative emotions so far as the father and members of his family are concerned. There is a limit as to how much latitude the mother can expect to gain for her behaviour by her portrayal of herself as the long suffering victim of the father’s behaviour. In my view, the mother has long passed that limit.
Again, there was a further fiasco when the time came for the father to depart Adelaide and return [X] and [Y] to the mother. The mother left it to the last minute to arrive at the designated collection point at the airport. I am satisfied that she was in an emotionally volatile state and verbally abused the father. Obviously, exposure to this type of behaviour is not helpful to children of the ages of [X] and [Y].
The father wished to deliver to the mother two bags, which contained the children’s newly purchased school uniforms; their homework; books; and other personal belongings. In addition, the father had a new Epi Pen for [X], who has medical issues to do with him suffering possible allergic reactions.
Issues had earlier arisen between the parties as to the provision of the Epi Pen to Mr Carr. Children are ordinarily prescribed two such pens per year, one of which is kept at school, the other at home. Mr Carr had obtained a third such pen, at some inconvenience to himself, because Ms Vincent had not provided one to him.
Ms Vincent refused to accept delivery of the children’s possessions at the airport. Accordingly, with the assistance of his solicitor, the father arranged for a process server to come to the air bridge at the Adelaide Airport to collect the various items from him, which were subsequently delivered to [S] College.
Up to this stage, the mother has declined to retrieve the children’s possessions from [S] College notwithstanding her complaints that she is unable to afford to purchase the children new school uniforms. The same farcical situation pertains to one of the children’s bicycles, which remains chained to the fence at the mother’s home, where the father left it.
The father’s reaction to the mother’s behaviour to date is summarised in his affidavit material as follows:
“I say that the mother’s actions since separation have been designed to alienate the children’s affections from me;
The mother has consistently and in front of the children made demeaning and derogatory remarks about myself and my family including my mother, my wife Ms S and our son, [Z].
I have frequently been referred to as the Disney Dad and accused of not loving the children and I believe these remarks may be made in front of [Y] and [X].”[7]
[7] See father’s affidavit dated 23 April 2009 at paragraphs 149-151
The mother’s perception of the situation can be gleaned from this extract from her affidavit material:
“I am not preventing the father from participating in the children’s lives; I just ask that he participate in the “real” parenting. Parenting is not just about how exotic the holiday destination is or how many flights he can provide them, is what the father apparently believes. Parenting is also about doctors, dentists appointments, cleaning up vomit, taking sick days when the children are sick etc.”[8]
[8] See mother’s affidavit at paragraph 99
Although the mother asserts that she wants the father to participate in the children’s lives, my apprehension is that she is willing for this to occur only on terms of her own dictation. Otherwise, for reasons to do with her own emotional vulnerability, I am satisfied that she has gone to some considerable lengths to sabotage arrangements for the father to spend time with [X] and [Y] and has made things as difficult as possible for Mr Carr in this regard.
I can understand why the mother feels hard done by, given her current circumstances. However, her feelings of personal grievance do not provide justification for her attempts to subvert the father’s relationship with [X] and [Y], who are not responsible for the current state of affairs between their parents. They are entitled to have a relationship with their father, regardless of his financial affairs and personal circumstances, no matter how much their mother disapproves of how he manages them.
b) Ms C
Ms C is sixty-four years of age. She is semi-retired, although she works on a voluntary basis with a [omitted] organisation. She has other casual retail employment.
Ms C reports enjoying the periods of time, which she has been able to spend with [X] and [Y]. She concedes that, at times, [Y]’s behaviour has been trying.
In particular, during the September/October visit, [Y] apparently referred to her paternal grandmother as a “witch”, an expression which [Y] disclosed her mother had used in respect of Ms C.
However, I accept that overall [X] and [Y] have enjoyed spending time with their paternal grandmother and have a close and loving relationship with her. At this stage it is likely that Ms Vincent can see nothing positive in the children’s interaction with their paternal grandmother, which is regrettable. For reasons already provided, it is my finding that Ms Vincent is the person who bears the greater level of animus between the two women concerned.
My impression is that Ms C is a doting grandmother who will go to considerable lengths to devise activities for [X] and [Y], which the children are likely to find appealing. I reject any suggestion by
Ms Vincent that Ms C has constantly denigrated her to [X] and [Y].
c) The family assessment report and the evidence of Mr McDonagh
Mr McDonagh visited the father and the two children concerned at the [G] apartment, when the father was in Adelaide on 12 March 2009. He also visited Ms Vincent, [X] and [Y], at their home, on 26 April 2009.
Accordingly, Mr McDonagh has a significant advantage over me in this case. He was able to see the parties directly interacting with [X] and [Y] and so make a direct appraisal of the relationships concerned.
Mr McDonagh observed [X] and [Y] to interact with their father in a “familiar and affectionate manner”. Mr Carr himself was observed to interact with the children in an age appropriate manner.
[Y] was found to be a friendly and charming child. She told
Mr McDonagh she liked seeing her father because “he is a good dad”. [X] also reported that he like seeing his father. Like many children of his age, [X] reported that he would like to live with both his parents but this was impossible because “they don’t want to live together”.
Mr McDonagh characterised the mother as being very upset and angry with the father. This is undoubtedly the case. As such, Mr McDonagh was of the view that the parties were locked in a range of disputes, often over fairly minor issues. Again, this opinion seems self apparent.
As such, Mr McDonagh was of the view that the relationship between the parties remained very poor and was one which had no tolerance for any level of frustration between the parties. He believed that all issues, no matter how trivial, had the potential to be contentious.
The import of much of Mr McDonagh’s evidence was that the children, due to their comparative immaturity and the strength of their relationship with both their parents, had been able to weather much of the emotional storm occasioned by their parents’ separation reasonably well.
He was not sanguine about their ongoing ability to remain emotionally resilient, given the strength of the conflict between the parties and his concerns about the long term viability of Mr Carr’s proposals to visit Adelaide in future. He opined as follows:
“Mr Carr is not thinking ahead. He and the children might be continuing their arrangement over five or ten years. Mr Carr is expecting the children to continue to tolerate living with him in an artificial setting in a short term rented apartment. For a third of each month the children will be in an environment to which they are not emotionally attached, away from the majority of their possessions and familiar objects. In the long term the children might not be as tolerant of the father’s living arrangements as he would want them to be.[9]
[9] See family assessment report at page 14
In particular, Mr McDonagh was concerned that Mr Carr lacked insight into the fact that he was totally reliant on Ms Vincent to make his proposed schedule of visits successful. At this stage, he considered that the parties lacked sufficient tolerance and understanding to be able to deal with the exigencies arising from the parties’ unusual situation, particularly in respect of issues to do with delays in the father’s travel arrangements and difficulties with his accommodation.
It was for these reasons that Mr McDonagh was in favour of the children spending more rather than less time with their father and, if possible, Mr Carr purchasing permanent accommodation for himself in Adelaide. These factors caused Mr McDonagh to provide the following opinion:
“The relationship between the parents is atrocious. Mr Carr seems to have little understanding of the effects of his proposal on the children or the mother. He is committed to being actively involved in the children’s lives. He has no understanding that his visits might be disruptive for the children or that his visits might impose on the mother’s busy daily schedules and routines. The more routine and scheduled the father’s visits are the less likely they are to disrupt the children.”[10]
[10] ibid at page 14
All in all Mr McDonagh sounded loud notes of warning in respect of the complexity of the situation, which he feared might become more complex as time unfolded and the children grew older. Although I accept that Mr Carr is a loving and devoted parent, I share
Mr McDonagh’s concerns. In particular, Mr McDonagh believed that the children were likely to become more demanding of their father in future and potentially less forgiving of his complex circumstances.
In this regard, Mr McDonagh presented the following opinion:
“If the father is unable to come to Australia on a regular basis with a regular schedule then he will be expecting the mother and the children to accommodate his needs rather than he accommodates the children’s needs. The children will become more demanding with time. If they consider that the father is putting his own or his Japanese family’s needs before theirs then they will lose interest in pursuing a relationship with their father. Mr Carr needs to be careful that he does not compromise his relationship with his children because of the demands of his work or of his family in Japan.”[11]
[11] ibid at page 16
Accordingly, in an ideal situation, it would be Mr McDonagh’s preference that Mr Carr commit himself to coming to Adelaide once per month for periods up to ten days at a time and that he secure a permanent base for himself in the city. In this way, the children would have the greatest potential to have an enduring relationship with their father and also were likely to be spared the worst stresses arising from their parents’ poor relationship with one another.
However, Mr McDonagh was forced to concede that this ideal situation was unlikely to eventuate because of Mr Carr’s commitments in Japan. In these circumstances, in spite of his forebodings, Mr McDonagh acknowledged that the father’s proposal was the next best option and was currently a workable one because of the close and loving relationship between [X] and [Y] and their father.
Although Mr McDonagh was somewhat critical of Mr Carr, particularly in his regards to his ability to foresee future difficulties, it is not his (Mr McDonagh’s) evidence that Mr Carr is not able to parent [X] and [Y] competently. I am satisfied from Mr McDonagh’s evidence that [X] and [Y] have an excellent relationship with their father and look forward to spending time with him.
It is clearly the thrust of Mr McDonagh’s evidence that the children’s relationship with their father is one which needs to be preserved and encouraged. As such, it would be Mr McDonagh’s preference that the children spend as much time as possible with him in future.
As far as possible, Mr McDonagh recommended that Mr Carr’s visits to the children needed to be “routine” and as such, it was appropriate that he should give Ms Vincent as much notice of his visits as possible. In this regard, Mr McDonagh recommended as follows:
“Any arrangements that the father makes needs to recognise and respect the mother’s working life and the children’s need for predictability and certainty in visits with their father.”[12]
[12] ibid at page 17
Accordingly, to ensure the maximum level of workability of Mr Carr spending time with the children, Mr McDonagh recommended that handovers take place outside of Ms Vincent’s working hours and took place at a mutually agreed location. He also recommended that
Mr Carr provide Ms Vincent with a minimum of sixty days notice of his intention to visit the children and that he provide her with full contact details of where the children would be staying with him.
In the orders which he seeks in these proceedings, Mr Carr has taken onboard these recommendations and is in general agreement with them. In future, due to his financial circumstances, Mr Carr proposes to keep renting a holiday apartment at [G], during the periods in which he is in Adelaide.
Finally, Mr McDonagh recommended that each of the children should be provided with a mobile phone so that the father could readily communicate with [X] and [Y] by telephone.
My impression was that Mr McDonagh had some reservations about this recommendation but put it forward as a means of removing
Ms Vincent as the person who had to facilitate the children speaking with their father, given the high level of conflict which existed between the parties.
Given their ages, Mr Carr is not in favour of the children having their own mobile phones at this stage. From his perspective, it should be a comparatively simple matter for the children to speak to him via their home landline number. He is concerned that the issue of a mobile phone to each of the children will create more problems than it solves.
The legal principles applicable
In the earlier reasons for judgment, I set out the relevant legal principles applicable to the making of a parenting order pursuant to the provisions of the Family Law Act 1975. I repeat these principles for the sake of completeness in these reasons for judgment.
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [X] and [Y]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
The fundamental task for the court, in any parenting case, is to determine, bearing in mind these goals and principles, what is the best outcome for any child concerned, both now and in the future. The right a child has to know and be cared for by both of his or her parents is uneffected by the marital status of the child’s parents or indeed the residential circumstances of those parents.
My responsibility is to deliver an individualised response to the circumstances of [X] and [Y], bearing in mind that I am to ensure that they have the benefit of having both their mother and father involved in their lives and circumstances to the maximum extent, which is consistent with their best interests.
The principles of the Act also recognise the important role that grandparents and other relatives can play in a child’s life. In terms of a child developing a fully rounded identity, it is very often important for that child to understand that he or she is part of a “wider family”, which is available to provide nurture, love and support.[13]
[13] See Bright v Bright (1995) FLC 92-570 at 81,658 per Treyvaud J.
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
In this particular case, Mr Carr and Ms Vincent have previously agreed that they should have equal parental responsibility for [X] and [Y].
There are no concerns about family violence, neglect or abuse in this case. Both Mr Carr and Ms Vincent are loving, capable and well resourced parents. As such, I am satisfied that it is likely to be in [X] and [Y]’s best interests that their parents have such equal shared responsibility in respect of them [section 61DA(4)].
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
The current dispute between the parties, regarding the appropriate surname for the children to bear, is not a particularly propitious harbinger of the parties’ ability to exercise joint parental responsibility for [X] and [Y]. Nor is their currently poor and acrimonious relationship. However, given the obvious devotion and interest which both parents have in [X] and [Y], it remains my view that they should continue to hold joint responsibility for the children.
The issue of which surname [X] and [Y] should bear is also governed by the principles contained in Part VII of the Family Law Act. Like all issues to do with children in this court, the guiding principle for the determination of the surname issue is which outcome is likely to be in [X] and [Y]’s best interests.
In Fooks v McCarthy[14] Warnick J said as follows:
“There is only one principle, that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.”
[14] Fooks v McCarthy (1994) FLC 92-450
The factors to which earlier courts most frequently have had regard in determining whether there should be any change in a child’s surname or for the surname to revert back to that which it was previously, include the following:
a)the short and long term effects of any change in the child’s surname;
b)any embarrassment likely to be experienced by the child if his or her name is different from the parent with custody or care and control;
c)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
d)the effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
e)the effect of frequent or random changes of name;
f)the contact that the non custodial parent has had and is likely to have in the future with the child concerned;
g)the degree of identification that the child concerned has with his or her non custodial parent;
h)the degree of identification, which the child concerned has with the parent with whom he or she lives;
i)the desire of the father that the original name be restored.”[15]
[15] See Chapman & Palmer (1978) FLC 90-510 and Beach & Stemmler (1979) FLC 90-692
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives, both in terms of spending time with their children and decision making for them. The optimal parenting outcome is for parents to be fully involved in their child’s schooling; sporting activities and recreation; and their daily routine, as well as special occasions; – so long as this level of involvement is commensurate with protecting the children concerned from harm.
Accordingly, if the presumption of equal shared parental responsibility applies, the court is required to consider firstly whether the children concerned should live with their parents for equal periods of time, provided this outcome is both likely to be in the children’s best interests and reasonably practicable.
If the court rejects equal time, for reasons relating to the children’s best interests or practicality, it is then required to consider the children living with each of their parents for “substantial and significant” periods of time. Again, this second outcome is also subject to considerations of the children’s best interests and practicality.
In this case, it is clearly impracticable for [X] and [Y] to live with both their parents for either equal periods of time or substantial and significant periods of time, given the reality of Mr Carr’s situation. However, the court is still required to consider the outcome which it believes will best serve [X] and [Y]’s interests.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In assessing the various considerations arising under section 60CC (2) & (3) the court is required to assess the degree of participation of the parents concerned in the lives of their children both before and after separation.
This assessment includes how much time and communication each parent has had with the children; the degree of their involvement in long-term decision making; and their fulfilment of financial obligations towards the children [section 60CC (4) & (4A)].
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives. These considerations emphasise the benefits for children of effective co-parenting and the obligations on parents to facilitate it.
Determining [X] and [Y]’s best interest – section 60CC
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect the children concerned from harm, as a result of exposure to abuse, neglect and family violence; and the benefits of them having a meaningful relationship with each of their parents.
The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [see Goode & Goode (2006) FLC 93-286 at 80,901].
In this case, there are no issues concerning neglect or abuse in respect of either [X] or [Y]. They are well cared for and much loved children. In addition, although the relationship between Mr Carr and Ms Vincent has been at times a difficult and turbulent one, it is not suggested that this is a case which centres on the need to protect the children from exposure to family violence.
Accordingly, the benefits which [X] and [Y] are likely to derive from having a meaningful relationship with not one but both of their parents must be given pre-eminence in this case. In my view, it is likely to be of fundamental benefit to both [X] and [Y] that they know and interact with their father as much as is possible, notwithstanding the fact that his personal circumstances have led him to live predominantly in Japan.
It is not the children’s fault that Mr Carr has determined that his future lies more in Japan than Australia. Their entitlement to have a meaningful relationship with their father transcends any consideration of why that particular relationship may not reach its optimal state of development or the allocation of any fault for such a circumstance because of the father’s choice to live in Japan.
In an ideal world it would be preferable that Mr Carr came more frequently to Australia so that the children could spend more frequent and varied periods of time with him and necessarily their paternal relationship would be made more “meaningful”. However, given
Mr Carr’s commitments such an outcome is not possible.
As such, in my view, the court must make whatever orders are open to it to ensure that the children have the opportunity to have the most meaningful relationship possible with their father as is practicable given the unusual circumstances of this case, unless it can be demonstrated that such an outcome would not be in the children’s best interests.
I appreciate that Mr McDonagh has considerable reservations about the overall workability of the father’s proposals in the longer term. I share those reservations, particularly given the parties’ poor relationship with one another. However, I cannot compel Mr Carr to come to Australia more frequently and, even if I could, I do not think that such an outcome would be objectively reasonable given that Mr Carr has a family and other commitments in Japan.
Nor, given the strength of the children’s relationship with their father, do I think it would be in their best interests to restrict the time the children spend with their father because of potential problems in the future. Rather, like the parties themselves, I must make the best use of the time available, so that [X] and [Y] may have the best relationship possible with their father. With some reservations it seems that
Mr McDonagh also recognises the reality of the situation.
In the first interim decision I said as follows:
The father’s working conditions are unusual. For many years, he has pursued his profession outside Australia. He is well remunerated for his services. He has also formed commitments in Japan, which he cannot easily sever. His income is the main source of financial support for [X] and [Y].
The main focus, in this case, is the service of [Y] and [X]’s best interests. I have no authority to compel Mr Carr to give up his employment in Japan or direct that he return to live predominantly in Adelaide, even if he did not have such substantial ties in Japan.
We live in an age where the workforce is becoming increasingly deregulated and internationalised. Skilled workers are now often compelled to look for work far a field from where their families normally live. They go to locations where they can be best remunerated. This is the phenomenon of the “fly in fly out” workforce. The father’s work schedule is an extreme example of this. Undoubtedly such trends place pressures on familial relationships. It is the mantra of the age that work and family commitments are becoming more and more out of kilter.
At the same time as the workforce is becoming more and more globalised, relationship breakdown continues to be common. Courts, in shaping meaningful parental relationships for children, must endeavour to fit child/parent time into the context of a parent’s work responsibilities. Often, as in this case, a parent’s work roster will be novel. It is no longer the automatic paradigm that parents work a conventional working week from Monday to Friday and have weekends free.
Children, in the formation of their parental relationships, should not be penalised because of the work schedules their parents chose to follow, very often as a result of a desire for the financial betterment of their children. In this case, it seems difficult to see how the father could easily change his work schedule, certainly not without financial jeopardy or causing problems to his family in Japan. Necessarily, he will be able to come to Australia every few weeks or so and will remain in this country for extended periods of time before returning to his schedule and other family commitments in Japan. [16]
[16] See Carr & Vincent supra at paragraphs 59-63
I have no reason to revisit these comments after the more exhaustive examination of the parties’ respective positions now available to me at the final hearing stage. Given the provisions of section 65DAA, once the presumption of equal shared parental responsibility has been applied, the practical underpinning of how a child will have a meaningful relationship with a parent is based on both the extent and quality of time spent between the two.
I am satisfied that [X] and [Y] will be able to have a meaningful relationship with their father and will benefit from that relationship notwithstanding that Mr Carr will only be able to come to Australia on, at best, six occasions each year.
Notwithstanding the limitations of this arrangement, [X] and [Y] will be able to spend time with their father on weekdays, weekends and on holidays. In addition, to some extent, as his visits will coincide with the school term, Mr Carr will be able to be involved, to some degree in the children’s daily routine [section 65DAA(3)].
The children know and love their father. I consider that this bond will be able to maintained through the regime proposed by Mr Carr. Without doubt, Mr Carr will be in a position to finance enjoyable holidays with the children in future.
It will be more difficult for him to foster a sense that he is integrally involved in the day to day reality of the children’s lives, given the tyranny of distance involved. However, this circumstance of itself does not mean that the relationship between [X] and [Y] and their father will be inevitably leached of meaning.
The additional considerations
a) The children’s views
The children are too young to be able to express any definitive view regarding the appropriate outcome in this case. However, it seems clear that both [X] and [Y] enjoy seeing their father and wish to see him as much as possible.
b) The nature of the children’s relationship with each of their parents and significant others
The most significant person in the children’s lives at the present time is undoubtedly their mother, who provides the vast majority of the parenting required for the two children concerned. In this regard,
Ms Vincent feels hard done by and would sorely like more assistance from Mr Carr.
The children also have a significant relationship with their father, notwithstanding the fact that he lives primarily in Japan. It has been the reality of the children’s lives, for as long as they can remember, that their father has worked overseas and has returned to Australia to spend time with them. As such, I do not think that it can be said that the father’s choice of employment has, of itself, prevented him from having a significant relationship with [X] and [Y].
In the past, whilst the parties were in a committed relationship together, Ms Vincent supported Mr Carr’s decision to work off-shore. No doubt she was of the view that the children would be able to maintain their paternal relationship, if Mr Carr came back to Australia during his rostered time off work.
The relationship between the parties has now come to an end. Mr Carr now has other significant commitments in Japan, which will prevent him returning to Australia as often as he did previously. However, I have no reason to believe that this change of circumstances will result in the children’s paternal relationship becoming less significant in future.
[X] and [Y] have a recently born half-brother, [Z]. From the father’s perspective, he wishes the children to have a close and loving relationship with [Z]. To this end, he arranged for [Z] and his current wife to travel to Australia shortly after [Z]’s birth.
It is Mr Carr’s expectation that the relationship between [X] and [Y] on the one hand and [Z] on the other will grow more significant as the children each grow older. Necessarily, these relationships will be best fostered if both [Z] and [X] and [Y] are able to visit one another in their respective home environments.
At this stage, it is clear that Ms Vincent has a fairly antipathetic view of [Z]. She is also vehemently opposed to [X] and [Y] travelling to Japan to spend holidays with their father.
The relationship between siblings is potentially one of the most important of all human relationships. However, at this stage, the relationship between [X] and [Y] and their half sibling is in its nascent stages.
It is difficult to see how the relationship will develop in future given the great practical difficulties involved. However, in general terms, it would seem to me to be of great benefit to [X] and [Y] to have an opportunity to develop a relationship with [Z], who inevitably it would seem will have a very different cultural orientation to them.
I have not heard any specific evidence from other members of
Ms Vincent’s family. However, I accept that the children have close relations with their maternal grandparents and maternal aunt. I have no doubt that Ms Vincent will ensure that these relationships are sustained and that this will be to the benefit of [X] and [Y].
I have heard evidence from Mrs C Senior. I am satisfied that she is a loving and well motivated grandparent. As such, I have no doubt that the children will benefit if they are able to see their parental grandmother regularly.
I accept that children do better if they know where they fit in in a wider familial constellation. Children benefit from receiving nurture from people other than their parents. Grandparents, in particular, can bring different qualities to the care which they provide to their grandchildren.[17]
c) The willingness and ability of the parties to encourage a close and continuing relationship between the children and the other parent
[17] See Bright & Bright (1995) FLC 92-570 at 81,658
The legislation requires me to consider the extent to which both parties have fulfilled or fail to fulfil their responsibilities as parents [section 60CC(4)]. In this regard, the mother is critical of the father for choosing to live predominantly in Japan and, as such, restricting the time available to him to spend with [X] and [Y].
I can understand Ms Vincent’s criticism but consider it to be misplaced. For the past several years, both before and after the parties’ acrimonious separation, Mr Carr has chosen to follow his profession in Japan. Initially, this decision had the support of Ms Vincent.
Circumstances have now led to Mr Carr forming a new relationship based in Japan, which in turn led to the birth of his son [Z]. I can understand Ms Vincent’s resulting heartache. However, the fact remains that Mr Carr has significant family responsibilities in Japan.
As such, I do not think it is either reasonable or appropriate for this court to rank Mr Carr’s responsibilities to his family in Australia with those he holds towards his family in Japan. Both are important. If
Mr Carr’s personal circumstances were different, I have no doubt that he would want to spend more rather than less time with [X] and [Y] in future.
I accept that Mr Carr aspires to being closely involved in all major decisions to do with [X] and [Y]. To this end, he has committed himself to providing the children with a high standard of education. In addition, I do not think that it can be said that he is disinterested in issues to do with the children’s health. To the contrary, his purchase of an Epi-Pen for [X] indicates his commitment to the children’s physical wellbeing.
Above all, Mr Carr has committed himself to coming to Australia on six occasions each year to spend time with the children concerned. In my view this is a significant commitment indeed.
In the longer term, Mr McDonagh does not believe that this regime will be sustainable. This may be so but it does not demonstrate a lack of interest, by Mr Carr, in [X] and [Y]’s welfare. He is fundamentally interested in every aspect of their care and development.
One of the significant issues in this case is Ms Vincent’s obvious antipathy to Mr Carr as a result of the emotionally charged circumstances of the parties’ separation. I am at pains to indicate my sympathy for the mother’s feelings, but these circumstances cannot be allowed to condone the mother’s attempts to undermine the relationship between [X] and [Y] and their father.
I am satisfied that the mother has not supported the children communicating regularly with their father by telephone. In addition, she has been both actively and passively resistant to the children spending time with their father. This is poor parenting.
d) The likely effect on the children of any changes in their circumstances
As I have already pointed out, [X] and [Y] are habituated to their father living in Japan and regularly flying to Adelaide to spend intense periods of time with them. As such, the regime proposed by the father is not a radical departure for them. The major change is that, rather than the children spending time with their father in their home, they will be spending time with him in a holiday apartment.
I agree with Mr McDonagh and Ms Vincent that it would be preferable if Mr Carr was able to purchase permanent accommodation for himself in Adelaide, which would give the children the sense that they and their father have a secure base together in Adelaide. However, at the present time, that is not a realistic proposition for the father. At this stage, there is no significant evidence to indicate that the children are not adequately accommodating the current arrangements to spend time with their father.
e) The practical difficulties and expense of the children spending time and communicating with each of their parents
The practical considerations in this case are significant. Every two months or so, the father will be flying from Japan to Australia to see [X] and [Y]. He will be dependant on the vagaries of international travel to arrive at the time and place scheduled for this to occur. Inevitably there will be delays and pre-existing arrangements will have to be changed, sometimes at the last minute.
These exigencies will add to the already inflamed and angry relationship between the parties. There is no easy or obvious solution to these problems. The best interests of the children dictate that they should spend as much time as possible with their father. As a result, he and Ms Vincent will have to deal, as best they can, with the logistical issues which arise.
I can offer no solutions to these problems, other than those proposed by Mr Carr himself, which include him giving as much notice as possible and allowing his mother to collect [X] and [Y] in lieu of him. Otherwise, it would be wise if the parties took steps to repair their relationship, as best as is possible so that communications between them can contain some basic level of functionality and formality. In making this recommendation, I am well aware that this is easier said than done.
f) The capacity for the parties’ to provide for the children’s emotional and educational needs
I am satisfied that Mr Carr is well placed to provide for the children’s emotional and educational needs. I hold similar views in respect of
Ms Vincent, other than for her obvious antipathy for Mr Carr and her impaired facility to encourage the children’s relationship with their father.
Mr McDonagh is critical that Mr Carr lacks insight into the long term viability of his proposal to spend time with the children. Given the exceptional nature of the circumstances which prevail in this case, I think it would be imprudent of me to dismiss Mr McDonagh’s concerns.
However, it is difficult to know what more Mr Carr could do given the strength of his ties in Japan. Certainly, I think it would be much more emotionally detrimental to [X] and [Y], if Mr Carr withdrew from their lives. In his commitment to come to Australia, as often as he can,
Mr Carr has demonstrated a commitment to the children’s emotional wellbeing, in my view.
g) The children’s maturity, sex, lifestyle and background
h) Aboriginality
These are not relevant considerations in this case.
i) The attitude that each party has demonstrated to the responsibilities of being a parent
In my estimation, both parents aspire to fully discharge each and every responsibility incumbent in being a competent parent. In this sense, each is regarded to be as a good parent.
The major issue, which arises under this heading, is the unacceptably high level of conflict between the parties and how this is likely to cloud their decision making process in respect of how [X] and [Y]’s interests are best served. Again, there is no obvious solution to this issue, which is likely to remain problematic for the foreseeable future.
Communications between the parties are likely to be fraught with all manner of difficulties for the foreseeable future. In addition, there are likely to be many potential flashpoints between them in respect of ongoing financial issues. The endemic level of conflict between them has the potential to be highly detrimental to the emotional wellbeing of the children concerned.
Up to this stage, it seems to be the case that both children are travelling relatively well emotionally. This is Mr McDonagh’s view, which I accept. I am concerned that the children may become more vulnerable to the conflict between their parents, as they grow older.
Again, the solution to this issue is largely in the hands of the parties’ themselves. It is not a realistic solution to these problems to curtail the father’s time with the children or for the court to commit Mr Carr to a regime of time with the children, which he cannot sustain.
j) Any family violence
k) Any family violence order
I have already dealt with the issue of family violence in these reasons for judgment. There is no relevant family violence orders applicable to these proceedings.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
The parties parenting relationship with one another is poor. The logistical difficulties pertaining to the case are considerable. These are not good harbingers for the avoidance of further litigation between the parties.
These difficulties will remain whatever is the outcome in the case. In my view, the most important consideration for the court is how [X] and [Y] maintain a meaningful relationship with their father in these difficult circumstances.
Conclusions
In the interim reasons for judgment, I said as follows:
The parties agree that the presumption of equal shared parental responsibility should be applied in this case. Clearly, given the father’s work circumstances, it is impossible for the children to live with their parents on an equal time basis, which is the first consideration which follows from the application of the presumption. [section 65DAA(1)]
Accordingly, the next step for the court is to consider whether [X] and [Y] should spend substantial and significant periods of time with both their parents. Substantial and significant time is defined as time that enables a child to spend time with his or her parents on weekends and holidays; week days; special occasions; and above all time that allows a parent to be involved in the child concerned’s daily routine. [section 65DAA(3)]
In addition, pursuant to section 65DAA(4), the court is directed not to limit itself in terms of the matters to which it can have regard in determining whether the time a child spends with a parent amounts to substantial and significant time.
Accordingly, it seems clear to me that what is intended from the applicable legislation is that, in determining what is substantial and significant time, the court must look at the overall context of the parental relationship involved and the time which is available to allow that relationship to evolve and develop. One template of how time is to be allocated does not necessarily fit every family. The court is directed to individualise its approach in order to bring about a result which amounts to a substantial and significant time arrangement.
In addition, it also seems to me to be clear that it is intended, from the legislation concerned, that meaning, in parental relations, comes not only from the extent of time a parent spends with a child but also from its context.
Having considered all of the applicable section 60CC factors, particularly the benefit the children are likely to derive from having a meaningful relationship with their father, it seems to me that it would be in [X] and [Y]’s best interests for them to be able to spend as much time as possible with their father, when he is at home in Adelaide or otherwise visiting Australia.
Such an arrangement will enable the children to have a sense that their father is engaged in all aspects of their life. Potentially they will feel that he is involved with them both at school; at weekends; and during school holidays. From this level of engagement will come meaning for the two children concerned in respect of their relationship with their father.
Essentially, too a large degree, the outcome of the children spending substantial and significant time with their father must be tailored according to the time the father has available to him in Australia. From the mother’s perspective, this is selfish of the father, whom she perceives wants the best of both worlds, to her detriment. However, the paramount consideration is [Y] and [X]’s best interests, particularly the benefits to them of having a meaningful relationship with their father. [18]
[18] See Carr & Vincent at paras 80 to 87
I have no reason to revisit any of these comments. I accept that, in an ideal world, it would be preferable if Mr Carr came to Australia monthly and purchased permanent accommodation for himself in Adelaide.
However, this optimal arrangement is not open, given Mr Carr’s commitments in Japan. In lieu of this ideal arrangement, Mr Carr proposes regular visits to Adelaide, which will encompass a mixture of holiday and school time between him and the children. In my view, this will ensure that [X] and [Y] have a meaningful relationship with their father and will so serve their best interests.
A more potent threat to the children’s wellbeing is posed by the parties’ poor relationship with one another. There is no easy solution to this issue. Necessarily, the distance which the father must travel to Australia will create many complex logistical issues, in respect of which the parties, the mother in particular, have shown a difficulty in resolving.
In my view, it is not a solution to these difficulties to restrict the father’s time with the children. The solution is in the father giving as much notice as he can of the dates of his travel to Australia and the mother trying to do her best to accommodate those dates and prepare the children for them.
It is an unsatisfactory response, on the mother’s part, to invent difficulties to the children spending time with their father or to be resistant to those arrangements. In the past, prior to the parties’ separation, the mother was able to accommodate the father’s overseas working commitments and the children are accustomed to their father flying in from Japan to spend time with them.
It is clear from the applicable legislation that one of the responsibilities of being a parent is to foster and support the relationship between ones children and the other of their parents. As such, it is unacceptable for the mother to be either actively or passively resistant to the father’s proposed regime to spend time with the children concerned.
The mother may well see it as being fundamentally unfair to her that the father is able to fly into Australia on what she perceives as being an insufficiently frequent basis to spend time with [X] and [Y]. However, the children’s entitlement to a relationship with their father transcends the nature of the parties’ relationship with one another and the choices the father has made about where and how he will live in future. As such, the court must recognise the reality of the father’s work regime and it is the mother’s duty to attempt, as best she can, to accommodate it in the service of the children’s best interests.
Whatever orders are made in this case, I fear that the parties, again particularly the mother, will have difficulty accommodating the logistical problems, which will inevitably arise. It is impossible for the father to predict exactly when he will arrive in Adelaide and precisely when he must leave. The best solution to these practical difficulties is if the father gives as much notice of his details of travel as is possible. In this regard, a period of sixty days seems more than reasonable to me.
Other than this, the mother must attempt to be more flexible and reasonable in response to the unanticipated and sometimes irritating difficulties which will arise because Mr Carr will be flying into Adelaide to spend time with the children.
In my view, most of these difficulties can be ironed out if the parties commit themselves to having a rational and workman like parenting relationship with one another, based on what is best for [X] and [Y], particularly shielding them from the emotional consequences of their [Mr Carr and Ms Vincent’s] failed relationship. Again something easier said than done.
At the end of the day, the parties have the technical capacity to be able to communicate with one another instantaneously through a variety of electronic media, including mobile phones; text messages; emails; and conventional telephones. As such, it is unacceptable that their communications with one another constantly miscarry. The fault is in the parties themselves not in the technology.
That communications fail must stem from other factors. In my view, these factors can only derive from the mother’s unresolved animosity towards the father, arising from the circumstances of the parties’ separation. The mother, no matter how hard done by she feels, is not entitled to sabotage the children’s level of relationship with their father because of her antipathy towards him and because of her unresolved feelings.
I make these comments because I think the mother needs to do better. In my view, the arrangements proposed by the father will be workable if the mother commits herself to them. As part of the package of being a good parent, the mother is required to make such a commitment.
Just as adults have become habituated to instantaneous electronic communications, so to they have become the every day reality of children’s lives. The father proposes bi-weekly fixed times for him to be able to communicate with the children by telephone. The times proposed seem to me to be inherently reasonable ones.
I suspect that no time will ever be convenient to the mother, who is resentful of the father having the ability to be able to come into her and the children’s home, albeit in a disembodied form through the telephone. However, if an order is made for the father to have telephone communication with the children, it is the mother’s obligation to facilitate such communication.
The distance between Japan and Australia and the stilted and acrimonious relationship between the parties are factors which place great stresses on the children’s relationship with their father. In order to have the most meaningful relationship possible with their father, it is necessary for the children to feel that he is an active part of their lives, regardless of the fact that he is very often living and working in a separate hemisphere to them. This sense of paternal involvement in their lives will be fostered if father and children are able to converse together regularly.
The parties are well resourced financially. I would anticipate that the father will have access to and be adept at many forms of international communication including such things as Skype; video conferencing; and email. As time unfolds, I expect [X] and [Y] will also be able to use these media and father and children will be able to communicate together at times of their mutual convenience. This is as it should be. As such, it is the mother’s responsibility to foster these various forms of communication.
It is highly significant that when first [X] and then [Y] was born at the Royal Women’s Hospital in Brisbane each child was registered as having the hyphenated surname of “Carr-Vincent”. As a result, this is the name which appears on both children’s birth certificates and, as such, will be the name which each child will have to utilise for all official purposes.
The use of parental surnames, co-joined by a hyphen, is an increasingly common phenomenon, particularly where parents are not married or a mother has maintained her maiden name following marriage. The practice reflects the desire of parents to emphasise their children’s connection and identity with both parents. In addition, in the modern era, the inclusion of a maternal surname in a child’s name has been seen as emblematic of the liberation of women following the rise of the women’s movement in the 1970’s.
I have no reason to think anything other than that the parties in this case made a conscious decision as to the particular surname [X] and [Y] should bear and the choice of “Carr-Vincent” reflected their consensus at this time. I accept that this decision reflected their respective sensibilities at the time.
At this point, I see no reason to depart from this decision. In this day and age, many children, particularly those with separated parents, have such hyphenated names, which may not be strictly synonymous with those of each of their parents. This does not matter.
I do not accept that the mother’s rationale, based on what she asserts are considerations of practicality, is a reasonable one to support the use of the surname “Vincent” for the children in day to day settings. The use of this name would be contrary to the parties’ earlier mutual agreement and would not serve to emphasise the children’s connection with their father and the reality of what is entered on their birth certificate.
I am concerned that the mother has an ulterior motive for wishing to use the name Vincent for [X] and [Y], which is unrelated to the children’s overall best interests. It is difficult to see that the children will be embarrassed by the utilisation of the name on their birth certificate or that the use of “Carr-Vincent” will be confusing to anyone, particularly the authorities at the children’s school.
It seems an unavoidable conclusion that the authorities at [S] College are used to dealing with Mr Carr, who is the person who has been primarily responsible for the children’s school fees up to this stage. For these reasons, I propose making the injunction which the father seeks, in respect of the children’s surnames.
These proceedings have been hard fought. The parties’ poor relationship with one another has necessitated a final hearing. The irony of this situation is that, ostensibly at least, the mother has agreed on nearly all of the final orders, which the father has sought.
At an earlier stage, the parties agreed to commission Mr McDonagh to prepare a family assessment report. In all these circumstances, it is just and appropriate that the parties should each contribute equally towards the costs of Mr McDonagh’s report notwithstanding the disparity in their current financial positions.
I am satisfied that the orders which the father seeks will best serve [X] and [Y]’s interests. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and seventy-four (274) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 19 June 2009
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