Carrow and Burke
[2009] FMCAfam 603
•25 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARROW & BURKE | [2009] FMCAfam 603 |
| FAMILY LAW – Parenting – relocation – freedom of movement – weight to be given to evidence of Family Consultant – nature of children’s relationship with parents and other significant persons – parent’s willingness and ability to facilitate and encourage a relationship with children – likely effect of changes on the children – practical difficulty and expense – parental capacity, attitudes to the children and to responsibilities of parenthood – communication between the parents – order least likely to lead to further proceedings – equal or substantial and significant time. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| A & A (Relocation Approach) 2000 FLC 93-035 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4. |
| Applicant: | MS CARROW |
| Respondent: | MR BURKE |
| File Number: | SYC 1187 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 12 & 13 May 2009 |
| Date of Last Submission: | 13 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Newnhams Solicitors |
ORDERS
That the solicitors for the applicant and the respondent provide to my associate within 21 days an agreed document which represents the current contact arrangements for [X] born [in] 2001 and [Y] born [in] 2005.
The parties have leave to re-list this matter before Federal Magistrate Altobelli on 21 days notice as regards any dispute over the formulation of the agreed document in order 1.
IT IS NOTED that publication of this judgment under the pseudonym Carrow & Burke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1187 of 2008
| MS CARROW |
Applicant
And
| MR BURKE |
Respondent
REASONS FOR JUDGMENT
Introduction
This application relates to two children [X], who is seven years old, and his sister [Y], four years old. Their mother is the applicant. She is 41 years old, currently lives in Sydney but proposes to relocate with the children to [B] in Northern New South Wales. The respondent father is 44 years old. He lives in Sydney and he opposes the children relocating to [B]. The broad issue for the court to determine is which parenting arrangement is in the best interests of these children. Whilst this application is commonly described as a relocation application, in reality it is simply an application for parenting orders under Part VII of the Family Law Act 1975 in which one of the proposals that the court must consider is one which involves the mother and the children relocating out of Sydney.
Background
When these proceedings commenced before me the mother was at the time [occupation omitted] for a large corporation. During the course of these proceedings she ceased her employment, became pregnant and currently expects to give birth to her new child late in June 2009. The baby’s father is Mr N. He is [in the agricultural industry] in [B]. He has known the mother for many years but their relationship commenced in February 2008. They now consider themselves a committed couple.
The respondent father is [in the information technology industry]. The mother and father commenced cohabitation in December 2000, 8 years ago. They finally separated in October 2007 but between 2000 and 2007 they separated and reconciled twice, before the final separation. The two children, [X] and [Y], were born during that period.
From both accounts of the evidence the separation was difficult, particularly for the father. However, even on the mother’s evidence his health improved by early 2008 and he commenced spending regular time with the children initially on a supervised, but shortly thereafter on an unsupervised basis. On 26 February 2008 there was an unfortunate incident outside the mother’s home involving an alleged assault. This event does not reflect well on the father, and to a lesser extent even the mother. The children experienced, and were clearly distressed by the fracas that occurred involving the parents, the maternal grandfather, and a friend of the father. This event was indeed regrettable, but it is the only event of family violence involving these parents and all the evidence indicates that it is clearly atypical and that the behaviour manifested was out of character for all the protagonists in the incident. The incident was the classic case of separation instigated violence as defined by Kelly and Johnson in “Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Intervention”, (2008) 46 Family Court Review at 487. By the time of the final hearing this incident did not receive much attention and I think quite properly so. Family violence is not a substantive issue in this case and I will no longer refer to it in these reasons.
The proceedings commenced before me in March 2008. The parents entered into the first of two consent orders on 14 March 2008. On
28 March 2008 I made interim parenting orders following a contested hearing the effect of which was that the children spend time with their father each alternate weekend from Friday afternoon until Monday morning and each Wednesday overnight – in other words 5 nights out of 14. The order also provided for school holidays and special occasions. On 22 September 2008 the parties varied those orders by consent, but retained the 5 nights out of 14 arrangement.
Between the orders made on 28 March 2008 and 22 September 2008 I find that a number of important things occurred that were not communicated to the father, to the Family Consultant who was at that time preparing the first of two Family Reports, or to the court. For reasons that I will set out below I find that in June or July 2008 the mother and Mr N had decided to enter into a committed relationship in which they would try to start a family. The decision was made for the mother to cease using contraception. Mr N invited her to come and live with him in [B], bringing [Y] and [X]. The significance of this is that before the mother filed her amended application on 28 August 2008 there was no proposal before the court for her to relocate with the children to [B]. Up until then it was a dispute between the parents in Sydney. From this point on, of course, the case became a significantly different one for both parents. On 28 March 2008 when I made interim parenting orders, I also set the matter down for final hearing on
22 September 2008. When the matter came before me for mention on 23 July 2008, following the release of the first Family Report, one of the orders I made was that the parents have liberty to apply to re-list the matter in respect of having the hearing dates adjourned in order for the parties to undertake a parenting after separation course. This was one of the recommendations made in the first Family Report. On
5 September 2008, following the filing of the amended application by the mother, I did in fact vacate the original hearing dates though I allowed time for a further interim application. The matter was set down for final hearing on 11 May 2009.
There was, therefore, certainly a period of several months when the mother was aware of relevant and important information involving the change of her relationship with Mr N, their intention to start a family, and the possible relocation to [B], but which she failed to disclose to the Family Consultant, the father or to the court before 18 August 2008.
In any event by August 2008 the mother introduced Mr N to the children. She ceased work in October 2008. For the most part the interim parenting arrangements appear to have worked quite well.
The mother’s proposal at the final hearing is contained in exhibit A1, the minute of order sought by her. It is a carefully considered, detailed proposal based on 2 scenarios. On the first scenario she would be permitted to relocate the children’s residence to the [Y] Shire, and on the second scenario she would not be permitted to so relocate the children. If relocation were permitted then apart from some transitional provisions the children would live with her, but live with the father one weekend per calendar month in Sydney from Friday afternoon until Sunday afternoon, and one weekend per calendar month in the [Y] area from Friday afternoon until Sunday afternoon. Her proposal involved options for extension to Monday afternoon in the event of a public holiday and of course covered half of the school holidays and special days. The mother proposed that during contact in Sydney she would deliver and collect the children to the father but, of course, [Y] area contact would involve the father travelling to that location. In the event that relocation was not permitted the mother proposed that the children live with her, but live with the father each alternate weekend from after school on Thursday until the commencement of school the following Monday, with extension to Tuesday if Monday were a public holiday. She also proposed half school holiday and special days.
The father’s proposal was not, in fact, clearly articulated until his counsel’s closing submissions. His response which was filed on
18 March 2008 appears to have been prepared by the father himself, at a time when he was representing himself in these proceedings. It was not amended during the course of the proceeding and he was, quite appropriately, criticised in cross-examination for not doing so. Nonetheless his counsel articulated that the father’s primary position was that if the mother chose to move to [B] his preference was to have equal time with the children with the mother returning to Sydney each alternate week. In the alternative he sought an order that the relocation of the children not be permitted and that the children reside primarily with him, but spend time with their mother, or alternatively that there be an equal time arrangement, or that in the alternate that the existing arrangement by maintained. I must say that I would have been assisted by a clearly drafted minute of order setting our precisely the orders sought by the father. I acknowledge that his affidavit does set out his proposal in some detail, but perhaps this is not the only place for it to be articulated. For present purposes I regard myself as having a sufficient understanding of the father’s proposals to be able to deal with the matter.
By way of introductory comments it needs to be said that relocation cases are always difficult to decide. This one is no different. The mother’s desire to relocate is completely understandable, as is the father’s opposition to it. There is no doubt that both the mother and the father are good people in the sense that they very much love and care for their children, as they once loved and cared for each other. Their own life circumstances have changed and one of the issues before the court is the extent to which the life circumstances of the children should be permitted to change correspondingly. If one considers the emotional maelstrom of separation, and the pressure that litigation about their children brings on parents, there is actually little to separate these parents in terms of how they have behaved, their parenting capacity, and what they have to offer their children. This was a finely balanced case that was robustly contested at the final hearing by two very experienced Sydney counsel. As I said to the parties at the conclusion of the hearing I believe that everything that could possibly have been said on behalf of each parent was in fact said. The fact that I now need to make some very fine distinctions about behaviour, conduct, parenting capacity and other attributes of the parents does not detract from my earlier statement that they are both fundamentally good people who are good parents and who have a tremendous amount to offer to their children. Indeed, in many respects, compared to so many parents who come before the Family Law Courts, [Y] and [X] are very fortunate indeed to have parents like their mother and father. Nonetheless in determining this case I do need to look at the evidence very carefully and make judgments about each of these parents.
The issues
Obviously I need to determine which order is in the best interests of these children having regard to competing proposals. I am not bound by the proposals advanced by either of the parents. There are the obvious scenarios that have been postulated by both the mother and father but there is also the scenario that needs to be explored about whether the father can relocate to the [Y] area.
There are a number of matters which are clearly not issues in this case and which I therefore exclude from my consideration. As indicated in the introduction I do not believe there are any issues of family violence in this case. There are no issues about protecting the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. There are no issues about the children having a meaningful relationship with both parents and specifically, and perhaps surprisingly, the father’s counsel did not submit that an acceptance of the mother’s proposal would result in the children’s meaningful relationship with their father being undermined or affected. There is also no issue in this case about any views expressed by either of the children. That is not to say that there is no evidence before me from either of the parents and the Family Consultant from which I might be asked to draw an inference or possibly conclude about children’s views. I acknowledge the existence of that evidence but I place no weight on it whatsoever. Even if [X] has said things he is only 7 years old. It is one of the sad facts in this case that both parents have, at different times, and to differing degrees, involved the children in the breakdown of their relationship and the subsequent proceedings and matters before the court. Because of that fact, anything that [X] might have said is unreliable. Accordingly, I exclude from my consideration any evidence about views expressed by [X] or [Y].
The competing proposals need to be considered by reference to the remaining relevant considerations set out in s.60CC(3). I believe, therefore, that the relevant issues for consideration, when expressed as questions, are in the following terms:-
a)What is the nature of the relationship of the children with each of their parents and other significant persons and how might that relationship be affected by the competing proposals?
b)Having regard to the competing proposals, are there issues about the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent?
c)Having regard to the competing proposals, what is the likely effect of any changes in the children’s circumstances including the likely effect of separation from a parent or any other significant person for the child?
d)Do any of the proposals raise issues of practical difficulty and expense of the child spending time with and communicating with a parent such that this will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis?
e)Are there any issues about the capacity of each of the parents to provide for the needs of their children, or are there any attitudes to the children and to the responsibilities of parenthood that have been demonstrated by each of the child’s parents?
f)If I decide that it is appropriate to apply the presumption of equal shared parental responsibility then is either equal time, or substantial and significant time, in the best interests of the children and reasonably practicable?
Evidence was given in this case by the parents, the mother’s partner
Mr N, and the Family Consultant. There was a direct attack on the evidence given by the Family Consultant in the second Family Report, as well as on the oral evidence she gave at the hearing. Accordingly the first issue I will need to determine is what weight should be given to the evidence of the Family Consultant?
The applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomenon in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Relocation
In my previous decisions of J & R [2007] FMCAfam 181, H & H [2007] FMCAfam 27, and M & K [2007] FMCAfam 26 I set out my understanding of the effect of the 2006 amendments to the Family Law Act on the law relating to relocation. There have been a number of later Full Court cases, and I discuss those below.
A number of recent Full Court decisions on relocation establish the following principles:
a)If the presumption of equal shared parental responsibility applies, even in a relocation case the court must consider whether equal time or substantial and significant time is in the child’s best interests and is reasonably practicable: Morgan & Miles [2007] FamCA 1230 at paragraph 54, citing Goode & Goode (2006) FLC 93-286 and Newlands & Newlands [2007] FamCA 168; Taylor & Barker [2007] FamCA 1246 at paragraph 58; McCall & Clark [2009] FamCAFC 92 at paragraphs 69 and 74.
b)
There is no “right” to relocate, in the sense that there is nothing in the legislation which provides that a parent who has an existing order which provides that the child spend
50 percent or more of their time with that parent has a unilateral right to move the child: Morgan & Miles[5].
c)For the time being, the Family Law Act does not treat relocation cases as a special category of parenting orders. The court is deciding with whom a child should live and spend time: Morgan & Miles[6].
d)In a relocation case there are no presumptions either in favour or against relocation: Morgan & Miles: paragraph 74.
[5] [2007] FamCA 1230 at 55
[6] Ibid at 72
The impact of the most recent amendments to the Act in relocation cases has been described in the following terms in Morgan & Miles[7] at paragraphs 79-81:
[7] ibid
79. In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
·that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
·that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
·that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
·the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, [ remain valid].
81. What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
The distance involved in a proposed relocation does not necessarily involve different considerations. The Full Court in Morgan & Miles[8] described it in these terms at paragraphs 91-92:
91. The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
[8] Ibid
In dealing with a relocation case, the court must consider the proposal for relocation as one of the proposals for a child’s future living arrangements. It is also relevant to consider other proposals and alternatives including, for example, that the parent opposing the relocation in fact relocate: U & U (2002) 211 CLR 238; (2002) FLC 93-112; Bolitho & Cohen (2005) FLC 93-224; Taylor & Barker [2007] FamCA 1246 at paragraph 53.
The obligation to consider equal time or substantial and significant time in s.65DAA does not require the court to consider reasonable practicality if it finds that a proposal would not be in the child’s best interests (Taylor & Barker[9] ).
[9] [2007] FamCA 1246 at paragraph 74
The obligation to “consider” equal time or substantial and significant time in the context of a relocation case clearly requires the weighing up of the advantages and disadvantages of a parent’s proposal to relocate against the advantages and disadvantages of the maintenance of the status quo: Taylor & Barker[10]. Each of the proposals needs to be considered through the framework of s.65DAA and its core concepts of “equal time”, “substantial and significant time”, “best interests” and “reasonable practicability”. In this regards the Full Court in Taylor & Barker[11] noted at paragraphs 82-83:
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[10] ibid at 75
[11] Ibid
But these sections do not mandate the making of orders in one or other of the terms, only that genuine consideration is given to them. The ultimate question is one of best interests: Goldrick & Goldrick [2007] FamCA 1260 at paragraph 43.
In some cases, the happiness or unhappiness of a parent proposing relocation may be an important consideration. Whilst clear evidence about this is preferable, sometimes happiness is a state of mind to be inferred from the evidence eg based on reasonable inferences. See Taylor & Barker[12]. However, the Act does not prescribe parental happiness, as such, as a factor in determining the best interests of a child: see the dissenting judgment of Faulks DCJ at paragraph 127. In any event, if parental happiness is a relevant consideration, it must surely be that the happiness of both parents is relevant.
[12] Ibid at 106 and 109
In some relocation cases, s.60CC(4) may be relevant. However the focus is always on a person’s capacity to parent (Goldrick & Goldrick[13]).
Freedom of movement?[14]
[13] [2007] FamCA 1246 at paragraphs 40-41
[14] See Parkinson P, ‘Freedom of movement in an era of shared parenting: the differences in judicial approaches to relocation’, (2008) 36(2) Federal Law Review 145
In his closing submissions, counsel for the mother submitted that I needed to take into account the mother’s right to freedom of movement. He acknowledged that this was not a consideration expressly articulated under s.60CC(2) or (3) but suggested that consideration was mandated by High Court authority and that, in any event, it was relevant under s.60CC(3)(m) “any other fact or circumstance that the court thinks is relevant”. He submitted that the High Court authority in question was U & U (2002) 211 CLR 238. That case was, however, an international relocation to which the constitutional guarantee of freedom of movement set out in s.92 of the Constitution had no application. Nonetheless there are relevant comments made by Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) at 262:
…whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent…
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
It is interesting to note that their Honours refer to a right of mobility of a parent, rather than freedom of movement, because the context did not involve s.92 of the Constitution. Perhaps more relevantly, the court clearly circumscribes this right of freedom of mobility by reference not just to statutory considerations (“the expressed paramount considerations”) but also by reference to parental obligations (“obligations both legal and moral”).
The notion of freedom of movement was considered by the High Court in AMS v AIF (1999) 199 CLR 160 in the context of a mother’s proposed relocation from Perth to Darwin. It was specifically argued in the case that s.92 of the Constitution created a right confirming movement across State borders.
Callinan J stated at page 248:
The principle which the authorities state is that movement by people between States should be able to take place without regard to State borders. Various formulations have been adopted. Satisfaction of the guarantee of freedom does not require that every form of movement or intercourse must be left unrestricted or unregulated. The freedom of which s.92 speaks must be balanced ‘against… other interests in an ordered society which must be recognized by the law’. A determination of what (if any) burden might be validly imposed on intercourse or movement depends on the form and circumstances of the intercourse or movement involved.
Whilst Callinan J referred to the need to ‘balance’ s.92 interests against other social interests, what the High Court in fact did in that case was to subordinate freedom of movement to the needs and interests of children. Kirby J at p179, with whom Gleeson CJ, McHugh and Gummow JJ agreed at p216, was clear that a restraint upon freedom of movement that was proportionate to the achievement of the object of the law in question – in this case protecting the child’s best interest – was not in violation of s.92.
Thus both High Court cases acknowledge that any right of freedom of movement is subordinated to what is in the best interests of a child. The Full Court in A & A (Relocation Approach) 2000 FLC 93-035 recognised this at p.87552.
The reverse proposition i.e. that the best interests of a child must be subordinated to a parent’s right of freedom of movement, would involve a reading down of Part VII of the Act to conform with the freedom of movement referred to in the Constitution. The only possible support for this proposition is the minority judgment of Gaudron J in AMS v AIF. Her Honour said at pp.193 and 194:
A law which incidentally and non-discriminately affects interstate intercourse in the course of regulating some general activity…will not contravene s.92 if its incidental effect on interstate intercourse does not go beyond what is necessary or appropriate and adapted for the preservation of an ordered society or the protection or vindication of the legitimate claims of individuals in such a society.
…
There is a difference between what is necessary to protect the welfare of a child or, which is the same thing, to avert a risk of harm to his or her wellbeing, and an order designed to achieve what is thought to be in his or her best interests. An order necessary to protect his or her welfare would not infringe s.92, notwithstanding that it incidentally affected interstate intercourse. On the other hand, an order designed to achieve what is thought to be in his or her best interests cannot, in any sense, be described as necessary.
This is a view that is, perhaps, ahead of its time. It does not, however, represent the current law.
Boland J sitting as the Full Court in Morgan & Miles (2007) FLC 93-343 referred at p.81870 to the need to weigh and balance the child’s best interest against the right of the proposed relocating parent’s freedom of movement. However I don’t think her Honour intended that in balancing competing rights and considerations they are to weigh in the balance equally. This is clearly inconsistent with the High Court cases referred to above. I adhere to the comments I made in M & K [2007] FMCAfam 26 at paragraph 56:
56. It is possible that in some cases the notion of freedom of movement on the one hand, and the paramount considerations of the child’s best interest on the other hand, have been put in the metaphorical balance which occurs as judgment is being exercised in these very difficult cases. If that is the case there must be serious concern about putting such different notions “in the balance.” It is more akin to comparing apples to oranges, than apples to apples. Indeed, there is no comparison because the High Court and the Full Court have repeatedly stated that the notion of freedom of movement defers to the paramount consideration of the best interests of a child. There is a place for considering freedom of movement in the difficult exercise of judgment that occurs in relocation cases. However, the consideration is not a weighty one. Far more weight must be attributed to the expressly articulated considerations referred to in s.60CC, than to the unarticulated interest of the parent’s’ freedom of mobility that has somehow crept into the Part VII exercise of judgment. If the legislature had intended to somehow elevate parental mobility to an equivalent status with the existing considerations in s.60CC it could have done so. Clearly the post 1 July 2006 amendments do not. Some may regard this as harsh and disappointing. Some might say that it disregards the clear statistics indicating that the Australian population as a highly mobile one.[15] Nonetheless, the Family Law Act is silent about a parent’s freedom of movement. Indeed, arguably the Act imposes a fetter that did not exist before 1 July 2006 by saying that shared parental responsibility carries with it the obligation to make decisions jointly, and to consult and make a genuine effort to come to a joint decision, in relation to major long-term issues: s.65DAC. The definition of major long-term issues in s.4(1) includes issues about changing the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
[15] See, for example, “Discussion Paper on Relocation” (Family Law Council, February 2006) at paragraphs 1.1-1.3 and the April 2006 HILDA survey “Families, Incomes and Jobs: A statistical report of the HILDA survey” which is discussed briefly in the Editorial in (2006) 20 AJFL 113-114.
I therefore accept counsel’s submission that I must take into account the mother’s right to freedom of movement such as is recognized by the authorities, and subject to the limitations noted there. But this is one of many considerations only, and it carries no particular weight. In a finely balanced relocation case it is possible, however, that a parent’s right of freedom of movement might be determinative of the outcome
Weight to be given to the evidence of the Family Consultant
Evidence of the Family Consultant
The Family Consultant prepared two reports in this matter, released on 18 July 2008 and 8 May 2009. The Family Consultant also gave evidence in person on 12 May 2009. Counsel for the respondent mother was very critical of the Family Consultant’s oral evidence, and of the later report. He also noted that the later report was replete with errors, some of which were minor, some fundamental. In particular counsel submitted that the Family Consultant had simply misunderstood the mother’s proposals for contact if she relocated to [B], and thus her recommendations were dangerously undermined. In view of the robust criticism of the evidence prepared or given by the Family Consultant it is important to consider her evidence in detail.
The first report
The first report was released 18 July 2008 and became exhibit 7 in the case. It was prepared on the basis of interviews and observations conducted on 16 June 2008, and telephone interviews on 14 July 2008. In addition the consultant had read what appears to be most of the material filed by the parents and their witnesses by that date. There is little criticism that is directed to this report by either parent.
The key observations of the Consultant are found at paragraphs 24, 25 and 27:
24. The children were observed interacting with their father and they played together and communicated with him happily and he interacted with them both in an age appropriate manner. The children clearly enjoyed their interaction with their father.
Mr Burke was able to cater to the needs of both children despite their age difference.
25. When [X] and [Y] were observed with their mother she also interacted with them in an age appropriate way and was also able to cater to their individual needs. They obviously enjoyed being with her and related with her in a warm and relaxed way.
…
27. [X] presented as a child who is very troubled and burdened by his parent’s conflict and clearly loves both parents and wants the love and approval of them both. However, as he is clearly aware of the conflict between his mother and his father this places him in a very difficult position and it appears that he presents quite differently to each parent as a way to deal with this dilemma.
The Family Consultant’s evaluation commences at paragraph 28:
28. [X] and [Y] have close attachments to both their mother and their father. It is clear that both Ms Carrow and Mr Burke love [X] and [Y] dearly and want to provide the best they can for them and they also appear to share a similar perception of their children, especially [Y]. It is also clear, however that both children, and especially [X], have been exposed to the parental conflict including at least one incident, which involved physical aggression. Such exposure to even one such distressing event is likely to have negatively impacted on the children. Any impact is likely to have been further compounded by the parent’s failure to be able to communicate in any reasonable way since this event. If this continues it is likely to have further negative consequences for the children.
In paragraphs 29 and 30 concerns are expressed about the father involving the child [X] in the proceedings. It is for this reason that I intend to place no weight on whatever either parent or the Family Consultant reports or gives evidence about insofar as [X]’s views are concerned. At paragraph 34 concerns are expressed about the mother’s inability to communicate with the father.
Paragraphs 35 and 36 are significant in that both parents seem to have attempted to implement these recommendations, in some way, by the time of the final hearing.
35. Given the ages of the children and the difficulty in communication between the parents, a shared care arrangement (that is the children spending at least five nights with each parent) is difficult to recommend at the moment, unless the parent can demonstrate a strong commitment to improving their communication. It is possible that if the parents were to attend a “Parenting After Separation” program they may be assisted in establishing a positive co-parenting relationship. Until they are able to demonstrate such a commitment it would be preferable that the children lived predominantly in one home and spent alternate weekends and one night in the alternate week with the other parent.
36. Though Mr Burke is strongly committed to providing the best for his children, it is clear that he has involved the children in the parental conflict and it appears that he has had difficulty in separating his own needs from those of his children. Counselling may assist him to do this. For this reason it would be preferable for the children if they were spend the majority of their time with their mother.
The evidence indicates that both parents did attend a parenting after separation course. Even though the father did not attend the counselling referred to above, it was a significant part of his case that his participation in the parenting after separation program very much changed his communication with the mother, and his relationship with the children.
The Consultant’s final recommendations are contained at paragraphs 38-45:
38. It is recommended that the parents continue to share equal parental responsibility.
39. It is recommended that the children live with their mother.
40. It is recommended that the children spend each alternate weekend with their father from the close of school or childcare on Friday afternoon until the commencement of school or child care on Monday morning.
41. It is recommended that, if the parents are not able to demonstrate a commitment to improving their co-parenting relationship, the children spend one night in the alternate week with their father.
42. It is recommended that, if the parents are able to demonstrate a commitment to improving their co-parenting relationship, the children spend time with their father from the close of school or childcare on Monday afternoon until the commencement of school or childcare on Tuesday morning during the week preceding the weekend that they spend with their father and that they spend time with their father from after school or childcare on Thursday afternoon until the commencement of school on Friday morning in the week preceding the weekend that they live with their mother.
43. It is recommended that the children spend half the school holidays with each parent.
44. It is recommended that, until [Y] attends school, the time spent with each parent during the Christmas school holidays be organised on a “week about” basis.
45. It is recommended that the parents attend a Parenting after Separation course.
At the time this report was prepared, pursuant to interim parenting orders made at a contested hearing on 28 March 2008 the children were spending time with the father each alternate weekend from Friday afternoon to Monday morning, and each Wednesday overnight and half the school holidays. Putting aside school holidays, the father was having five nights out of fourteen. Recommendations 40-41 need to be understood in this context. On 22 September 2008 (i.e. well after the report was released) the parents agreed to vary this arrangement so that it became each alternate Thursday afternoon to Monday morning, and overnight Thursday in the other week, i.e. retaining five nights out of fourteen.
As it becomes relevant shortly, it should be noted that at paragraph 6 of the first report the Consultant records:
6. Ms Carrow continues to live in [suburb omitted] in the home in which she and Mr Burke had lived together. She has not re-partnered, although she advised me that she has recently entered into a relationship. Mr Burke lives in [suburb omitted] and has not re-partnered. The parents’ homes are a short distance from each other and it would take approximately ten minutes to drive between the two homes. Both parents are employed and although both parents, especially Ms Carrow, appear to have demanding jobs, they both indicated that they are able to work flexible hours in order to care for their children
Second report
The second report was released on 8 May 2009 and became exhibit 2 in this case. Interviews and observations were conducted on 4 April 2009 and it appears as if the further material filed by the parties was considered, save that there is an issue about the Amended Application of the mother filed 28 August 2008 to which I will refer in due course.
I propose to deal with each of the concerns raised in the mother’s case about aspects of this report.
In her evidence in chief the mother contests the accuracy of the following statement in the last sentence of paragraph 3 of the report:
Ms Carrow did not disclose the nature of this relationship to me when she was interviewed for the previous Family Report in this matter.
The reference to the relationship is to her relationship with Mr N. The mother gave evidence that she told the Consultant that her relationship commenced February 2008 but that Mr N had not been introduced to the children. She asserts that the Consultant told her that as Mr N had not been introduced to the children there was no need to include him in the report.
The Consultant gave evidence that the mother did not tell her the name of Mr N, but mentioned a person who was not significant in her life or the children’s lives. It was a relationship of only four months standing so the Consultant did not consider the mother to have re-partnered, hence the comment at paragraph 6 of the first report.
The Consultant was then challenged about paragraph 17 of the report:
Ms Carrow told me that she did not advise me of this relationship when she was interviewed for the previous Family Report because Mr N had not, at that time, met the children.
The criticism was that the relationship was in fact disclosed during the first interview and therefore it was wrong to say that the mother had not disclosed the relationship. The Family Consultant conceded that she could have been clearer in distinguishing between “relationship” and “re-partnering” but nonetheless maintained that the mother had not told her of the nature of the relationship with Mr N.
It is informative now to compare the evidence the mother gave in cross-examination about what she told the Family Consultant prior to the release of the first report. She agreed that she did not tell the Consultant that she had ceased taking contraceptives, was hoping to start a family with Mr N, and that she was contemplating relocation to [B] with Mr N. Apart from the evidence she gave in re-examination that she decided to try to fall pregnant in August 2008, all of her evidence was consistent with her knowing about wanting to fall pregnant in June or July 2008, and that she came off contraception at that time. In cross examination the wife was prepared to concede that the decision to go off contraception was made either about the time the report was being prepared or afterwards.
The cross examination of Mr N provides further evidence. He agreed that it was in June or July 2008 that he and the mother had formed a commitment to each other, and joined in the plan for her to become pregnant with his child. He also stated that he asked her to move in with him in [B] in June or July 2008.
The last interview between the mother and the Family Consultant in connection with the preparation of the first report was 14 July 2008. In view of the mother’s own evidence, and that of Mr N, I find it very difficult to accept that on 14 July 2008 she did not know about her desire to start a family, the commitment in her relationship to Mr N, and even the invitation to relocate to [B] with him. It is clear she did not disclose these matters to the Family Consultant and I simply cannot accept that if these matters were disclosed they would not have been recorded.
The criticism of the Consultant in this regard was ill-founded. In this regard I prefer the evidence of the Consultant to that of the mother. I accept what the Consultant says in the last sentence of paragraph 3 of the second report. Likewise I accept paragraph 17 of the report.
The Family Consultant was also robustly criticized for misconstruing the mother’s proposal for contact with the children at paragraph 19 of the report where she said in sentence two:
She said that they could see their father at least once a month and according to Ms Carrow, it would take about two hours for the children to travel to Sydney by air.
The mother’s proposal is in fact that the children have contact with their father twice a month, once in [B], and once in Sydney. In cross examination the Consultant agreed that this was, in fact, the mother’s proposal. When reminded that the sentence in paragraph 19 only referred to once a month in Sydney the Consultant stated that the mother also proposed once a month in [B]. She agreed, however, that the report itself does not acknowledge this except to the extent that paragraph 19 refers to “at least once a month”. In any event contact in [B] depended on the father’s willingness which, she later stated in cross examination, was rendered more difficult by the father’s contact with his other daughter [Z]. It was put to the Consultant that she had misconstrued the mother’s proposal. The Consultant rebutted this firmly stating that she was aware it was twice a month and that she recalled reading this in the mother’s Amended Application. The Consultant was then directed to paragraph 40 which states:
It is clear [X] would miss his father greatly if he does not continue to spend time with him on a frequent and ongoing basis. His mother’s proposal that he spend time with his father once every four weeks and in school holidays seems to lack an appreciation of how important his father is in his life.
She conceded that it looked like she had misconstrued the mother’s proposal, and that it even might seem that way, but she insisted that it was always her understanding that the contact proposal was once per fortnight.
In cross examination the mother asserted that she did not tell the Consultant that it would take about two hours for the children to travel by air to Sydney in paragraph 19. This was not actually put to the consultant but at page 13 of the Consultant’s notes (which were in evidence as exhibit A3) there is a clear reference to two hours thus making it probable that she did in fact say this. In any event in the mother’s cross examination she agreed that it could take at least two hours to travel to Sydney by air, including time getting to and from the airport.
The consultant was cross examined about paragraph 20 of the report:
Ms Carrow suggested that living in the [B] area may not be a permanent arrangement and said that as the children grow older they may need to attend school in Sydney. She indicated that she may return to live in Sydney for this purpose or alternatively that the children could attend boarding school.
It was suggested to the Consultant that the mother never said this. Indeed it was put to her that the notes do not refer to the possibility of a return to Sydney for education. Whilst the consultant graciously accepted that if counsel could not find reference to it in the notes it was not there, the reality is that at page 15 of the notes it clearly states: “As they get older private school boarding school” thus making it far more probable than not that paragraph 20 of the report is an accurate record of what was stated by the mother.
The Consultant was cross examined about paragraph 29 where, referring to Mr N, the Consultant reports that he told her “that he and his wife had separated not long before he commenced his relationship” with the mother. When it was put to her that it was in fact 2006 when Mr N separated, a matter in fact recorded in her notes, the consultant acknowledged her mistake, as was entirely appropriate. This is not a significant matter.
In that same paragraph the consultant noted that whilst Mr N referred to “Plan B” i.e. an alternate plan if relocation were not permitted, he did not expand on what he meant by this. She agreed that she did not ask him to expand on this. In Mr N’s evidence in chief by leave he said that he did not know what Plan B was either at the time he made the statement to the consultant, or even now. In those circumstances any criticism of the Family Consultant seems trivial.
The Family Consultant was challenged about the use of the word “wealthy” in paragraph 34 of the report, but there is a clear note of this at page 26 of the notes. I accept her evidence in this regard.
The mother’s counsel then took the Family Consultant through a number of typographical and other minor errors in the report.
Weight to be given to the second Family Report
Counsel submitted that, in effect, very little weight ought to be given to the second report, and that its recommendations were dangerously undermined. Having regard to the matters set out at length above, this overstates the position. For the most part I have found that where the evidence of the mother and the Family Consultant conflicts, the evidence of the latter is to be preferred. Counsel for the mother submits that, even putting aside these other issues, the consultant has misconstrued the mother’s proposal. I don’t agree. I am satisfied from the consultant’s oral evidence, including her cross examination, that she did in fact understand the mother’s proposal even though this understanding was poorly expressed in the report itself. I do not agree that a series of minor mistakes including wrong spelling, dates, names etc undermines the value of the report. It probably reflects inadequate proof-reading and the preparation of a report under pressure, but it is not a report that is fundamentally flawed. Counsel for the mother is undoubtedly correct in submitting that a Family Consultant is not a protected species, they are experts appearing before the court, and thus fully accountable for their evidence. They are nonetheless human beings, just like counsel and the judiciary, who work under enormous pressure and thus sometimes deliver a product that is less than optimal. In form the second Family Report was less than optimal. And yet in substance I find that it withstands the critical scrutiny to which it was subjected by counsel for the mother during a withering multi-pronged attack on it. Its methodology is sound.
Content of the second report
The report accurately records the changes in parenting arrangements since the first report; and correctly identifies the issues.
In relation to her interview with the father, the consultant records:
7. Mr Burke told me that he does not want his children to move to the North Coast of New South Wales. He believes that they should not relocate for a number of reasons including that: they would not be able to spend enough time with him to sustain their relationship with him; he would not be able to be involved in their everyday activities; they would be upset if they did not see him as much as do currently, and, they would not be able to spend regular time with their sister [Z] and therefore their relationship with her would suffer. Mr Burke said that he is concerned that as [Z] does not have any other siblings that this would not be good for her. Mr Burke said that he also believes that a move to [B] would require that the children experience many major changes in their lives, which he believes, that they would find difficult.
8. Mr Burke advised me that he has attended a Parenting After Separation” course and believes that the knowledge he gained from this course has enabled him to be more aware of the children’s needs and to have a more co-operative co-parenting relationship with Ms Carrow. However, according to Mr Burke, Ms Carrow communicates which him “when it suits her” and believes that Ms Carrow sometimes does not advise him of arrangements she has made for the children because she does not want to give him the opportunity of disagreeing with any arrangements she has made for them. Mr Burke said that, in spite of their improved relationship, Ms Carrow will not talk to him on the telephone and they “still do not have conversations about the children”.
9. Mr Burke told me that he now realises that in the past he did involve the children in the Court process and expose them to his own feelings. He said that he has tried very hard not to do this and believes that he has accomplished this to a large degree. He said, however, that the children know that their mother wants to relocate with them and that he does not want them to leave the Sydney area.
…
14. Mr Burke said that he understands that [Y] and [X] get on well with Mr N and he added that he does not have any problem with Ms Carrow being in a new relationship or having a baby. Mr Burke told me that he is in a relationship with a woman named Ms R, aged thirty-six, whom he has known for almost two years. When interviewed previously he mentioned that he knew this woman. Mr Burke said that he did not say that he was in a relationship at that time as he did then consider that he was “in a relationship” with her. Mr Burke said that she has met the children “a few times” and that “sometimes” she stays at his home when the children are there. He said that his priorities are his children and that he and his partner may live together at some stage but that the outcome of the current Court action may make such an arrangement impractical.
15. Mr Burke said that he has thought about moving to the North Coast so that he could be closer to the children if they moved there. He said that this would mean that he would not be able to be actively involved in [Z]’s life and he does not think that this would be good for her and he therefore cannot move from Sydney.
In relation to the mother’s interview the consultant records:
16. Ms Carrow told me that she is seeking to relocate to [B] area with [X] and [Y] because she “fell in love with a [person employed in the agricultural industry]” with whom she has a "fabulous relationship”. She said that she has known Mr N for ten years and began her relationship with him in February 2008. She said that he retired from his position in Sydney in 2006 and that he is now [employed in the agricultural industry full-time]. She said that her pregnancy was planned and that she anticipated that it would be difficult to conceive but that she became pregnant very soon after making the decision to have a baby with Mr N.
17. Ms Carrow told me that she did not advise me of this relationship when she was interviewed for the previous Family Report because Mr N had not, at that time, met the children.
18. Ms Carrow told me that Mr N has two adult children, one a daughter, who lives in [omitted] and who has two children, and a son, who lives in [Europe]. She told me that Mr N has three properties in the [B] area and that he cannot move to Sydney as he manages these properties and employs a number of people to work on these properties. Ms Carrow told me that her request that the children relocate with her is “not about taking the children away from their father”. She explained that if she stayed in Sydney she would have to return to work full-time and the children would not have the benefit of her full time care, as they will if she moves to [B]. She also said that` moving to [B] would provide the children with a wonderful opportunity, as they would have a “beautiful home” with a swimming pool and “a wonderful lifestyle in the country”.
19. Ms Carrow acknowledged that both [X] and [Y] are “close to their father” and she believes that they will miss their father. She said that they could see their father at least once a month and according to Ms Carrow, it would take about two hours for the children to travel to Sydney by air. She said that she is also hopeful that their father “will do anything he can” to spend as much time with them as possible. She advised me that she would be happy for Mr Burke to spend time with [X] and [Y] any time that he is in the [B] area. She said that the amount of time that the children would not spend with their father could be made up by them spending extra time with him during the school holidays. She said that the children could also communicate with him via Skype and that this might help if they missed their father.
20.Ms Carrow suggested that living in the [B] area may not be a permanent arrangement and said that as the children grow older they may need to attend school in Sydney. She indicated that she may return to live in Sydney for this purpose or alternatively that the children could attend boarding school.
21.Ms Carrow said that she does not believe that the current arrangement is working well for the children as the are often “dirty“ and “tired and cranky” when they return to her after being with their father. She said that [X] often does not complete his homework and she believes that it is disruptive for the children to spend one night during the week with their father, as they do currently.
22.Ms Carrow told me that communication between her and
Mr Burke is "better" than it was when I last spoke with her. She said that she now feels more comfortable with Mr Burke and not as threatened by him as she did previously.
23.Ms Carrow said that [X] and [Y] have a good relationship with [Z] and she acknowledged that sibling relationships are important and that they often become “more important as you grow older”. She suggested that [Z] could come and visit the children and stay in [B] with them.
24.According to her, both children are "excited "about her having a baby and she said that it is extremely unlikely that she and Mr N will have other children and that [X] and [Y] will be this child’s only siblings of a similar age and she wants [X] and [Y] to have a close relationship with her.
25.Ms Carrow said that she introduced Mr N to the children in August 2008 and that both [X] and [Y] have responded to him in a very positive way. She said that both children miss him when he is not with them. She added that sport has been an important part of Mr N's life and reported that he and [X] are involved in sporting activities together.
26.Ms Carrow said that she continues to be concerned that
Mr Burke is talking to the children about the Court process and she thinks that he may made comments to the children which may have made them feel that they do not want to move to [B]. She told me that [X] seems to have been told by his father that he will not see him (his father) very much if he moves to the farm with his mother.
27.Ms Carrow said that if the Court does not allow her to relocate with the children she would not “leave them” in Sydney with their father, as she does not believe that Mr Burke is “able to be a full time parent”. She told me that she thinks that she is the “better parent” as, according to her, Mr Burke tends to be a “good time Dad”. She said that she thinks that if she is not permitted to relocate with the children that the children should spend each alternate Thursday to Monday with their father but not spend any other time with him during school terms because of her concerns outlined in Paragraph 21.
28.Ms Carrow said that it would be very difficult for her and
Mr N if she has to remain in Sydney and she told me that she has concerns about whether their relationship will survive given the distance between their homes and the difficulties that this would create.
Even though communication between the parents has improved since separation it is still problematic. Both parents have attended parenting after separation courses and both report, in their own ways, an improvement in the co-parenting relationship since then. However, these children are entitled to expect that their parents will communicate in a more effective way than by email. The mother’s reluctance to do so is hard to understand. However, even the mother recognises in her evidence the formidable communication difficulties that exist between them. Whilst she attempts to put a positive perspective on communication at paragraphs 95-98 of her affidavit filed 17 April 2009 she does acknowledge ongoing difficulty later on in her affidavit and particularly from paragraph 111 onwards. Perhaps the real dimension of the communication difficulties that exist between the parents is not fully appreciated until one considers the evidence given by the mother at paragraph 125 onwards of the said affidavit about decision making. According to the mother there is a clear difference in opinion between the parents about matters such as religion. At paragraph 125 the mother states “I have concerns about our ability to discuss and agree on decisions for the children, including major decisions such as religion, which has now arisen”. This is clearly an important issue for the children, and for the parents. I have grave doubts, however, whether this issue is capable of resolution simply by email correspondence between the parents. Clearly communication between the parents is problematic for as long as it depends entirely upon email communication. I am left with real doubts in my mind as to whether the mother is prepared to progress beyond email communication when it comes to matter relating to the children.
On the mother’s proposal the tyranny of distance that is inherent in relocation, together with the significant reduction of the father’s involvement in the day to day lives of the children, means inevitably that the difficulties in communication are problematic indeed. If the parents are having such difficulty at the moment, living only a few suburbs away, and with the father actively involved in the children’s day to day lives, one can only imagine the potential problems that would arise if the mother’s proposal were accepted. There is, therefore, some substance to the father’s counsel’s submissions that the communication issues, particularly the mother’s reluctance to engage in anything more meaningful than email correspondence, raise issues about her ongoing commitment to the role of the father in the children’s lives. The Family Consultant’s concerns seem quite well founded having regard to all the evidence that is before me.
It must be noted, however, that these communication difficulties squarely raise other issues that are inherent in the father’s proposals. The Family Consultant has noted, and the well established social science authorities in the field recognise, that a shared parenting arrangement for parents who are unable to communicate effectively is highly problematic and contra-indicated. The communication problems would seem to indicate that equal shared time is not in the best interests of these children, even if the parents live in relatively close geographical proximity. It may well be that the current level of communication supports the current level of shared parenting, but I doubt if it would go further than that. Both parents recognise that the current arrangements seem to be working relatively well.
Likely effect of changes on the children
This consideration under s.60CC(3) requires me to examine the likely effect of changes in the children’s circumstances both in a physical and psychological sense, including the likely effect of separation from parents and other significant persons. To a certain extent some of these changes have already been explored in the context of the nature of the relationship that the children have with their parents and the other significant people in their life including Mr N and [Z].
It must be remembered that change is an ever present feature in life, particularly post-separation life. Children go through developmental stages that often represent significant changes for them. More often than not, for example, they will change schools. Children may often change where they live when their parents move house. In the post-separation family change is even more prevalent. The children have experienced a change in the form of their mother’s new relationship with Mr N, and the imminent birth of a new sibling.
The possibilities of change in the father’s household were explored in cross-examination with him. He was quite appropriately criticised in cross-examination about not telling the Family Consultant, and the court, about the nature of his relationship with Ms R. It would have been helpful to know a little bit more about Ms R. Notwithstanding that, the father’s quite firm evidence is that whilst he has known Ms R for about two years, and she has met the children a few times, she had never stayed overnight with the father and the children before the last holidays. He indicated that the best interests of the children was based on them, and not on his own personal life. He stated that if the outcome of the case is such that he cannot pursue his relationship with Ms R, he would not. He made it very clear that future cohabitation depends on the outcome of the case. He agreed in cross-examination that if Ms R became involved in his life, and that of the children, that would be a change for them.
I find that, for the time being, Ms R does not have a significant involvement in the life of the children. For example, compared to the involvement of Mr N in the children’s lives, hers is much, much smaller. However, I find that it is possible, indeed likely that the father’s relationship with Ms R will continue and, after this litigation, will probably expand to include greater involvement with the children. It is unfortunate that the father chose not to involve Ms R in the Family Report process or to include her as a witness in his case. It certainly makes it more difficult for the court to make any order that sees the children live on a fulltime basis with the father, or even on an equal shared care basis. As it turns out, nothing turns on this. It does demonstrate, however, that the children face inevitable changes in future irrespective of which proposal the court accepts, and irrespective in fact of this litigation.
Given that change is going to happen in any event, which of the proposals presents the greatest change for the children, particularly in terms of their relationships?
In the second Family Report the Family Consultant certainly notes the benefits to the children, particularly in terms of their lifestyle, associated with acceptance of the mother’s proposal. Nonetheless, she warns in very clear terms about how relocation would appear to present considerable difficulties for the children, mainly in terms of the negative impact that such a relocation would have on their relationship with their father. On that basis, the Family Consultant could not support relocation as being in the best interests of the children. Nonetheless, the Consultant acknowledged that not permitting the relocation also brings about change, namely the mother returning to work either on a full-time, or part-time basis. One can understand the mother’s concerns about the impact on the children of her having to return to work full-time but this option does need to be reality tested. Firstly, it is unlikely that she will be able to return to full-time work for a period of time after the birth of her baby. Secondly, her own evidence indicates that she has quite considerable financial resources including substantial savings. Thirdly, Mr N is far more optimistic about continuing to provide support for the mother and child than the mother herself is. It may well be, therefore, that the mother’s concerns about the impact on the children of her returning to work full-time are overstated. In any event it must be remembered that it was only until comparatively recently that the mother was working full-time in what appears to have been a very demanding and responsible position, and notwithstanding the other problems that have been referred to above, the shared parenting arrangements seems to have worked reasonably well, on balance.
Again, I return to the theme of the constancy of change in the post-separation family. That is clearly evident on the facts of this case. There can be no doubt, however, that even on the mother’s proposal the greatest change in the children’s lives will be decreased involvement by their father in their lives particularly insofar as it relates to school. For all practical purposes he would be relegated to the role of weekend father whereas, at the moment, the evidence of both parents indicates how much more involved he is in their lives. The mother’s proposal about relocation therefore presents the greatest risk of change that has an adverse impact on the children’s relationship with their father. Of course that change would be mitigated, if not eliminated, if the father relocated to the [Y] area. However, this would then disrupt the father’s relationship with his daughter [Z], as well as the children’s relationship with their step-sister [Z]. Under the circumstances I accept the reasons the father gives for not being able to relocate to the [Y] area.
Issues of practical difficulty and expense
This consideration arises under s.60CC(3)(e) and invites an examination of the practical difficulty and expense of a child spending time with a parent and whether that will substantially affect the child’s right to maintain personal relations with the parent. The mother was very effectively cross-examined about the practical and logistical implications of her own proposal for fortnightly contact, once in Sydney, and once in [B].
Insofar as contact in [B] was concerned it will clearly involve the father flying to the nearest airport, [omitted], collecting the children from somewhere, arranging a motor vehicle, arranging accommodation and then returning them home. No evidence was advanced of the actual cost of doing this, other than some vague evidence about the cost of accommodation. For this to work in an atmosphere of poor communication is, perhaps, problematic but I find it is nonetheless achievable especially with commitment on the part of the father. But is it really in the best interests of the children? In her evidence the Family Consultant strongly suggested it was not optimal and it was, at best, the least detrimental of options.
Insofar as contact in Sydney is concerned, the mother proposed that she would travel to Sydney at her own expense, bringing the baby and the two children. This would involve firstly driving to the airport at [omitted], catching the flight, and then having transportation in Sydney to deliver the children to the father’s home or other agreed location. She would remain in Sydney on the weekend and then collect the children on the Sunday afternoon. One would have thought that the logistical challenges of achieving what the mother proposes are formidable, but nonetheless the mother is a formidable woman.
One would have thought that there were countless opportunities for something to go wrong and thus present an obstacle to the implementation of the mother’s own proposals. A missed connection, or flight, is the obvious example. If that were to happen, given that the only communication between the parents is by email, communication and coordination of last minute changes becomes a challenge that might be very difficult for the parents to adequately cope with.
And yet, I have no doubt that both the mother and father are capable of implementing the regime proposed by the mother. Of course, that’s not the present issue. Section 60CC(3)(e) appears to have two limbs to it. The first limb deals with practical difficulty and expense and it seems to be focused on the parent and their capacity to make contact happen particularly from a logistical perspective. However, the second part of the paragraph is very much child focused and looks to the impact on the child - “substantially affect the child’s right to maintain personal relations and direct contact”. I have grave doubts about the ability of the children to cope with the formidable logistical arrangements that are a necessary part of the mother’s contact proposals. At their very young age they would be travelling by plane twice a month. One weekend a month they would be living at their father’s home and another weekend monthly they would be staying with their father at some unspecified place in the [Y] area. In his closing submissions counsel for the father described the children’s experience of these proposals in terms of it being “nomadic”. If one puts aside this rhetorical flourish of counsel in closing submissions, the court agrees it is hardly a contact arrangement that is stable, that improves in any way on the current regime, or one that has no impact on the child’s right to maintain relations with their father. The mother’s proposal is fraught with difficulty and risk insofar as the maintenance of the children’s relationship with their father is concerned. It is impractical and unrealistic and with respect to the mother and those who advised her it was ill-considered. Regrettably, as well as being impractical and likely to substantially affect the children’s right to maintain a relationship with their father, it also demonstrates a certain lack of insight on the mother’s part. It demonstrates in inability to separate her own personal needs in pursuing a relationship with Mr N and relocating to [B] from the needs of the children to maintain what even the mother acknowledges is a good relationship with their father.
Of all the proposals that remain for consideration it is the mother’s proposal for contact that presents the greatest threat to the children’s right to maintain a relationship with their father and raises the greatest issues about practical difficulty and expense.
Parental capacity, attitudes to the children and to the responsibilities of parenthood
There is nothing like a contested parenting case to expose the weaknesses of human character. In the highly artificial setting of the courtroom the lives of parents before and after separation are subjected to the microscopic glare of judicial scrutiny whilst learned counsel dissect the minutiae of personal lives in search of evidence to support their case. Very few parents emerge from this forensic process unscathed, and with their dignity intact.
The fact is that both the mother and the father are fundamentally good people and good parents who, in the maelstrom of separation and litigation, have both committed errors of judgment.
That both parents have involved the children in this litigation is apparent from the evidence they themselves give, and more importantly the evidence of the Family Consultant, particularly in the Family Reports. The father might be more guilty of this offence than the mother but in terms of the impact on the children of involving them in proceedings it is perhaps the case that the harm is done once they have become embroiled in the parental conflict, and irrespective of the degree of the same. Both parents demonstrated their inadequacy when they involved the children in the separation, and in these proceedings.
Both parents have demonstrated selfishness and this is inherent in the proposals of both parents. The mother’s proposal to relocate the children is clearly predicated primarily on her emotional needs, and not that of the children. No one begrudges or resents the love that she feels for Mr N and their desires to start a family in what is probably an idyllic location. But her inability to properly understand the impact on the children of fulfilling her own desires demonstrates a certain selfishness and lack of understanding that is perhaps surprising, but can be understood in the subjective context of wanting to start a new life with a new love.
The father’s proposals revealed a similar selfishness and lack of insight. Except in the situation where the mother chose to relocate to [B] and left the children in Sydney (an option she clearly excluded) he maintained the view that the children should either live with him on a full-time basis and spend time with the mother, or alternatively there should be an equal shared care arrangement. But nowhere in the presentation of his evidence and his case at the hearing could I find any convincing evidence to suggest why such a change would be in the best interests of the children particularly when the current shared care arrangement seems to work well. The position he adopted and maintained throughout these proceedings demonstrates selfishness and lack of insight that is equally hard to understand.
Both parents made material non-disclosure to the court. The father should have been far more forthcoming about his relationship with
Ms R and he should have disclosed to the court during the interim proceedings that he was on an anti-depressant medication.
The mother should have disclosed to the Family Consultant during the course of the preparation of the first Family Report, and then subsequently should have disclosed to the court at a much earlier time than she did, about the true nature and extent of her relationship with Mr N, and their decision to start a family, and the invitation to come and live with him in [B] as early as June 2008. The absence of any of this evidence in her affidavit filed 18 September 2008 is very difficult to understand. This constitutes a monumental error of judgment by the mother and left her wide open to the criticism that was indeed levelled of her – that she was, in effect, creating a situation which she thought would enhance her relocation case. As it is, I do not accept this criticism but it does represent a significant adverse reflection on her capacity to meet the emotional needs of her children, and her attitudes towards the responsibilities of parenthood.
Both parents were prepared to use relatively minor incidents that occurred between them to pursue their respective cases. I heard evidence about disputes over childcare, school holidays, soccer coaching. I heard extensive cross-examination about the dog, a labrador/malamute cross. I really don’t know which is worse – that one parent may have tried to use otherwise ordinary life events to somehow enhance their case, or whether the other parent sought to so manipulate what might otherwise be perfectly ordinary life events into matters that reflected adversely on the other parent? Which is worse? None of this reflects positively on either parent. They both so clearly love their children but they engaged in contrivance and counter-contrivance that I really hope they will soon forget as they get on with the rest of the business of living, raising their children, and preparing them for an even brighter future than the parents have themselves experienced.
The mother’s counsel criticised the father about his non-payment of child support. At first this sounded like a staggering omission and a real deficiency on the part of the father. Of course, he was skilfully cross-examined and not given the opportunity to explain why. The answer, of course, is in the wife’s own evidence. The email correspondence attached to the mother’s affidavit filed in court on the 11th of May explains that she did not apply for child support until the 3rd of April 2009 and that, certainly until she ceased working late in 2008 the mother was enjoying a very significant salary income such that, at least according to the father, would have resulted in the mother paying him child support based on the time that the children had contact with him. It is also apparent that the father was, in any event, making contributions towards the children’s costs, even though no formal child assessment appears to have issued. In these circumstances the father can hardly be criticised for not paying child support but let’s not let the facts get in the way of trying to score a point in cross-examination, a strategy that has backfired in this case.
And yet, despite my harsh criticism of both parents in this particular section of my judgment I adhere to and repeat my fundamental impression about both parents and that is that they are good people and good parents to their children. They are, regrettably, passionately engaged in conflict and it is not bringing out the better sides of their character. One can only hope that this judgment and the orders I make will contribute towards a cessation of the hostilities between them.
In closing my discussion under this consideration I record the fact that counsel for the mother submitted that the evidence indicated she would be unhappy if she were not permitted to relocate and that, therefore, this might affect her capacity to meet the needs of the children. I accept that she will be unhappy. I also accept that the evidence indicates that the father will be unhappy if I allow the children to relocate. What I don’t accept is that either of these parents will allow their unhappiness to get in the way of meeting the needs of their children. Despite the errors of judgement to which I have referred to above I simply do not accept that these parents would allow that to happen.
Order least likely to lead to further proceedings
The father’s counsel submits that the mother’s proposals for contact are so fraught with logistical difficulty, uncertainty and impracticality that it will, in probability, invite further proceedings. He specifically referred to the possibility of contravention proceedings but, in theory, there could also be proceedings to vary the contact order. I agree that of all the proposals, the proposal that raises the greatest risk of further proceedings is that of the mother insofar as it relates to contact.
Summary
When all of the above is considered I conclude that the mother’s proposal to relocate the children is not in the best interests of the children. I have some concerns about the mother’s willingness and ability to facilitate and encourage an ongoing relationship between the children and the father, were she to be in [B], and the father in Sydney. I am concerned about the likely affect of changes on the children associated with the move to [B], particularly insofar as it affects his relationship with the children. The mother’s proposal for contact raises significant issues of practical difficulty and expense, again which will substantially affect the children’s right to maintain a relationship with their father. Both parents have issues about capacity to parent, attitudes to the children, and responsibilities of parenthood. The mother’s proposal for relocation presents the greatest likelihood for further proceedings relating to the children.
However, insofar as the father’s proposals involve a change from the existing contact arrangement, I do not accept that those proposals are in the best interests of the children. There is no evidence before me to warrant departing from the long standing arrangement whereby the mother was the primary carer for these children, and the father was substantially and significantly involved. The mother has clearly indicated to the court that she will not relocate to [B] without the children, and hence there is no reason to change the existing arrangement. The father’s proposal for equal time is highly problematic, and unacceptable in a situation where the level of communication between the parents is so problematic. Furthermore, many of the criticisms I made of the parents in terms of their capacity to parent, attitude and responsibilities of parenthood do raise serious questions in my mind about their ability to be so intimately involved in shared decision making as is inevitable in an equal shared care arrangement.
Of all the proposals it is the status quo reflected in the current interim orders that, in my opinion, best meets the needs of the children. This is in accordance with the recommendation of the Family Consultant in the second report, and largely consistent with the first report.
I am required to consider equal time or substantial and significant time, subject to this being in the best interests of the children, and reasonably practicable. On the mother’s proposal for relocation, neither equal time nor substantial and significant time is reasonably practicable, even though I find the latter to be in the children’s best interests. On the father’s proposal I find equal time not to be in the best interests of the children, even though it may be reasonably practicable. However the current arrangement is substantial and significant time, and is in the best interests of the children. My reasons for this are set out in the judgment above.
Orders
There is no one set of orders in place at the moment which reflects the current parenting arrangement. I believe it is desirable for there to be one document which accurately reflects the current arrangement.
I direct the solicitors for the parents to provide to my associate within 21 days a single agreed document which represents the current contact arrangement. It is possible that the existing orders do not adequately deal with school holidays and special occasions. If that is the case then I indicate to the parents that I prefer the drafting of the orders relating to holidays and special occasions that is contained in exhibit A1, the minute of orders sought by the mother at final hearing on 11 May 2009. If there is a dispute about these issues, the matter be re-listed before me on 21 days notice. Just in case there is any doubt about this, I consider this to be a clear case for equal shared parental responsibility. There was no evidence before me to rebut the statutory presumption in this regard. In all other respects I dismiss the wife’s application and the father’s response.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 25 June 2009