Challenor & Healey

Case [2021] FCCA 860

FEDERAL CIRCUIT COURT OF AUSTRALIA

Challenor & Healey [2021] FCCA 860

File number(s): DGC 1945 of 2020
Judgment of: JUDGE BURCHARDT
Date of judgment: 29 April 2021
Catchwords: FAMILY LAW – Parenting – mother seeking to relocate from Victoria to Western Australia – mother’s husband receiving offer of employment with significantly greater pay and improved prospects of promotion – father opposing relocation because of likely disruption to his relationship with the children – children expressing approval of relocation but views immature and influenced by over-involvement in the decision-making process – family report and Independent Children’s Lawyer opposing relocation – mothers attitude to father dismissive and not supporting the children’s well-established and secure bond with the father – relocation not in children’s best interests.    
Legislation: Family Law Act 1975 (Cth) ss 60CC
Cases cited:

A & A (2000) FLC 93-035

Goode v Goode [2006] FamCA 1346

Jones v Dunkel (1959) 101 CLR 298

Mazorski v Albright (2006) 77 FamLR 518

McCall & Clark (2009) FLC 93-405

MRR & GR [2010] HCA 4.
Number of paragraphs: 169
Date of hearing: 6 & 7 April 2021
Place: Dandenong
Advocate for the Applicant: Mr Cinar
Solicitor for the Applicant: Erol Cinar Lawyers
Advocate for the Respondent: Mr Sietz
Solicitor for the Respondent: James Mcconvill And Associates
Counsel for the Independent Children's Lawyer: Ms Brennan
Solicitor for the Independent Children's Lawyer: Ruffin Lawyers

ORDERS

DGC 1945 of 2020
BETWEEN:

MS CHALLENOR

Applicant
AND:

MR HEALEY

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

29 APRIL 2021

THE COURT ORDERS THAT:

1.That the Orders of 8 August 2017 remain in full force.

2.That the mother and father be hereby restrained by injunction from:

(a)relocating the children X born in 2008 and Y born in 2010 ("the children") residence outside of Victoria;

(b)changing the children's school unless by agreement in writing; and

(c)involving the children in adult conversations such as time they spend with each parent and any changes to their residential address;

3.That the father ensure that X has her own bedroom at all times when she is in his care.

4.That the mother use her best endeavours to encourage the children to refrain from referring to their step-father as "Dad".

5.That the parties complete a 'Tuning in with Kids" parenting program with B Families. That the mother and father complete a Post Separation Parenting Course.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Challenor & Healey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BURCHARDT

Introductory

  1. This is a parenting dispute about the best interests of two children, X, born in 2008, and Y, born in 2010.  The applicant mother wishes to move to Western Australia with the children, where her husband, Mr C, has been offered a…

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AGLC
Challenor & Healey [2021] FCCA 860
Case
[2021] FCCA 860
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Challenor (the applicant mother) and Mr Healey (the respondent father) regarding their children, X and Y. The primary dispute revolved around the mother's desire to relocate the children to Western Australia, where her new husband had a promising job opportunity. The court was required to determine whether such a relocation would be in the best interests of the children, considering various factors including their relationship with each parent, the impact of past family violence, and the children's own expressed wishes.

The court was tasked with assessing the children's best interests in the context of a proposed relocation. This involved evaluating the weight to be given to the children's expressed preferences, particularly in light of their mother's influence. The court also had to consider the mother's role as the primary carer and the children's likely reliance on her guidance. Furthermore, the court needed to weigh the evidence regarding the children's relationship with their father, including any criticisms of his parenting style, against the findings of professional reports.

Burchardt J found that the children's expressed wishes in favour of relocation were not entitled to significant weight, as they appeared to have been unduly influenced by the mother's desire for the move. The court accepted the Independent Children's Lawyer's submission that the children had a good and well-bonded relationship with their father, despite the mother's criticisms. The court concluded that relocation to Western Australia was not in the children's best interests, noting that the mother exhibited a lack of insight into the interpersonal difficulties between the parents and resisted counselling. The court ordered that the previous orders of 8 August 2017 remain in force, and imposed injunctions restraining the relocation of the children outside Victoria, requiring written agreement for school changes, and prohibiting the involvement of the children in adult conversations about their living arrangements. Further orders included ensuring X had her own bedroom when with the father, encouraging the mother to discourage the children from calling their step-father "Dad", and requiring both parents to complete parenting programs.

Orders

Orders of the court

DGC 1945 of 2020

BETWEEN:

MS CHALLENOR

Applicant

AND:

MR HEALEY

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

29 APRIL 2021

THE COURT ORDERS THAT:

1. That the Orders of 8 August 2017 remain in full force.

2. That the mother and father be hereby restrained by injunction from:

(a) relocating the children X born in 2008 and Y born in 2010 ("the children") residence outside of Victoria;

(b) changing the children's school unless by agreement in writing; and

(c) involving the children in adult conversations such as time they spend with each parent and any changes to their residential address;

3. That the father ensure that X has her own bedroom at all times when she is in his care.

4. That the mother use her best endeavours to encourage the children to refrain from referring to their step-father as "Dad".

5. That the parties complete a 'Tuning in with Kids" parenting program with B Families. That the mother and father complete a Post Separation Parenting Course.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

What follows is from my notes. The Opening and Evidence of the Mother Counsel opened the case indicating his client's desire to relocate. Her husband has a job in Western Australia and is likely to be promoted within three years to a salary of some $200,000. Counsel pointed to four matters that should qualify the opposition expressed by Ms J to relocation. First, there was the incident at 2.30 am in 2019 which led to the end of the relationship with Ms G, when the police were called and the children were removed in the presence of the police. Second was that the father's de facto had made numerous threats to call police. Third, the father had been in a dysfunctional relationship with his de facto for three years. Fourth, during the time that X spends with her father, she has to share a bedroom with her brother aged 10 years when the father stores gym equipment in the spare room. The mother never withheld the children. There was the three-year-old child to consider also. The mother was called and adopted her affidavits as true and correct. Counsel for the father elected not to cross-examine. Under cross-examination by counsel for the Independent Children's Lawyer, the mother confirmed that the children could spend time with the father in accordance with their wishes during school holidays. It could be each term holiday if the children wanted to go. There had been problems recently because the children did not want to go. X has had chicken pox a while back. At Christmas, Y did not want to go and X was crying, also not wanting to go. The children say the father does not spend time with them. X does not enjoy camping. The children miss out on friends as a result of the father's lack of flexibility. Y did not want to go at Christmas and not at Easter. She tells him, "You have got to go." She is not trying to stop time with the father. X is a teenage girl and does not want to go. They get along with the father, but sometimes they do not. There was an argument on Christmas Eve between the father and the parental grandfather in front of X. The relationship with the father is up and down. When it was put to her that the family report showed that the children had a close and loving relationship with their father, the mother at first gave an equivocal non-responsive answer. She then denied that the relationship was close and loving. She said the children want less time with the father. She thought the children would want to come back from Western Australia and see him, but not for the whole holidays; probably a week like it is now; possibly two weeks over Christmas. When it was put that it was important the children have more time with the father, the mother said they still have to have a life where they are. She seemed to suggest that there could be time over long weekends. Y is 10 and she pushes for Y to see the father, but this is problematic. Y ran away from home. They were, however, living close by one another at the time. There are numerous instances where Y comes home and bursts into tears. She does not assault Y.

Decision

Reasons for decision

It is entirely apparent, taking all these relevant considerations set out above in mind, that relocation to Western Australia is not in the best interests of these children and should not be permitted, as the Independent Children’s Lawyer submits. CONCLUSION I am keenly conscious that this decision will come as a tremendous blow to Mr and Mrs Challenor. Nonetheless, I note that the children are of the clear view that they will get over it if it is not allowed. Regrettably, it is very possible that it will cause the mother’s view of the father to be yet soured further. She is resistant to any form of counselling to enable her to better address the difficulties that obtain between them and this is merely part of the unfortunate lack of insight that pervades her approach to the matter. It is to be hoped that, upon the conclusion of these proceedings, she will reconsider that position and contemplate obtaining the assistance that she needs (as, of course, does, indeed, the father, and he is not unprepared to address it) to try and get some resolution of the interpersonal difficulties in the best interests of the children. As indicated at the commencement there will be orders as sought by the Independent Children’s Lawyer.

Ratio Decidendi

Legal Principle Established

I doubt that she is as positive as she suggests. What she really suggests is that she would never stop the children from going provided that they wished to do so. Her reluctance is, in part, soundly based. During the relationship with Ms G, in particular, the children were undoubtedly exposed to family violence. However, despite all this, the interviews with Ms J (and, as I understand it, with the Independent Children’s Lawyer) show that the children do love their father and have a good and well-bonded relationship with him. They wish to promote it. They, nonetheless, tell the mother things that they think she wishes to hear. I entirely accept Ms J’s evidence to this effect. It will be necessary to return to the mother’s attitude about the father in due course but it is sufficient to say that in the position of the Independent Children’s Lawyer is obviously correct. It is in the children’s best interests to have a meaningful relationship with both of their parents and although there has been family violence in the children’s presence in the past, that appears to have been comprehensively removed by the cessation of the relationship with Ms G. The Additional Considerations: Section 60CC(3)(a) The children have expressed fairly clear views in favour of relocation to Ms J but I note that X, in particular, felt that if relocation was not permitted her mother would be fine, disappointed but fine, and that Mr C would be obviously disappointed but “I think okay.” It is perhaps sufficient to say, for these purposes, that I share entirely Ms J’s reservations about the weight that should be granted to the children’s opinions. They are clearly very immaturely thought through (albeit that this was age-appropriate) and they have not emerged from a vacuum. They have emerged because their mother and stepfather have, consciously or otherwise, strongly proposed the move to them. The mother’s assertion that this move was, as it were, essentially spinning from the children’s position is plainly ridiculous. What has occurred is that, completely fortuitously, what appears to be a very good job offer has come up in Western Australia and the children have been co-opted, when they should not have been, into the process of trying to effect this change. The children’s views, in my view, should be given very little weight in these circumstances. Section 60CC(3)(b) The mother has always been the children’s primary carer and I accept the professional evidence that the children are likely to look to her for guidance. This explains much of the conflicted behaviour that Ms J described, particularly in the case of X. Nonetheless, it is clear from the family report, which was not, in my view, seriously challenged by any party in cross-examination, that the children not only have an excellent relationship with their mother and stepfather but also with their father. It should be emphasised that the children did not reflect the mother’s significant criticisms of the father’s style as a disciplinarian. This throws much of her criticism of him into its proper light.