Chesney & Layden
[2023] FedCFamC2F 89
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chesney & Layden [2023] FedCFamC2F 89
File number: CSC 267 of 2021 Judgment of: JUDGE COPE Date of judgment: 6 February 2023 Catchwords: FAMILY LAW – parenting – relocation – three children aged 9, 7 and 5 years – where mother seeks to relocate from Far North Queensland to Victoria – where father opposes relocation – where the mother failed to involve the father in children’s counselling – where the children’s counsellor is also the mother’s counsellor – where the father and mother do not agree in relation to the children’s health issues – orders made for equal shared parental responsibility save and except for the issue of medical matters – mother permitted to relocate with children. Legislation: Family Law Act 1975 (Cth) Part VII ss 10G, 60B, 60CA, 60CC, 65AA Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bondelmonte & Bondelmonte [2017] 259 CLR 662; [2017] HCA 8
Doherty & Doherty [2016] FamCAFC 182
Fawkner & Kado [2020] FCCA 1535
ML & RAE [2006] FMCAfam 528
L & T (1999) FLC 92-875; [1999] FamCA 1699
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
MRR v GR [2010] 240 CLR 461; [2010] HCA 4
Newland & Newland (2007) 37 Fam LR 103; [2007] FamCA 168
Pavli & Beffa (2013) 48 Fam LR 677; [2013] FmCA 144
Sieling & Sieling (1979) FLC 90-627; [1979] FamCA 23
Taylor & Barker (2007) FLC 93-345; [2007] FamCA 1246
Division: Division 2 Family Law Number of paragraphs: 189 Date of hearing: 18 & 19 August 2022 Place: City B Counsel for the Applicant: Mr Williams of Counsel Solicitor for the Applicant: Lehmann Featherstone Lawyers Counsel for the Respondent: Ms Lawrence of Counsel Solicitor for the Respondent: Murray & Lyons Solicitors Counsel for the Independent Children's Lawyer: Mrs Bassano of Counsel Solicitor for the Independent Children's Lawyer: Bridges Family Law Specialists ORDERS
CSC 267 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHESNEY
Applicant
AND: MR LAYDEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE COPE
DATE OF ORDER:
6 February 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The mother and the father have equal shared parental responsibility for decision making concerning major long-term issues regarding the children X born in 2013, Y born in 2015 and Z born in 2017 ("the children") other than medical decisions for which the mother shall have sole parental responsibility.
2.For the purposes of decisions relating to medical matters, the following terms apply:
(a)the mother shall, other than in the case of an emergency, before making a decision in the exercise of that parental responsibility, provide the father with an opportunity to provide input into the decision by writing to the father and informing him of the decision to be made;
(b)the mother will allow the father three (3) days within which to respond, before making the decision; and
(c)The mother shall then inform the father in writing of the decision made.
Living Arrangements
3.The children live with the mother.
4.The mother be permitted to relocate with the children to the City D region.
5.For the first 12 months after relocation, the children will spend time with the father as follows:-
(a)For one week of the Victorian gazetted school holidays in terms 1, 2, 3 and 4 provided that the children are returned to the mother at least 2 nights before school is to resume and noting that the one week consists of seven (7) days and seven (7) nights and does not include travel time;
(b)At all other times that the parents may agree in writing;
(c)The father must nominate in writing to the mother which week he wishes to spend time with the children at least 28 days prior to the school holiday period commencing;
(d)The mother shall meet the cost of the children’s airfares and any required accompanying adult for the mid-year school holidays and the father shall meet the cost of the children’s airfares and any required accompanying adult for the Christmas holiday; and
(e)The parent booking the airfares is to provide copies of the itineraries to the other parent forthwith upon booking the flights.
6.After 12 months the children will spend time with the father as follows:-
(a)For one half of the Victorian gazetted school holidays in terms 1, 2, 3 and 4;
(b)At all other times that the parents may agree in writing;
(c)The father shall spend time with the children for the first half of the Victorian school holidays in odd numbered years and the second half in even numbered years;
(d)Holidays are deemed to start and end on the Saturday unless otherwise agreed in writing;
(e)The mother shall meet the cost of the children’s airfares and any required accompanying adult for the mid-year school holidays and the father shall meet the cost of the children’s airfares and any required accompanying adult for the Christmas holiday.
7.The father may spend an additional time of up to one week with the children during school terms on the following conditions:
(a)The time takes place in City D;
(b)It occurs not more than once each school term;
(c)The children attend school, extra-curricular activities and any special events such as birthday parties;
(d)The father is solely responsible for all costs associated with that time.
Communication
8.The Father is to have telephone/FaceTime/Skype communication with the children as follows:
(a)On Saturdays at or about 5.30 pm with the mother to initiate contact;
(b)On Wednesdays at or about 5.30 pm with the Father to initiate contact; and
(c)At all reasonable times that any child may request such contact.
Other Parenting Orders
9.The mother and the father shall keep each other informed of their residential address, postal address, email address and telephone contact numbers and advise each other within 48 hours of any change to such details.
10.The parents will communicate with each other concerning issues relating to the children through the use of short message service texting in urgent circumstances, but predominantly via email communication.
11.The parent responsible for the care of the children is to contact the other parent as soon as practicable if any of the children become seriously ill, are hospitalised, or are involved in an accident, and are to inform the other parent of the name and address of any medical practitioner and treating facility.
12.These Orders shall, without more, act as authority to each child’s school to provide to each parent (at that parent’s expense) information about each child’s education progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents, subject always to the discretion of the school.
13.These Orders shall, without more, act as authority to each child’s medical practitioners (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about each child’s medical condition, treatment and copies of medical records and reports, subject always to the discretion of the medical practitioner.
14.That neither parent shall use physical discipline on the children and shall use their best endeavours to ensure no third party uses physical discipline on the children.
15.That both parents complete the Parenting Orders Program and provide a copy of the certificate of completion to the other parent within seven (7) days of receiving same.
16.The father is to complete an in person parenting program, either Triple P or Bringing up Great Kids, and provide to the mother a copy of the certificate of completion within seven (7) days of receiving same.
17.It is a condition of each parents’ time with the children that they complete the specified courses in accordance with orders 15 and 16 above.
18.That during the time the children are with a parent, that parent shall:
(a)respect the privacy of the other parent and not question any of the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent or their family members, including partners, in the presence or hearing of any of the children; and
(d)use their best endeavours to prevent any other person denigrating or insulting the other parent or their family members in the presence or hearing of any of the children.
19.The parents are to do all acts and things necessary to arrange for the children to attend upon a family consultant at the FCFCOA on 6 February 2023 at 10.00 am, for the purpose of the family consultant advising the children of the outcome of these proceedings and further that:
(a)Both parents will attend with the children; and
(b)The parents are restrained from discussing the outcome of these proceedings with or in the presence or hearing of the children until such time as the meeting with the family consultant has occurred.
20.The Independent Children’s Lawyer be discharged 30 days from the date of this Order or at the completion of an Appeal in the event that one is filed.
21.That all outstanding matters be removed from the pending cases list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Chesney & Layden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Cope
PART ONE: INTRODUCTION
The application before this court is in relation to the living arrangements of the children X born in 2013 aged 9 years, Y born in 2015 aged 7 years and Z born in 2017 aged 5 years.
Proceedings were commenced by Ms Chesney (“the mother”) in 2021. The Respondent is Mr Layden (“the father”). Both parties were 43 years at the time of trial.
The parties and the children currently live in the Town C area in Far North Queensland. The mother wishes to relocate to the City D region in Victoria with the children.
The parties met in 2009 and commenced living together in February 2010. The parties separated on a final basis on 8 May 2018. They were never married.
In October 2019 the father re-partnered with Ms E. There are no children of that relationship.
The father has four adult children from a previous relationships. Ms E has a son F who is 16 years of age. F lives with the father and Ms E.
The mother works as an educator. The father runs a business.
PART TWO: BACKGROUND
Whilst each party gives different evidence about their parenting contributions, neither party asserts any risk factors in their Notices of Child Abuse, Family Violence and Risk.
Following separation, the children lived with the mother and spent limited time with the father. The parties then attended mediation and from October 2020 the children spent time with the father from Saturday morning until Sunday afternoon every second weekend. In addition X spent overnight time with the father each week on the Wednesday. It was later agreed that Y and then all three children would also spend that overnight time with the father in the off week.
From February 2022 the children have lived with the mother and spend time with the father from Sunday mid-morning until commencement of school on Tuesday every alternate weekend and from Monday afternoon until Tuesday morning in the off week. This was in line with the family report recommendations.
The youngest child Z has special needs and is the recipient of NDIS benefits as arranged by the mother. The evidence provided by the mother reflects global delays particularly issues with gross and fine motor skills, expressive and receptive communication and social skills.
The Family Report filed on 7 February 2022 contains anecdotal evidence from the children that they found their time with their father boring, that they did not go anywhere when in his care and spoke of excessive discipline in his home. X was reported to suffer from anxiety, noting that this was disputed by the father.
On the mother’s evidence the children, and in particular the child X, have been reluctant to spend time with the father and her evidence is that they complain to her about the father and openly state that they do not wish to spend time with him. Nonetheless the time has been taking place and the father’s evidence is that the children enjoy their time with him.
PART THREE: THE PROPOSALS
The Mother’s Proposal
The Final Orders sought by the mother were handed up at the conclusion of the trial. In summary she proposes that the court make the following orders:
(a)The mother have sole parental responsibility; or
(b)In the alternative the mother proposes equal shared parental responsibility, save for medical matters where she seeks sole parental responsibility;
(c)The children live with her and she be permitted to relocate with the children to City D.
(d)In the event that she lives in City D with the children, the father spend time with the children in one week blocks during school holidays. She proposes to send the children to Far North Queensland for one week twice a year at her cost and the father to spend time with them for one week twice a year in the City D area at his cost. This means the father pays not only his travel but also accommodation, transport and activities for himself and the children in an unfamiliar location;
(e)In the event that she lives in City D with the children, FaceTime or other communication between the children and the father twice a week;
(f)In the alternative if the parents remain living in the same town, the children spend alternate weekends with the father from 3.00 pm Friday to 4.00 pm on Sunday, a one week block in each school holiday period, and time on special occasions;
(g)Other parenting orders including authorities and restraints; and
(h)The father to complete a parenting programme and both parents to complete the Parenting Orders Program.
The Father’s Proposal
The father’s Final Orders sought are set out in his Further Amended Response filed on 21 July 2022.
He opposes the relocation of the children.
He proposes orders for equal shared parental responsibility.
As regards the living arrangements, in summary he proposes that he become the primary care giver and the children spend time with the mother and himself in a two week cycle as follows:
(i)In the first week the children spend time with the father from 5.00 pm Sunday to end of school on Thursday and with the mother from end of school Thursday until Sunday; and
(j)In the second week, the children spend time with the father from 5.00 pm Sunday to end of school Friday and with the mother from end of school Friday until Sunday.
In the alternative, should the mother be permitted to relocate to City D he seeks approximately half of the school holiday periods and the ability to spend time with the children in City D during school terms.
The father proposes that the flights be paid for entirely by the Mother.
The Independent Children’s Lawyer’s (“ICL”) Proposal
The ICL supports the mother’s proposed orders.
Issues for Determination
In summary the significant issues that the court must determine are:
(a)whether the mother may relocate to City D with the children;
(b)the amount of time the children are to spend with their father if they live in Queensland or if they live in Victoria; and
(c)In the event the mother and children live in City D how the cost of travel is to be met.
PART FOUR: THE EVIDENCE
The Mother’s Outline of Case was filed on 11 August 2022 and sets out the documents on which she relies.
The Father’s Outline of Case was filed on 12 August 2022 and sets out the documents on which he relies. In addition he relied on agreed paragraphs in the affidavit filed 29 August 2022.
The Independent Children’s Lawyer’s Outline of Case filed 18 August 2022 sets out the documents relied upon.
The following documents were tendered and marked as exhibit:-
(a)M1 – Mother’s Financial Statement;
(b)F1 – Chronology and written submissions;
(c)M2 – Word version of final Orders sought by Mother;
(d)F2 – Word version of final Orders sought by Father; and
(e)ICL 2 - Word version of final Orders sought by ICL.
I have read and have taken into account all that material in reaching this decision together with the evidence of the parties and the witnesses under cross examination.
The Witnesses
The Mother
The mother gave an affirmation, swore to the contents of her affidavit and sought to make no changes.
Under cross examination, the mother was a polite and thoughtful witness. There was nothing remarkable about her evidence or the way that she gave her evidence.
The mother presented as lacking some insight but overall as a child focused and loving mother.
Her affidavit material expressed frustrations with the father in relation to various matters including that he pays limited child support and a refusal to vaccinate the children against Covid.
I accept her evidence that the children know the parents do not get along, but that she has nonetheless done her best to facilitate the children’s relationship with their father.
The Father
The father affirmed his affidavit evidence without any changes. The father’s evidence under cross examination was however often inconsistent with his own affidavit material as well as the evidence of the Family Report writer.
At times when asked a direct question, the father would give a long rambling answer which had no correlation to the question that had been asked. In fact the father’s evidence throughout was difficult to understand and at times confusing. There are many such examples including the following:
(f)Whilst he said that he now had a car capable of transporting the children, he gave evidence that it was purchased for his adult son Mr G but was never given to him (Mr G) and was now registered in the father’s partner’s name.
(g)The explanation that he sought primary care due to the amount of time the children spend in out of school care was strange, as was the fact that his proposal sees the children spending each and every weekend during school term with the mother.
(h)His evidence was that he would love to have the children on the weekend but that his proposal suits them better. In fact it appears to suit him better as he gave evidence of being able to work on the weekends.
(i)When asked why he could not find the time to shower and change for the Family Report interviews, as noted in the Family Report, the father said that he had done so. Then when he was asked if he was saying the Family Report writer was lying, his evidence was “the reason is very different, I won’t call her a liar”. When it was put to him that only one of them could be telling the truth he agreed and then laughed.
(j)He gave similarly contradictory evidence about his reported failure to bring activities to the Family Report interviews. The Family Report writer later checked her notes and confirmed that his evidence in court was different to what he told her on the day.
(k)When it was put to the father that he had told the Family Report writer that he was happy with the children’s the current living arrangements[1] his answer was that he would like to get more time.
(l)His evidence was that he found out that Z had an NDIS package through the mother’s affidavit material. When he was challenged that mother had given him the NDIS packages his evidence was convoluted and included that he was involved in the process through the school but ultimately repeated that he knew about it from the affidavit material.
(m)His evidence that by not calling the children regularly he helps maintain a good relationship between the mother, the children and himself.
(n)His contradictory evidence about when he ceased physical discipline.
(o)His evidence about his legal fees. He gave evidence that he had paid about $2,000 and had outstanding fees in the vicinity of $50,000 plus $8,000 for his barrister. His evidence was that his lawyer had agreed to accept $500 per week to pay off those fees, which would take about 116 weeks or over two years. Given his Financial Statement and evidence as to his limited income this was somewhat puzzling. On the other hand he gave evidence that he employs two people in his business.
[1] Family Report filed 7 February 2022, paragraph 5.20
The father did not make any concessions of significance despite the evidence, sometimes his own, to the contrary. This reluctance did not give me a good impression of his ability to negotiate or compromise.
Overall while the father was calm and considered in the witness box, he was not a helpful witness. At times he appeared to simply ramble.
Further, the evidence of the father was at times markedly different from his trial affidavit sworn less than a month before the trial and at times he gave completely new evidence. I formed the view that on those occasions he made his evidence up as he went along.
Due to his inability to answer questions and the changes in his evidence throughout the course of cross examination as outlined above, where they are in conflict I prefer the mother’s evidence to that of the father.
The Maternal Grandmother – Ms H
This witness provided unchallenged evidence of the support that she offered to the mother.
The Maternal Aunt – Ms J
The mother’s sister gave evidence in support of the mother. She confirmed her affidavit without any changes.
Under cross examination, she confirmed her ability to support the mother on a practical level should the mother live in the City D area. She also confirmed the existence of the trust arising from the maternal grandfather’s estate and that she is the executrix of that trust. She gave evidence of the trust’s ability to assist the mother with the cost of travel if necessary.
Her evidence was that she and the maternal grandmother had discussed setting up a travel account to assist or cover all contact and related expenses. She had undertaken her own research as to the likely cost for four people to travel to City B as being in the vicinity of $6,000 and was confident that the trust could cover or subsidise those expenses. She was also confident that there will be sufficient funds to do two such trips per year for approximately eight years. She gave evidence that if necessary she would personally assist.
The Father’s partner – Ms E
The father’s partner gave affidavit evidence which was unchallenged.
The Family Report Writer – Ms K
The Family Report writer recommends that the children live with the mother.
In the event that relocation occurs, she recommends the children spend a week with the father in each school holiday, alternating between Queensland and Victoria, with the mother to pay for the travel to Queensland twice a year. In the event that the children remain in Far North Queensland she recommends time with the father from after school Friday to Sunday afternoon at 4.00 pm provided that the father has the required car restraints.
Her opinion was that the father’s proposal to become the primary carer of the children would not be in their best interests; that it would be detrimental to them emotionally.
She gave evidence that children who resist time with a parent can do so for a number of reasons including “justified rejection”. The basis for that includes where there had been no consistent relationship, issues with quality of time or the capacity to parent or if a child does not feel listened to or heard. In her opinion the quality of time was a factor in this case.
The Family Report writer gave evidence that the children, and particularly X, feel justified in rejecting their father. She referred to X’s counselling notes where he expressed that he could not wait to be older so that he could have more say. She expressed the opinion that although the children may be young, if their rationale was justified then they should be heard. In her opinion the children would feel justified in their position where they report the father saying mean things about the mother to them and where he had discussed the proposed relocation with them.
She gave evidence that she was impressed with the level of counselling that the children were receiving and that they had a good rapport with their counsellor. She noted that the counsellor appeared to be open to involvement with the father. I note however that this is no longer the case.
I agree that in part the father is clearly the author of his own misfortune. By speaking negatively of the mother to the children and raising adult issues with them he has caused them distress. However I am firmly of the view that I can place no weight or only limited weight on the views of the children reflected in the counselling notes due to the involvement of the mother.
The Family Report writer was of the opinion that the father had not demonstrated insight into the children’s resistance to time and that it was important for him to engage in therapy and for the counsellor to see both sides from both parents.
Discussion and Findings
I have no doubt that both parents love these children very much. There has however been much focus on the negatives in the father’s household and very little focus on the positive. The mother herself conceded that there were in fact many positives.
If orders were made to reduce or suspend children’s time with a parent every time a parent was late in paying school fees, or was critical of the other parent, or lived in a cluttered or unattractive home, or at times had less than ideal hygiene or cleanliness or made their children eat vegetables, then there would be many children who spent little or no time with one or indeed both of their parents.
That said, I do accept and the father concedes that he has discussed adult issues with the children, that the parents have argued in the presence of the children and that these very young children are well aware of the parental conflict. I accept that such conduct is very damaging for these children.
The Children’s Counsellor
The mother first took X and Y to see their counsellor in December 2020. She is a registered clinical counsellor. The mother’s evidence is that she was referred to the counsellor by the children’s school. As of 2021 the mother has also received counselling from that same counsellor. So the mother and two of the children are attending on the same therapist.
The counsellor was not called to give evidence however her records were subpoenaed.
The Family Report writer expressed the view, and I agree, that ideally both parents should be involved in informing the children’s counsellor. The father had no input into the first counselling appointment and was not offered involvement in X’s counselling. It was only shortly before trial that he sought to engage and was ultimately refused.
I also accept that it is not uncommon for a therapist to see children with a parent or the family collectively before branching out on individual counselling. What is not common, and what has occurred here, is the mother’s long term ongoing attendance with the child.
The mother conceded that she sat in and spoke on X’s behalf in many of his sessions with the counsellor. Her evidence was that X didn’t say much in those sessions, that he would whisper in her ear and then she would tell the counsellor and then check with X if what she had said was right. She conceded that it was typical in those early sessions, and indeed consistently throughout the counselling, that X did not speak, and that she speak for him. She also conceded that X’s sessions mainly related to his time with the father. In those circumstances I am not persuaded that X has established a rapport with his counsellor or indeed that what he has said during those sessions are indeed his true thoughts, given that his mother is usually present and speaking on his behalf.
The mother conceded that time and time again she had said to the counsellor in X’s presence that X did not want to spend time with his father. She also conceded that this occurred from December 2020 when counselling started (and X was just seven years old) and continued throughout 2021 and 2022.
I accept the mother’s evidence that X has experienced no significant improvement despite the long term nature of the counselling. In fact I am not in the least surprised given the nature of the counselling as outlined above.
I accept the mother’s evidence that X was crying and begging not to go to his father and was also experiencing stomach aches.
I accept the mother’s evidence that she tried to talk to the father about these concerns but the father thought that X’s anxiety was all in her head. The mother conceded that the father now accepts that X suffers some anxiety but her evidence was that he takes no responsibility for X’s behaviour, which she identified as the father “just not listening”.
Submissions were later made, and I agree, as to the unreliability of the counselling records as to the child’s views due to the mother’s involvement in the child’s counselling and also due to the fact that she separately attends on the same counsellor. There is a very high risk that there has been a blurring between X’s views and those of the mother.
I was also troubled about the email chain between the father and the counsellor.[2] While this does not reflect well on the father, I have noted that the counsellor ultimately declined to see the father citing a conflict arising out of the upcoming court proceedings. This perceived conflict did not stop her from counselling the mother and X.
[2] The father’s affidavit filed 29 August 2022 annexure DD2
Insight
I am of the view that both parents are lacking insight. I agree with the Family Report writer’s opinion that healthy modelling to children includes not talking negatively of the other parent and not talking about legal proceedings with the counsellor in the presence of the children.
The mother has failed to see how her engagement in X’s counselling might be seen by him as a joint endeavour against the father. Repeatedly passing messages to the therapist that are critical of the father is, in effect, standing with X against his father and may have exacerbated rather than ameliorated the problem. However, I am of the view that the mother’s intentions were to assist and support X’s relationship with the father and that she was no doubt guided by the counsellor.
The father, on the other hand, has failed to see how his behaviour in discussing the proposed relocation with the children and criticising the mother could have a negative impact not only on the children but also on their relationship with him. I agree with the Family Report writer that although the father loves the children this behaviour demonstrates that he may lack insight.
If he had undertaken the courses recommended by the Family Report writer the father may not have found himself in this position and may have been able to address the children’s concerns himself, rather than just blaming the mother and the children’s counsellor. He must take some responsibility for the state of the relationship.
I accept that the father advised the Family Report writer that X did not have anxiety or social issues and saw the mother’s position about that as “rubbish” and an example of the mother trying to find ways to undermine his relationship with the children. I do not agree with the father and view this as a troubling oversimplification of the dynamic.
Under cross examination the father had some options for improving matters with X – such as talking to him and playing video games with him. That he has not yet done so is another example of the father standing back and not taking responsibility.
I am also of the view that the father has been content to be a contact parent. He did not actively seek more time with the children until July 2022. He did not actively seek to engage in the children’s counselling until about a month before the trial. I am of the view that he has been content to leave the hands on parenting in the mother’s capable hands.
Mother’s Ability to Facilitate
The mother conceded that she failed to involve the father in choosing the children’s counsellor and in the counselling process itself. It was unchallenged evidence that the father only attended the GP when she sought a referral for X because she asked him to care for the two younger children. Like many mothers, post separation she has simply got on with the job. I could not see any intent to deprive the father of an involvement but rather she just got on with the job and he has made no effort to step up until well after she sought to relocate.
The mother has ensured that, in the main, time has occurred despite the children’s objections. Since she first expressed a wish to relocate in 2020 the father concedes that his time with the children has in fact increased.
Because the time has been occurring, I am of the view that the mother has a proven capacity to encourage and facilitate the children’s relationship with their father. I am of the view that any failures on her part were misguided rather than a desire to undermine the children’s relationship with their father.
PART FIVE: THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). I will be generally guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
In making parenting orders, s60CA and s65AA provide that the best interests of the child are the paramount consideration.
Section 60CC prescribes the various “best interests” considerations that the Court is obliged to consider in arriving at its determination.
Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars” – being the benefit to the child of a meaningful relationship with both parents and the need to protect the child from all forms of harm. I am required to give greater weight to the second of the primary considerations.
The “additional considerations” are set out in s 60CC(3) and I am required to consider all of those issues. No greater weight is placed on any particular additional consideration.
In MRR v GR [2010] 240 CLR 461 on 3 March 2010 the High Court stated that ss.65DAA(1)(a) and (b) and 65DAA(2)(c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time.
A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting Order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
Prospective relocation of a child’s residence often gives rise to a conflict between the best interests of the child to know and have regular interaction with each parent and the rights of a parent to enjoy a freedom of movement (see AMS v AIF (1999) 199 CLR 160).
In determining the issue of potential relocation of a child, the Full Court in Taylor & Barker (2007) FLC 93-345 at [53], held:
…when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible...
Over time a number of principles have been established to assist Judges when dealing with parenting matters when relocation is in issue. Judge McGuire (as he then was) usefully summarised those principles in Fawkner & Kado [2020] FCCA 1535 at [44].
In relation to the notion of one parent having sole parental responsibility for some aspects of decision making I have considered the cases of:
·Newland & Newland (2007) 37 Fam LR 103;
·Doherty & Doherty [2016] FamCAFC 182; and
·Pavli & Beffa (2013) 48 Fam LR 677.
The Counsel for the father also cited a number of cases in their outline which I have considered where relevant.
PART SIX: APPLICATION OF THE LAW
I now turn to apply the legal principles outlined above to the particular circumstances of this case and in particular the background facts and the findings that I have made in reviewing the evidence of the parties. Those background facts and findings as outlined above and then applied will assist me to determine what parenting orders are in the best interest of the children.
S. 60CC(2) THE PRIMARY CONSIDERATIONS ARE:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
Neither party disputes that it is important for the children to have a meaningful relationship with both of them. There is however evidence that the children do not currently have a meaningful relationship with their father. That evidence comes from the mother, from the children’s counsellor and the Family Report writer.
Whilst the father previously denied any issues, he now appears to reluctantly accept that his relationship with the children, and particularly X, needs work.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Neither party claims any significant risk of physical harm.
In the mother’s counselling notes, it was reported that her sister was worried the father would hurt her or the children, or worse. Her evidence under cross examination however was that she knew the father would not hurt her, though no one could ever be 100% sure, and that she brought it up with a counsellor to talk through her feelings.
I am satisfied on the evidence before the court that there is no significant risk of physical harm in either household.
The issue of greatest concern is X’s anxiety and how best that can be addressed. This is an issue for both parents to better manage.
In relation to the allegations of excessive discipline, the father’s evidence is that he previously smacked the children but no longer does so. His evidence as to when this ceased varied. I found the father’s evidence about this issue to be unreliable.
In relation to the children finding the father’s home boring, this is not an issue relevant to protecting children from harm. I accept the opinion of the Family Report writer however that if matters continue as they are, the children may become increasingly resentful about spending time with their father. There is a risk that this in turn would impact on X’s anxiety and his mental health generally.
S.60CC(3): THE ADDITIONAL CONSIDERATIONS
S.60CC(3)(a) Any views expressed by the children and any factors that the court thinks are relevant to the weight it should give to the child’s views
The Family Report writer advised that possible reasons for a child rejecting a parent, aside from justified rejection, include alignment, a sense of responsibility to a parent that they are closely aligned to, if a parent does not promote contact, awareness of parental conflict and feeling an obligation to choose a side.
I am of the view that X is most likely aligned with the mother. This view is based on the children’s exposure to and awareness of the parental conflict, the father’s denigration of the mother to the children and the mother’s ongoing long term involvement in X’s counselling.
If I am wrong about that, I have had reference to the case of Bondelmonte & Bondelmonte [2017] 259 CLR 662. In particular, the High Court confirmed that children’s views are but one of a number of factors to be taken into account at [35] “…whilst the child’s views ought to be given proper consideration, their importance in a given case may depend on factors such as the child’s age and maturity and level of understanding…”
I find that the views expressed by the child X are contaminated by the mother’s involvement in the child’s counselling sessions, where she has repeatedly spoken for him in criticising the father, and the fact that the child’s counsellor is also the mother’s counsellor.
Further, at the time their wishes were recorded by the Family Report writer, X was eight years old, Y was six years old and Z was four years old. By the time of the mother’s trial affidavit, X was almost nine, Y was almost seven and Z was five years old. At such a young age the children’s wishes can hold little weight indeed for this court in the circumstances of this particular case.
I accept the submission made on behalf of the father that the wishes expressed by the children as reflected in the mother’s affidavit and the Family Report should not be persuasive in the decision making process.
I am not swayed by children complaining of boredom. Children have been doing so since time immemorial. It is no reason not to spend time with a parent. Further, I accept the mother’s evidence that the father in fact undertakes various pleasurable outings and activities with the children when they are in his care.
S.60CC(3)(b) The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the child)
It is unchallenged evidence that the children have a good relationship with their mother and the extended maternal family. There is however a damaged relationship with their father – in that the children are openly and repeatedly expressing reluctance to spend time with their father. Regardless of the weight I place upon that, this is a troubling circumstance.
The mother gave evidence that she had a close relationship with her own father and she saw the children’s relationship with their father as important. I saw no reason to doubt that evidence.
S.60CC(3)(c) The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in decision making, spend time or communicate with the children
I am of the view that the father clearly loves and wishes to spend time with the children. I am however also of the view that he has been content to stand back and allow the mother to be the primary carer and manage the children’s health issues.
I do not however criticise the father for his failure to engage in the children’s counselling in circumstances where the mother failed to involve him in that process and where it turns out that the children’s counsellor is also the mother’s counsellor. He had unsurprisingly formed the view that the counselling was not assisting or supporting the children’s relationship with him. I share that view for the reasons outlined above.
The father did attend the GP appointment for X when the mother was seeking a referral to a child psychiatrist. He has not however been involved in the speech therapy attendances. No doubt he could have done more.
I am of the view that the mother, as the person making the medical and counselling arrangements for the children, has an obligation to inform the father.
I accept that for a period of time the father did not spend time with the children because he allowed someone to live in his home who was a witness in a murder inquiry and where the police were involved. For that period of time the father prioritised a third person over his time with the children.
I accept the mother’s evidence that the father did not attend the children’s immunisation appointments with her, or the speech therapy appointments but that she would tell him about the outcome. Although the father gave evidence that he felt that he had been left out of Z’s speech therapy and the counselling he did not provide any evidence that he made any efforts to be involved, and only made an effort to meet the therapist shortly prior to the trial.
The father conceded that he and the mother do not agree in relation to health issues and in particular did not agree that X suffers from anxiety. He conceded that X can be stressed sometimes but described X as a very happy kid who rarely showed worry. He did not accept X might be bottling it up.
Interestingly, the father’s evidence about the NDIS process changed when questioned by the counsel for the Independent Children’s Lawyer. He said that Z had been through that process on three occasions and then as the school did the current one he was able to be involved. He had previously given evidence that he only saw the NDIS information when it was annexed to the mother’s affidavit.
The father’s evidence was that he had not spoken to the speech pathologist. It was clear from the line of questioning that the father had not been proactive in finding out anything about Z’s treatment or anything that he could do to assist Z with his speech delay. In fact he conceded not taking Z to an appointment when the child was in his care. His evidence was that had not been updated by the mother, however he is well and truly able to obtain information about the children from either the mother, the school or any other service provider.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The father pays no formal child support and I accept that the mother has not applied for a child support assessment. I accept that there is an agreement that the father pay the school fees, the school books, uniforms, school shoes and all school supplies.
The mother was critical of the father, giving evidence that at times the father was late in paying school fees and bought school shoes that were too big. Given his limited contributions I accept that this would have caused additional stress for the mother.
I accept that the father has a debt of approximately $15,000 owing to the mother of his three children from a previous relationship, and that those children are now over the age of 18 years.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
If the children relocate with their mother to City D then they will see their father only on school holidays. This will be a significant change as they currently see their father each week – with two overnights in one week and one overnight in the second week.
The father also lives close to their school so he is able to attend and engage with the school about the children’s education and challenges. I accept his evidence that he has recently done so. So a move to City D will remove the opportunity for him to engage in that way.
The father has however had little engagement with the children’s medical and other health appointments.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent.
The mother’s evidence was that she proposed to set up a travel account and make regular deposits. I am satisfied that she would do so, based upon her presentation in the witness box and her evidence that she had already managed to save funds which she intended to use for relocation costs in the event she was successful in her application.
Her evidence was also to the effect that she was the beneficiary of a trust established out of her father’s estate and that she would be able to access funds for airfares. The mother’s ability to access trust funds was confirmed by her sister who is the executrix of her father’s estate. I am satisfied that if the mother relocates to City D with the children she will be able to meet the costs of travel for the children to spend time with their father.
The father, on the other hand, gave evidence that the money for travel, and indeed renovations, would not be easy to come by and certainly his evidence is that he has a limited income and owes significant money to his lawyers. He is however living in a house owned by his mother and is self-employed. He conceded that he spends about $1,200 per school term on cigarettes. I am satisfied that if he needs to do so that he will find the money.
The father’s current home requires the three children to share a room. While he gave evidence of plans to renovate or divide a room, this has not yet occurred and I expect that the children sharing a room is likely to cause issues as they grow older, if it has not already done so.
S.60CC(3)(f) The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.
The Mother
As to the disclosures that the children have made complaining about what occurs at their father’s home, the mother concedes that she presumes what they tell her is true. She did not accept that the children may be saying those things because they think she wants to hear them or thought she approved of what they were saying.
It was put to the mother and she concedes that she viewed X complaining that the father made him eat mushrooms was an example of his father picking on him. I do not agree that making a child eat vegetables in and of itself is picking on a child or harmful.
As regards X saying that she was punishing him by making him go to the father, her evidence was that she told X that she was not punishing him, that he needed to have a relationship with his father. I accept that the mother wants the children to have a relationship with their father.
I accept her evidence that when X said “I wish I never lived with dad” she told him that was sad because she knew that his father loved him.
I accept her evidence that she was not deliberately attempting to put the father in a bad light in her affidavit but rather was simply stating facts.
Under cross examination, the mother readily conceded that the children have positive experiences with the father which they enjoy, such as playing games, gardening, making a crafts for the Town C show, having a veggie patch and chickens, and the father attending the children’s sports carnival with them.
If the children complained about time with their father, her evidence was that she would ask them to think about how to make it better and to reassure them that their father was trying his best. I was satisfied by her evidence and by her presentation that she wanted the children’s time with their father to be a more positive experience for them and would do her best to make that happen. The fact that she did not try to problem solve this with the father rather than with the children is however an issue.
I accept the evidence that it is the mother who takes the children to their appointments, made the application for NDIS funding and has been proactive in getting support for the children in relation to speech, health and counselling appointments. I also accept that the father has had little engagement with that, partly through the mother’s failures to involve him in those processes and partly through his own choices.
The mother’s evidence was that X liked his counsellor and that he found the sessions helpful. On the other hand, her own evidence was that there has been no significant improvement and he still rarely engages directly with her. I accept the mother’s evidence that she was open to other suggestions in the event that the court was of the view the current counsellor was not assisting X. She agreed that it would be best for X if the father had some input and I accept that she will facilitate and support that if it is ordered by the court.
I accept the mother’s evidence that she tries to speak positively of the father to the children. The issue that I see is her engagement in X’s therapy some two years or more down the track and how that may be perceived by him.
It was heartening that the father conceded that if the mother was given leave to relocate that she would abide by court orders. This reflects that there remains a level of trust on his part.
For the court to favourably consider a relocation it needs to be satisfied that the mother has the capacity to and will in fact facilitate the children’s relationships with their father. I am satisfied that she will comply with court orders and continue to use her best endeavours to facilitate the children’s relationship with the father.
The Father
The father was challenged as to his financial capacity to meet the needs of the children. He is self-employed and conceded that he is working for less than $10 per hour. He does however employ two people and lives in accommodation rented from his mother.
Cross examination explored his capacity to spend time with the children, as the father informed the Family Report writer that he was unable to take time off work during the school holidays[3]. While he argued that was the Family Report writer’s view, in fact the report states “he stated that he works for himself so he can’t take extended time off during the school holidays”. He then gave evidence that he would be unable to take time away from the local area. Again this evidence seem to shift during the course of cross-examination.
[3] Family Report filed 7 February 2022, paragraph 5.20
I accept the submission that it is only since he sought to become the primary carer that his evidence had changed to suggest that he could work around the children. I find his evidence about his capacity to spend time away from his work to be unreliable because of the changing nature of his evidence.
I accept the father’s evidence that he has been called in to school a couple of times and been to at least one doctor’s appointment. He was neither invited to attend nor did he try to attend on the children’s counsellor until shortly before trial. I accept however that the counsellor is also the mother’s counsellor which muddies the water around the nature and effectiveness of X’s engagement with her.
While the father challenged the mother’s capacity to meet the children’s practical needs[4], I accept that she is the one doing the vast majority of hands on parenting including getting them ready for school most days, arranging the NDIS and taking them to their appointments. The father has been content to allow her to do so.
[4] The father’s trial affidavit filed 21 July 2022, paragraph 60 (B) page 12
Unlike the father I am not troubled that the children may attend after school care four times a week.
S.60CC(3)(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.
All three children are under ten years of age. I have to question X’s maturity given that on his mother’s evidence he still rarely engages directly with his current counsellor.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture.
This is not a relevant factor in this matter.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family and S.60CC(3)(k) If a family violence order applies
I have nothing to add here.
S.60CC(3)(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.
The parties are in agreement that final orders are in the best interests of these children.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant.
The mother has good support wherever she lives. She has family support in City D including her mother and her sister in particular and other supports available including friends and cousins.
She also has two good friends in Far North Queensland, one in Town L and the other one in the Town C region. It was clear from their evidence that distance has not prevented friends and family maintaining regular contact and providing support to the mother, and I have no doubt they will continue to do so should she remain in the Queensland.
PART SEVEN: DETERMINATION
Parental Responsibility
In accordance with s 61DA(1), when making a Parenting Order the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children, or family violence.
In this case, in light of the findings I have made and as neither parent argues that the children needs to be protected from abuse or family violence the presumption applies.
I turn next to consider whether there is evidence that equal shared parental responsibility would not be in the best interests of the children.
The mother seeks sole parental responsibility or failing that sole parental responsibility for medical matters largely because the father refuses to have the children vaccinated against Covid.
I accept the mother’s evidence that the children are fully vaccinated save for the Covid vaccination, and that the father had agreed to all other vaccinations. I accept that the mother has attended to meeting all the children’s medical needs and has kept the father informed.
The mother conceded that she and the father yelled at each other when the father cut the boys’ hair, though her position was that she was reactive to the father yelling, that the father had put his leg in the door so she could not shut the door and then she tried to shut it whilst he had his leg in the door. Her evidence was that it was very scary but she denied that she almost crashed the car. Neither parent has anything to be proud of as regards this incident.
I accept the mother’s evidence that there have been no unpleasant incidents since those events. I also accept her evidence that she and the father had agreed which school the children would attend and have done so fairly easily and could do so again. She further concedes that she acted unilaterally when it came to organising counselling for the children.
It was disappointing to hear the father’s concessions that he had commenced the PPP parenting course just a month before trial and had not started the Parenting Orders Program or the Bringing up Great Kids Program. Given that the mother seeks orders that both parents complete the Parenting Orders Program it appears that she has also failed to comply. I am of the view that both parents can improve their ability to co-parent these children with proper advice.
I find that it is in the children’s best interests for the parents have equal shared parental responsibility save and except for the issue of medical matters for the following reasons:
(a)The parents have been able to agree schooling and the mother concedes she expects they will be able to do so again;
(b)There is no evidence of significant dispute extending beyond medical matters, and even then some issues have been agreed, such as vaccinations (other than for covid-19);
(c)The mother has made arrangements for some medical matters and counselling without seeking input from the father, however I accept that she has kept him informed;
(d)The father struggles to accept X’s anxiety;
(e)Z has ongoing medical issues and X has anxiety both of which will need timely and positive supports;
(f)The father has not chosen to involve himself in medical matters, even failing to take Z to an appointment on the one occasion he was asked to do so; and
(g)The father withdrew his consent for the children to attend counselling via an email and without consultation with the mother. I accept that this was pending a meeting between himself and the counsellor which was then refused.
I propose to make orders that the parent who is the primary care giver will have the ability to manage medical matters on the condition that there is consultation, other than in the case of a genuine emergency, and that the other parent is kept informed. This is because it is the primary care giver who will spend the most time with the children and will primarily engage most significantly with medical and allied health practitioners.
Having made the decision that equal shared parental responsibility applies to some aspects of the children’s care, I will next consider whether to make Orders for equal time and if not equal time then substantial or significant time with each parent in terms of s 65DAA(1) and (2).
Living Arrangements
The court is to decide with which parent the children are to live and as part of that process will consider the mother’s application to relocate. In doing so, the court is to consider all possible options as part of that decision making process. That is whether:-
(a)the children living with the mother in City D; or
(b)the children remaining in Queensland and continuing to live with the mother; or
(c)the children living in Queensland and the father becoming their primary care giver.
The father has not proposed orders that contemplate him relocating to City D if the children did so and I therefore do not propose to turn my mind to that option.
I am satisfied that it is in the children’s best interests to live with the mother and for her to relocate their residence to City D for the following reasons:
(a)The mother has been the uncontested primary carer until the father amended his application in July 2022;
(b)The mother has encouraged and facilitated the children’s relationship with the father to the best of her ability;
(c)The mother sought to address the issues in the children’s relationship with their father through counselling;
(d)The father has been content to stand back and allow the mother to be the primary carer and attend to their medical and related needs;
(e)The father has not sought to actively engage with medical matters;
(f)The father only sought to engage with the counselling a month prior to trial;
(g)The mother has good family support in City D;
(h)Although the children will need to change school and find new friends in City D, I am satisfied that both parents will support them in that transition;
(i)Although X, and indeed Y, will need to change counsellors, given the mother’s evidence that it has been of little utility and given my concerns about the current counselling, a fresh start may be helpful;
(j)Although the mother talked about a “trial” of block time, I am satisfied the mother will comply with orders and if anything will work to increase the block time;
(k)I am satisfied the mother has the capacity to meet travel costs;
(l)I am satisfied the father has capacity to meet travel costs if he organises his spending, noting his expenditure on cigarettes and his own evidence that he can find money when needed;
(m)I accept the evidence of the Family Report writer that unless something is done the children’s relationship with their father may be further damaged;
(n)I am satisfied that both parents love the children but that the current arrangements are undermining their relationships;
(o)The father has never been the primary carer and has no proven capacity to meet the children’s day to day needs;
(p)The father does not have suitable housing though I accept he intends to split one bedroom into two;
(q)I agree with the mother that her proposal allows for quality time in which to build better relationships;
(r)The opportunity to change the time with the father to block holiday time may allow the father and the children the opportunity for a fresh start and a focus on the positives rather than on the negatives; and
(s)Based on the father’s own evidence, I formed the view that he would struggle to meet the children’s financial needs in the event that he became the primary carer noting that he has a child support debt and a significant debt to his lawyer.
Equal Time or Significant and Substantial Time
As I am satisfied that the Mother’s proposal for the children to live with her in City D and spend time with the Father is in the children’s best interests and as the father does not propose to move to City D, I am satisfied that equal time is not practicable. The amount of travel, disruption and expense involved puts such a thought out of consideration.
I am also satisfied that equal time would not be in their best interests for the same reasons that I have made orders for the children to live with the mother in City D. In particular I would be troubled about changing the children’s primary carer when X suffers from anxiety.
I then turn to consider substantial and significant time. There are:-
dual minimum requirements of when the time is to occur and what the time is to achieve by way of mutual involvement of parent and child in each other’s lives relate to the dual aspects of the time being both substantial and significant respectively. A parenting arrangement will fail to meet the requirements of substantial and significant time unless it provides for time of a duration and frequency, and occurring at times, that enable the parent to be involved in the child’s daily routine.[5]
[5] ML & RAE [2006] FMCAfam 528 at 112
Section 65DAA(3) requires that for a parenting order to involve the children spending substantial and significant time with a parent it must at least provide for the children to spend time with the parent both on weekends and holidays and on days falling outside those times. Therefore, for the same reasons that equal time is neither in the children’s best interests nor practicable, substantial and significant time is also not in their best interests or practicable.
Consideration of Proposals
So I turn to look at each parties’ proposal as to the specifics of time spending and also the costs as the two are interwoven.
The mother proposes that the children spend one week with the father each school holiday alternating between Queensland and Victoria. Under cross examination she supported three out of the four holiday contacts occurring in Queensland after the first 12 months.
The mother proposed that she will pay for the children’s travel to Queensland twice a year and the father will pay for his costs of travel and all related expenses when he travels to Victoria. There is a significant expense in the father travelling to Victoria for contact – not just his airfares but accommodation suitable for himself and three children, transport and activities.
While the mother gave unchallenged evidence that the father had family in Victoria no details were provided. Further it is an enormous burden to stay in someone else’s home with three children. And staying in unfamiliar accommodation, with limited funds for activities and transport may adversely impact on their time together.
When the children travel to Queensland, the mother conceded that in effect a whole day of travel was involved either way. I understood that she had no objection to travel time being factored into her proposal so that the children had a whole week with their father.
The father’s proposal is confusing. He seems to ask for half school holidays but also proposes a more complicated arrangement seeking all of the holidays after second and third term and four weeks of the Christmas holidays in one year and two weeks in the alternate year. He proposes that all time occur in Queensland and he proposes that the mother book and pay for all the return flights for the children. The father also proposes that he have the opportunity to see the children in school terms should he be in City D.
While the mother’s proposal for the children to spend time with the father in Victoria twice a year is based on the recommendation of the Family Report writer, I am of the view that it is not in the best interests of the children to spend their holiday time with their father in Victoria. I am satisfied that time should best occur in their old home town, with access to known activities and friends, the father’s partner and her child.
I am also of the view that spending time in Victoria would not be practicable due to the cost involved and the difficulties that may arise out of time occurring in a location not of the father’s choosing. I am also troubled that if the father is forced to travel to Victoria either the time won’t occur or it will occur in such a way or in such a location as to make it a negative experience for the children.
As to the length of time I agree that for the first year one week blocks are most sensible. This reflects the young age of the children, the unchallenged evidence that they have not yet been in the father’s care for more than one week at a time and allows time for the children to adjust and settle back in to their father’s care before moving to the longer blocks. It also reflects the opinion of the Family Report writer that the children should initially have short blocks of time with the father. She was of the view that the best way to re-establish the children’s relationship with the father was the school holiday time as he had indicated that he could be flexible and take extended time off. She was of the view that would send a message to the children that they are important. I accept that opinion.
After a 12 month period however I propose that the time increase to half the school holidays. This will reflect their increasing age, that they will have had a period of adjustment and allow a more normal amount of holiday time. That will also allow the father and the children larger blocks of time that they can look forward to and for which they can plan activities. I accept that there are some challenges in the children’s relationship with the father however he does have a lot to offer them.
As regards the cost of contact, the mother is in the more fortunate position financially with access to a family trust and she is to have the opportunity to move with the children to the location of her choice. In those circumstances, I am of the view that she should meet the cost of travel on three out of four occasions. I am of the view that the father must however take some responsibility for costs as a reflection of his commitment to these children.
I propose to make the order sought by the father that in the event he travels to City D during term time he can also spend time with the children, but shall limit that to one occasion each term and on the condition that the children are taken to school, extra-curricular activities and any special events such as birthday parties. This allows the opportunity for the father to have engagement with school and teachers in the event that he is able to avail himself of the option.
Communication
The parties agree as to the terms of orders sought for the children to communicate with their father. The mother’s evidence is that the children are familiar with FaceTime and would be able to FaceTime the father without any issue.
Clearly if the children are to relocate to City D then regular communication via FaceTime or phone will assist to maintain a relationship. I propose to make orders in those terms, softening the wording so that commencement need not be precisely at the set time.
Neither party has proposed phone or other contact on special days however I do expect that the parents will facilitate calls taking place on the children’s birthdays, the parents’ birthdays, Mother’s Day, Father’s Day and Christmas Day. I have confidence that the mother as the primary carer will ensure that occurs and will encourage and facilitates calls on other important occasions.
Other Parenting Orders
The mother proposes a raft of ancillary parenting orders which are unchallenged. These are in the main standard orders about exchanging information, authorities to obtain documents and information about the children and a non-denigration clause.
As regards the restraint against physical discipline, the court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” (see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627). The father conceded that he had in the past used physical discipline but no longer did so. His evidence about when he ceased was contradictory and confusing. Given that evidence and the troubled relationship that he has with X, I propose to make that restraint.
The father sought a restraint that the children stop seeing their current counsellor. Given that the mother and children are to relocate I do not intend to make such an order.
The mother proposes orders that she and the father complete courses. If however I am to make such an order it must be supported by the evidence and ‘tethered’ to a parenting order.[6] The courses were recommended by the Family Report writer due to her concerns for the children and can only ensure that each parent brings greater skills to parenting in future. I am of the view that the children’s welfare is “liable to be compromised” if the parents do not complete these courses. I propose to make orders in the terms sought and will tether them to the parenting orders.
[6] L & T (1999) FLC 92-875, 86,390–86,393
Explaining the Orders to the children
The Family Report writer recommended that someone other than a parent tell the children the outcome of these proceedings. It needs to be someone the children can trust if it is not the Family Report writer. She also expressed that they should be told that it’s not a decision made by the parents but rather made by the court.
I propose to make orders in those terms so that the children have that opportunity.
CONCLUSION
Based on the findings and reasons set out above I am satisfied that the Orders that I now make are in the best interests of the children.
Where I have adopted the orders of a party I have at times changed the wording to ensure that the parenting orders are as unambiguous and practical as possible[7].
[7] see Chappell & Chappell [2008] Fam CAFC 143; Newlands & Newlands (2007) 37 Fam LR 103
I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 6 February 2023
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