Chesterman & Royston
[2021] FCCA 1908
•18 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Chesterman & Royston [2021] FCCA 1908
File number(s): MLC 767 of 2016 Judgment of: JUDGE HARLAND Date of judgment: 18 August 2021 Catchwords: FAMILY LAW – parenting – eight year old twins – both parents have re-partnered and have other children – mother and her children live in City B – father and his children live in City C – whether or not it is in the children’s best interests to live with the mother in City B or with the father in City C Legislation: Family Law Act 1975 (Cth), ss 60B(1)-(2), 60CA, 60CC(2)-(3), 61DA(1)-(4), 64, 65D, 65DAA(1)-(2) Cases cited: AMS & AIF (1999) 24 Fam LR 756
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Taylor & Barker (2007) 37 Fam LR 461
Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 166 Date of hearing: 22-24 June 2021 Place: Melbourne Counsel for the Applicant: Mr Turner Solicitor for the Applicant: Melville Orton & Lewis Counsel for the Respondent: Ms Byrnes Solicitor for the Respondent: Brown & Proudfoot ORDERS
MLC 767 of 2016 BETWEEN: MS CHESTERMAN
Applicant
AND: MR ROYSTON
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
18 AUGUST 2021
THE COURT ORDERS THAT:
1.The final Orders made 8 September 2016 and all interim Orders made thereafter be discharged.
2.The children X and Y both born in 2013 (“the children”) live with the father.
3.The parties be restrained by way of injunction from moving the children’s residences to greater than 20 kilometres from their current residence, if doing so would increase the children’s and parties’ travel time required to comply with these orders.
BY CONSENT:
4.The children spend time and communicate with the mother as follows:
a.During school terms:
i.Each alternate weekend commencing from 6:30pm on Friday until 6:30pm on Sunday, with such time to extend to 6:30pm on Monday in the event that the Monday is a public holiday.
b.During the Victorian school holidays as follows:
i.For a period of 10 days during the short term school holidays, at times to be agreed and failing agreement from Friday at the conclusion of the school term to Tuesday of the second week, with the time to recommence after the holidays as if it had continued in the same cycle over the holidays, with any changeovers during the school holidays period to take place at 6.30 pm.
ii.During the long summer holidays for one half of the holidays taking into account the Christmas period Orders herein, by agreement and failing agreement, with the mother to have the first half in odd years and the second half in even years and the time to recommence after the holiday in the same cycle as before the holidays as if not interrupted by the holidays, with any changeovers during the school holidays period to take place at 6.30 pm.
iii.Such further and other times as agreed between the parties in writing.
c.The children spend the following special occasions with each parent, with the spend time arrangements set out in Order 4(a) and (b) above be suspended where required to facilitate same:
i.For Christmas:
A.With the Mother from 6:30pm Christmas Eve until 6:30pm Boxing Day in odd years and from 6.30pm on Boxing Day until 6.30pm on 28 December in even numbered years; and
B.With the Father from 6:30pm Boxing Day until 6.30pm on 28 December in odd years and from 6.30pm on Christmas Eve until 6:30pm Boxing Day in even numbered years;
ii.In the event that the children’s time with the Father falls on Mother’s Day, that the children’s time with the Father be suspended on the Mother’s Day weekend and in lieu thereof the children shall spend time with the Father on the following weekend.
iii.In the event the children are in the Mother’s care on the Father’s Day weekend, the Mother’s time be suspended from 6.30pm Friday until 6.30pm Sunday on the Father’s Day weekend.
d.Any such further or other times as agreed between the parties in writing.
5.The parents have equal shared parental responsibility for the children.
6.The children be permitted to telephone or communicate by electronic means at any reasonable time they request to do so and the parent caring for them at that time facilitate the communication.
7.Each parent be permitted to telephone or communicate by electronic means with the children at any time they are not in their care on a Tuesday or Thursday at 6:30pm and the other parent facilitate that communication, ensuring the children are available to take the call.
8.Changeovers are to take place at the McDonalds in City D, unless otherwise agreed between the parties in writing.
9.Both parents keep each other informed of their respective telephone numbers (including landline and mobile), email addresses and residential addresses and notify the other within 24 hours of any changes.
10.Both parents do all things necessary to authorise the children’s school to provide to both parents copies of all school reports, newsletters, notices, photo order forms and any other documents that the school would provide to a parent.
11.Each parent be at liberty to attend all school events and extracurricular award events or special events normally attended by parents, including but not limited to sports days, parent teacher interviews, concerts and working bees.
12.Each party be and is hereby restrained by way of injunction from denigrating the other parent or any member of their household or extended family to the children or in the presence or hearing of the children and from permitting the children to remain in the presence of any other party so doing.
13.The parents communicate via text message or email only, with such communication to be limited to matters pertaining to the children, save in the case of any emergency relating to the children AND FURTHER the parties endeavour to respond to the other’s communication within 24 hours of receipt.
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 Chesterman & Royston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
BACKGROUND
The matter concerns Y and X who are 8-year old twins (“the twins”). They were born in 2013. They have lived in their father’s primary care in City C since December 2019.
The parties separated in August 2015. From that time until December 2019, the twins lived in the mother’s primary care and spent alternate weekends with the father. The mother unilaterally relocated with the twins to City B from City C in breach of final parenting orders made on 8 September 2016. Interim orders were made requiring the twins to return to City C and be placed in the care of the father pending trial. The mother remained in City B with her other children.
At the end of the trial the parties handed up a minute of consent order addressing the time the twins will spend with the parent they do not live with during school terms, holidays and special days, as well as a range of ancillary orders. The parties agreed that these spend time with arrangements would apply regardless of whether the twins continue to live with the father in City C or the mother in City B. They further agreed that given the distance between the two towns, having time more frequent than alternate weekends during school terms is not reasonable practical. They also agreed that there should be an injunction restraining the parties’ form further relocating but had not worked out the wording. I have cast that injunction to reflect the parties’ intention that neither increase the distance between the parties’ homes such that the twins would spend more time travelling. It does not prevent either party from moving to a closer distance to the other parent. The parties also agreed that they should continue to exercise equal shared parental responsibility. The issue I have to decide is whether or not the twins should remain living in City C, living primarily with their father, or move to City B and live primarily with their mother.
The mother seeks orders that the children live with her in City B. She says she is their primary carer and it is in their best interests to live with her. She says she is supportive of the father’s relationship with the children. She says she regrets breaching Court orders and did so because she was desperate at the time.
The father says the children should remain living with him in City C. He says the children are well settled living with him in City C, and that their school performance has improved.
Both parents have re-partnered and have children from other relationships. The mother’s oldest son, E born in 2009 and aged 12, is from a previous relationship. He has Autism Spectrum Disorder. He has not seen his biological father since he was 5. During the parties’ relationship, the father says he played a father figure role to E but that since the parties separated the mother has not allowed him to have a relationship with E. E is not subject to these proceedings.
Y and X are the only children of the parties’ relationship.
The mother has another daughter from a subsequent relationship, F born in 2018. The mother is no longer in a relationship with F’s father. F sees her father on a regular basis.
The mother is in a relationship with Mr G, who also lives in City B. He has 3 children from a previous relationship who he sees on alternate weekends and half holidays. The mother and Mr G are engaged to be married.
The father is engaged to his partner, Ms H. They have a child together, J, born in 2017.
The mother commenced proceedings in the Magistrate’s Court of Victoria in November 2015. They were later transferred to the Federal Circuit Court of Australia. The parties entered into consent orders on 8 September 2016, which provided for the parents to exercise equal shared parental responsibility, the children to live with the mother and to spend alternate weekends with the father. The orders also restrained the parties from moving the children’s residence more than 20 kilometres from City C Post Office. The orders note that the parents would participate in further mediation at least 5 months before the twins start school. The mother says the purpose of that mediation was to discuss her desire to relocate to City B. The mother conceded when cross-examined that increasing the father’s time was flagged at mediation as a topic. The father says it was to discuss increasing the father’s time, as at the time of the consent orders the twins were not yet at school and the orders did not provide for school holiday arrangements. Order 19 of those orders reads as follows:
Not less than five (5) month prior to the date upon which the children are to commence school the parties shall attend mediation to discuss the future care arrangements for the children and in the event no agreement is reached neither party will raise an objection to the filing of proceedings on the basis of Rice and Asplund principles.
The mother complains that the father refused to engage in mediation when she first arranged it and she received a section 60I certificate from City B Family Relationship centre on 25 May 2018. The mother says she then applied through Victoria Legal Aid for mediation and that that was not arranged to occur until 16 August 2019. The father attended that mediation but it did not resolve. The father denies refusing to attend mediation. Indeed, as the order implies increasing the father’s time, it would not make sense for him to refuse. In any event, given the nature of the dispute it is not surprising that it did not resolve, as there is often not a middle ground in relocation disputes.
The mother says throughout their relationship, the father was violent. The mother gives the impression of the father being unreasonable and inflexible and not providing her with support. Aspects of the mother’s evidence were unsatisfactory and exaggerated. The mother had to be directed to answer the question she was being asked. She was keen to give answers that she thought assisted her case. This is particularly so with respect to family violence, where in her affidavit she gives the clear impression that she returned to family violence counselling in 2019 to discuss the father, but failed to disclose violence in a subsequent relationship. She and the maternal grandmother also said in their affidavits that the father had refused to facilitate time between the twins and the maternal grandparents. This was incorrect and misleading.
Both parents make negative comments about the other in their affidavit material. In both cases, their evidence is understandably coloured by the strength of their feeling about their respective positions and their perception of the other party’s unreasonableness. I find that both parties are genuine in their positions and both have good reasons for seeking the outcomes that they do. This is not a case where the children are at risk in either parties’ care.
My impression of the mother is that in her determination to get the outcome that she wants, she was focused on telling her version of events and was reluctant to give the father much credit. The maternal grandmother was clear in her evidence that she would say anything in support of her daughter. That is not unusual but given her presentation I place less weight on her evidence. I do not suggest she was being untruthful.
The father was quietly spoken and did not give expansive answers in cross-examination. His presentation was similar to that observed by the family consultant.
Both cases had obvious gaps in their evidence which did not assist the Court.
The mother expressed great remorse for breaching the orders and says her intention was never to reduce the father’s time. I suspect her remorse is more to do with the consequences she has faced, as she was keen to portray herself as the victim in an impossible position. The difficulty with that is a complete lack of engagement with the issues raised in the first family report.
The mother does not need to show compelling reasons for her move. She has wanted to relocate for a very long time. The mother, and indeed both parents, have to consider the interests of all of the children, not only twins. It was not suggested that the father could move to City B.
I have to determine whether or not it is in the twins’ best interests to remain in City C, which will mean remaining in their father’s primary care, or move to City B to live in the mother’s primary care. The case is a difficult one as it is finely balanced. There is no optimal outcome as the distance between the two towns is approximately 200 kilometres; as such it is not possible for there to be a substantially shared arrangement. Whatever the outcome the twins will be separated from siblings, a parent and extended family members.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). I will address those which are relevant.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their 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 (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. At paragraph 13 of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph 15:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court considered the issues of relocation in light of the 2006 reforms in Taylor & Barker (2007) 37 Fam LR 461 and said at paragraphs 53 and 83:
We agree that 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 principal 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, as least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and KB & TC (2005) FLC 93-224).
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.
Whilst the best interests of the child is the paramount consideration it is not the only consideration. In AMS & AIF (1999) 24 Fam LR 756 at 792 His Honour Justice Kirby said:
… …a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
Parents are not obliged to remain living close together after separation. An individual’s freedom of movement is an important right recognised in the Constitution. His Honour Justice Kirby refers to this in AMS & AIF but also acknowledges that this right gives way to a child’s best interest if the two things conflict.
THE MOTHER’S CURRENT CIRCUMSTANCES
The mother is employed by Employer K. She works 4 days a week and has secure employment with a good income.
The mother’s oldest son E has special needs. He has Autism Spectrum Disorder and ADHD, and receives NDIS funding. His father is not involved in E’s life.
The mother’s youngest daughter F lives with the mother and E in City B. Her father is Mr L, who spends regular time with F.
The mother is in a relationship with Mr G. He has three children aged 9, 7 and 3. He swore an affidavit in support of the mother’s case and was cross-examined. The mother and Mr G do not live together.
THE FATHER’S CURRENT CIRCUMSTANCES
The father is employed as a tradesman full-time. He has been in a relationship with his fiancé Ms H since 2016 and they have been living together since 2018. Ms H has a child from a previous relationship, M, who is 7 years old. M does not see his father, Mr N. The father says this is due to family violence committed by Mr N. Mr N has spent time in prison for family violence offences.
The father and Ms H have one child together, J, who is almost 4 years old.
The father complains that the mother has provided various reasons for seeking to move to City B which she has not substantiated, and has previously moved without notice and without regard to him and the twins.
On 22 August 2018, the father received a letter from the mother’s lawyers informing him that the mother is going to relocate to Town O in 30 days for financial advantages for herself and the children. The letter did not refer to the final orders. The father was opposed to the move.
The father says he discovered that the mother intended to move with the children to City B in May 2019. He saw that her current rental accommodation was available to rent and the mother told the after school carers that the children would not be going anymore.
FAMILY VIOLENCE
The mother alleges she experienced violence by the father during their relationship. She alleges that his controlling behaviour continued after separation. Despite her allegations, the mother proposed the parties continue to exercise equal shared parental responsibility. She raised the issue of family violence in the previous proceedings. The mother annexes to her trial affidavit a letter from the family violence counselling services she attends at Region P Community Health, which says the mother attended for 6 sessions between 23 August 2019 and 1 November 2019. The letter says “these sessions outlined the family violence issues that she had faced, which included controlling behaviours.” Significantly it does not refer to the individual(s) involved. It further says that the mother would have continued to engage with this counselling if she had not moved.
The parties attended mediation in August 2018. The children told the father that in early September 2019 they had moved to City B. The mother and children told him they would be going to a new school.
The mother claims that the father has continued to be emotionally abusive to her since they separated. I reject the mother’s evidence that the father has continued to subject her to controlling behaviour. When pressed in cross-examination to give an example of something that occurred in the last 6 months, she said that the father was always watching her and refers to watching her on Facebook, having people follow her and everyone watching what she does. My impression of this is that this is a narrative the mother has created for herself and it is without substance. She cannot produce any evidence at all with respect to the father having people follow her. It is a serious allegation to make. When pressed, she conceded that she did not have evidence of him having people physically following her. With respect to him watching her on Facebook, she relies on his references in his affidavit. She did not have any other examples. The father’s Counsel suggested to the mother that someone who is in litigation and annexes items from Facebook is not an example of emotional abuse, but of gathering evidence for the Court case. She reluctantly conceded this. Even in re-examination she was incredibly vague and was unable to give any specific examples despite being given the opportunities to do so.
The father denies being violent towards the mother. He said they had disagreements but he was never violent. Victoria Police withdrew the assault charge against him on 26 November 2015 and he does not have a criminal record with respect to family violence.
The father expresses concerns about the mother being violent towards the children and refers to an incident with respect to E on 16 July 2018, where E attended school with bruises and scratch marks and said that the mother assaulted him. The mother denies being violent towards E. The Department investigated and closed the matter after support services were put in place for the family. No further concerns have been raised about the mother’s treatment of E or any of her children.
The father also expressed concerns about the children’s school attendance and school performance when in the mother’s care. He says that the children’s education performance has improved since being in his care and he believes it is because of the support that he and Ms H gives them at home. He says they keep the children in a good routine at home and have regular reading time. The father makes several criticisms of the mother in his trial affidavit, including criticising the mother giving the children fast food when he picks them up on Sunday and their diet when in the mother’s care generally. The father says the children are happy in his care and are doing well.
The mother claims that E is receiving family violence counselling. Again, she says it is to assist him with what he went through when she and the father were together and after separation. Significantly, the mother did not disclose that she was in a violent relationship in 2018 and 2019 with Mr Q. The mother denied that they were in a relationship and said they were friends, although later conceded that they were romantic. The exact nature of their relationship is not important. She was cross-examined about the LEAP records. The narrative with respect to an intervention order names Mr Q as the respondent and the mother and E as the affected family members and refers to them being former de facto partners. The narrative refers to them being in an on/off relationship for approximately 10 years ending in 2019 and that over the course of their relationship the respondent has been verbally abusive and controlling. It notes that he is a regular user of cannabis and alcohol and this contributes to him yelling at her and being abusive.
The mother told police that he was not physically abusive towards her but had destroyed two of her phones over the years due to his outbursts of abuse, and has always monitored incoming and outgoing text and calls demanding to know who she has been in contact with. They live separately, but he regularly drives past and monitors her movements and she says it has gotten to the stage where she is anxious and having trouble sleeping and eating and it is affecting her relationship with her children. On 5 April 2019, a friend, Mr R was visiting when Mr Q arrived at the home and began banging on the front door and windows to enter and smashed a window. She did not come outside. The summary records that the mother signed the police notes but refused to give a statement. Mr Q was arrested and interviewed about the threats to damage property, but there was insufficient evidence to proceed. There were no independent witnesses and no statement of complaint from the victim.
The mother claims that none of the children were present at the time. However the LEAP record describes E as a protected family member and refers to the child being in bed at the time. The other children are not named. This is suggestive of E being present at the time the family violence incident occurred. It is also consistent with E needing to receive further counselling. Given the level of abuse and control, it is difficult to accept the mother’s insistence that this was just a casual friendship. If it was, it is difficult to reconcile why she would continue to see him, in contrast to being in a relationship with him, where it understandably can be very difficult for an individual to leave that dynamic in a relationship. The timing is such as well that I find it is more likely that the counselling that E and the mother engaged in for family violence in 2019 was with respect to Mr Q, not the father. I do not believe the mother when she says that the main issue she was receiving family violence counselling was with respect to the father. The counsellor prepared the letter at the mother’s request and does not name any perpetrator.
The mother did not disclose the violence she experienced with Mr Q. The mother said that she did not think it had anything to do with the twins. I think it is more likely because it did not fit with the narrative that she has been keen to repeat throughout these proceedings.
The father’s Counsel suggested to the mother that when she said that E was attending a family violence counsellor due to trauma from the violence experienced with the father, she is not telling the full story, as she did not refer to Mr Q and did not refer to the incident in 2018 where E told his schoolteacher that his mother hurt him. E had injuries to his arms and as a result, the Department investigated and E stayed with the maternal grandmother for a few days and also underwent a VARE interview. The police did not proceed with charges due to insufficient evidence. The mother agreed that being photographed, taken to a doctor and being interviewed would have been traumatic for E. Yet she still maintains that he was only receiving counselling with respect to violence of the father. This is another example of the mother’s insistence on sticking to her narrative which suits her case, even when faced with contradictory material.
Another part of the mother’s narrative that she continued to repeat was allegations that the father would not allow her parents to spend time with the children and each week. This is a gross exaggeration and does the mother no credit.
MEDICAL NEEDS OF THE CHILDREN
Part of the mother’s case is that she was unable to get the proper medical assistance for her children in City C and would have to travel to City B. The mother argued that City B is a bigger regional town than City C and is therefore likely to have more services. This is despite the mother clearly being on notice from the previous proceedings that the father opposed her relocating to City B and disputed that there were her claims that E’s and the twins’ medical needs could not be addressed properly in City C. Dr S’s report noted that the father disputed her claims about the availability of services in City B and City C and the frequency of the mother’s need to travel to City B for medical appointments. Indeed her claim was undermined when subpoenaed records were produced and she was cross-examined about them.
I find this is another area where the mother has exaggerated in order to support her actions, as it would have been an obvious and straightforward thing for her to provide evidence of those needs. She is represented by experienced family lawyers. The parties’ current law firms represented the parties when the final consent orders were made.
Dr T is E’s paediatrician. When they lived in City C, E saw her for 6 monthly appointments. The mother said in cross-examination that if there was an emergency they would have to travel to City B where Dr T has rooms. The mother did not provide any evidence as to how often that has occurred.
The mother told Dr S that she needed to go to City B for her cancer treatment but that she was mostly concerned about the lack of services in City C for E’s special needs.
Dr S recommended that the mother’s planned relocation only be considered when it was objectively assessed that City B had sufficient services for E and/or the benefit to the children in City B outweighed the current benefits to the children remaining in City C, where the children continue to have a close physical relationship with the father. Despite this, the mother did not produce any evidence with respect to the treatment needs of E, F or the twins.
E is in receipt of NDIS funding for occupational therapy, his psychologist and his respite care.
The twins had surgeries to insert tubes and deal with their adenoids in 2017 and further surgery in 2018 with respect to the tubes. The twins’ nose and throat specialist Dr U reviewed Y in late 2020 and in a letter dated 19 March 2021 he said that her hearing test showed some right-sided dysfunction but good hearing and that the ear appeared reasonable. He did not recommend rushing to reinsert the tube as she may grow out of it.
In correspondence, the mother raised concerns about the children needing to see a psychologist to check in with their well-being. The father’s lawyers responded on 30 November 2020 saying that the father had no objection to the children seeing a psychologist when in the mother’s care and that the father had informed the welfare officer at the twins’ school about the mother’s concerns that the welfare officer intends to speak to the children and report back.
THE CHILDREN’S SCHOOLING
One concern is that the children have experienced a number of changes of school. The children started school at City C Primary School. When the mother moved them to City B she enrolled them at V School. The mother says if she is successful then the children will return to the school she unilaterally enrolled them in, V School. When the children returned to City C the father enrolled them at a different primary school than the one they originally attended, which is the same school where Ms H’s son M attends.
Under cross-examination the mother agreed that the children are doing well at school. When asked if she gave the father credit for that, she initially said that she gives credit to the father and to Ms H as well. She denied this being because they were a family unit and said that Ms H took on the parenting role, not the father being the full time parent. The mother went on to say that a partner can assist but the parent should be undertaking the main parental role. She bases this assumption on what the children have said to her. She referred to the father not being home when the children get home from school. She also said more than once that she thinks the children could be doing better.
The father relied on reports from the school showing absences for the children, particularly during their prep year. As it turns out when the parties were cross-examined about those records, it is not entirely clear whether those records are reflecting day absences or absences from sessions of school and in those circumstances the records do not hugely assist.
THE MOTHER’S CASE
The mother’s case is that if the children remain in the father’s care, the reality is that Ms H will be their primary carer rather than one of their parents. A major gap in the father’s case is his failure to call Ms H as a witness. This is particularly so, because of the mother’s allegations that Ms H, rather than the father, is the primary parent of the twins in his household.
Criticisms of the father
One of the criticisms the mother makes of the father is that when she was living in City C he would not make requests for additional time with the twins for example, a dinner or some other activity they could do when he was available. The mother’s position in this regard is completely unrealistic in circumstances where she alleges that he was violent towards her and she acknowledges that they do not communicate.
The mother also complained that if the father is not able to take the children to the appointments personally he has Ms H do it. The mother contended that she, as the children’s mother, should have the opportunity to take them. That is unrealistic of the mother, particularly given that they live in two different towns and given the lack of communication between the parties.
I do not accept the mother’s contentions that the father refused to provide her with assistance and insisted on bringing the children back on Sunday night rather than getting organised for school Monday mornings. When pressed, it became apparent that the reality is somewhat different. It is clear that the parties had discussions and that, because the father had to start work at 8.30am and Kinder started at 9am, and further because the mother started work later, she suggested that he bring them back Sunday night. This happened a couple of times and then continued.
Previous intentions to relocate
The mother previously sought the father’s agreement for her to relocate to Town O, which is a 40 minute drive from City C. At that stage she was in a relationship with F’s father who owned a house in Town O. The mother says she was struggling financially in City C and that the children would not have missed out on anything as they would have remained in the same school and she would have taken them to all of the same extracurricular activities. The mother claims due to a relationship breakdown she was not able to move. The mother then said in cross-examination that it was only ever a temporary move but at no stage did she ever say this that to the father, and the correspondence from her lawyers to the father does not give any indication that the move was temporary and for financial relief.
The mother has not produced evidence that shows she was under such pressure that her breaching the orders was justified. Rather, it is clear from her evidence and her mother’s evidence that it is a strongly held desire that the mother had and that in her view, as the father would never agree, she might as well not wait any longer. I rather suspect that she did not think the Court would order that the children remain in City C pending final hearing. There have also been further unforeseen delays with respect to the final hearing due to Covid-19. The mother chose not to return to City C pending the trial.
Views towards the father
The mother had difficulties making concessions in support of the father. The children’s school performance in 2020 is one example. The school reports from the twins’ first school, City C Primary School, showed that the twins were experiencing some learning difficulties. During the short period they attended V Primary School in City B, the school carried out a number of tests and found that the children were behind in their learning. Their current school reports show that they have caught up. The mother says this shows that they are at a good place but they need to do better. The mother was taken to the school report that referred to the twins as happy and friendly members of the classroom arriving at school on time daily, well-organised and neatly dressed with well packed lunches. They had excellent attendance and participation in remote learning, and referred to the improvements in their literacy and numeracy being a combination of the efforts of the school and at home. Again, when pressed about giving credit to the home environment for this improvement the mother said she did give credit but she said again that they could do better. The school refers to the support that the father and Ms H give to the girls at home and says that both are very supportive of the girls and their learning, and both are easily contactable and positive in their outlook about the girls’ education.
The mother did not attribute the girls’ earlier difficulties at school to their changes of school and said the girls were timid and behind in their speech when they were at kinder.
The mother was cross-examined about the comments she made to Ms W to the effect that the father was unwilling to have the children for additional periods. Again what she told Ms W was not correct when she gave the impression that the father would not offer her extra time with the children after she relocated to City B in contrast to the mother’s offer of extra times to the father when she was still living in City C. This is another example of the mother giving a misleading impression to support her case.
The mother’s current partner
The timing appears convenient that the mother met Mr G on the day she signed the lease for the property in City B. It is understandable that the father would think that she was moving in order to pursue that relationship. However, I accept that the mother has wanted to move away from City C for several years. She claims she did not move to City B to be with Mr G and rejected the suggestion by the father’s Counsel that the move to City B was another example of an impulsive decision by the mother. It is clear that the mother wanted to move to City B for some time and she indeed secured a lease in July 2019, although she did not fully move until the commencement of term four. It was also clear that she was increasingly travelling back and forth with the girls.
The mother signed the lease on the City B property on 9 July 2021 and updated her Facebook status to say she was in a relationship on 13 July 2021. She told Ms W that she did not meet Mr G until after she had relocated, which is not correct. The mother says she needed to rent somewhere a couple of months in advance because she was staying with her mother during the week from Mondays to Fridays with the children whilst they attended school. This indicates a degree of pre-planning.
The mother’s behaviour and communications with Mr N
The father further expressed concern in his affidavit that the mother was making contact with Ms H’s former partner and M’s father, Mr N, by trying to befriend him on Facebook, in circumstances where he has spent time in jail for the violence he committed against Ms H and M. The mother claimed that Mr N befriended her and that the father then sent a screenshot showing that she made the Facebook request.
The mother was cross-examined about her communications with Mr N. The father’s Counsel put to the mother that there was an intervention order in place against Mr N protecting Ms H and M due to family violence, and that to the best of the father’s knowledge, Mr N does not know where Ms H and M live. She then put to the mother that she tried to contact Mr N through Facebook. The mother denied this and said that he was always on her friend’s request, but that she did not message him. She said he has lived in City C for many years and she knows that he and Ms H have a child together but says she does not know any other information about their relationship. She claims she did not know there was an intervention order and did not know that he had spent time in prison.
The father’s Counsel suggested to the mother that in the early days she and Ms H were friends and there were a number of Facebook exchanges between them. The mother denied that they were friends and said that Ms H contacted her about the paternal grandparents as she was having similar issues to what the mother had experienced as well as with the father’s sister-in-law. The mother says the first she knew of the intervention order and the fact that Mr N had spent time in prison was after receiving a letter from the father’s lawyers. The first letter from the father’s lawyers on this topic is dated 19 August 2020 and refers to concerns about the mother attempting to communicate with Mr N advising of the IVO in place due to serious family violence which resulted in Mr N spending some time in prison and Mr N not spending any time with M. They identified risks to the twins as well as the rest of the household. The father requested that the mother confirmed that she would stop making any attempts to contact Mr N. The mother said that she did not think it was relevant to respond. That is difficult to fathom given it is clearly requesting a response with respect to serious risk concerns.
On 2 December 2020, the mother’s lawyers finally responded to the August letter. After stating they were instructed it was “simply incorrect” that the mother was trying to contact Mr N and denied sending him a friend request, the letter goes on significantly to say:
Our client is fully aware of Mr N’s reputation for serious drug abuse, significant family violence and violence in general. She immediately deleted the friend request by Mr N. your clients request that our client not communicate with Mr N – which communication had not occurred – raises the broader issue of X and Y being protected from exposure to the violent behaviour which Mr N frequently exhibits. Our client concern in this regard is heightened by the fact that Mr N’s former partner Ms H is the primary carer for X and Y while they reside with your client.
They went on to request a copy of the intervention order. This letter is inconsistent with the evidence the mother gave in cross-examination where she claimed to be unaware of his violent offending. I find this exchange troubling.
The father’s lawyers responded to that letter on 4 December 2020 and enclosed a screenshot of a Microsoft Outlook notification of the mother’s friend request to Mr N. They explain that as Ms H used her email to set up his Facebook account, she received the notification. They sent a further screenshot showing that the mother and Mr N were now Facebook friends. This flies in the face of the mother having a genuine concerns about the twin’s safety. This correspondence and screenshots are annexed to the father’s trial affidavit. I am satisfied that the mother made the friend request to Mr N. It is very concerning that the mother denied knowing about Mr N’s violence in cross-examination and denied making the friend request in spite of receiving that correspondence months before. She continued to try and say that he sent a friend request and tried to downplay what was said in the letter instead that she instructed her solicitor that she just wanted to know that the twins were protected by the intervention order.
Despite being shown the Facebook entry showing her requesting him to be friends on Facebook, the mother continued to say that Mr N made the friend request on 17 August 2020, and then said that she does not take Facebook seriously. She denied doing it, and says that she did not message him and did not want to know him. I do not accept that evidence. She denied contacting him in order to gather material to support her case. She then said for the first time that she had previously been friends with him on Facebook but had never spoken to him. She said she knew of him around town and knew that he had a child with Ms H but did not know the rest. This is just not credible. Her evidence is also inconsistent. She claims to be fearful of the father stalking her on Facebook, but also claims not to take Facebook seriously.
THE MOTHER’S WITNESSES
The maternal grandmother
The maternal grandmother swore an affidavit in support of the mother’s case and was cross-examined. She and her husband live in City C. They have a close relationship with all of the mother’s children and assist the mother from time to time.
Before she was cross-examined about her affidavit, she was asked about text exchanges between herself and the father annexed to the father’s trial affidavit. When asked how often she saw the twins she said she does not see them often, perhaps every five or six weeks and that she goes to City B to see them. She complained that occasionally she sees them in City C but it usually takes two or three text messages and three or four days to get a response from the father. The maternal grandmother makes the following complaint about the father, she says:
Mr Royston has refused to permit X and Y to spend time with my husband and I despite being aware that we both have been significantly involved and J both girls since they were born. I fear that if the children remain in Mr Royston’s care he will ensure they have minimum contact with their maternal family
This statement is exaggerated and quite unfair as became apparent when she was cross-examined about this.
Looking at the first exchange of messages, the maternal grandmother first sends a text at 3.23pm on 25 June 2020 asking if they could have the twins on Friday overnight. At 7.40pm she send sends another message of “????”. She sent a further text at 10.14pm and 10.56pm. The father replied saying “hi. Just got your message. Can they come stay tomorrow night?” She accepted. There is nothing wrong with that exchange. Whilst he did not respond until the next day it was within 24 hours.
The next exchange was on 15 September 2020 where she asked to have the twins from 5pm to 7pm. He responded 10 minutes later agreeing to it.
The next exchange occurs on 1 November 2020. It was a cooperative exchange. The father has plans for the original day she sought but he readily agreed to her alternative.
On 24 December 2020, she texted at 9am asking if they could take the twins out for dinner from 7.30pm to 9pm. It was perfectly reasonable for the father to already have had plans on Christmas Eve. What the further exchanges show is that she would make requests at short notice, sometimes the same day, sometimes a couple of days beforehand. She would be impatient if she did not get a response within a couple of hours. Generally where he had plans, she would propose an alternative and arrangements would be made.
The father’s Counsel took her through all of the text exchanges over a 17 month period. In total there were 8 exchanges. He said no to two of them. It does the maternal grandmother and the mother no credit to suggest the father has prevented the maternal grandparents from seeing the twins. Even after being taken through those exchanges she remained critical of the father and said that he tried to stop them from seeing the twins at school. This was in the early after the mother’s unilateral relocation. Tensions would have been high at that stage. The maternal grandmother said they did not try again. She wants to be able to attend school functions.
In re-examination the maternal grandmother said that she thought it was appropriate that the mother breached the orders and moved because if she had stayed for the next 12 months, he would not have let her move. The sense of entitlement is unreasonable. She said the mother could not receive the services she needed to for E. Yet those needs are something the mother has never articulated. My sense of the grandmother is that she has taken an unreasonable approach with the father. She needs to remember the role of grandparents is different to parents and the twins have paternal grandparents as well.
The mother’s partner, Mr G
Mr G was briefly cross-examined. With respect to his drug use, he denied smoking marijuana. He said he rolls his own cigarettes and smokes outside by the carport or the shed. Sometimes he stays at the mother’s house and other times he stays at his mother’s home. He mostly stays with his mother during the week when he is working because he works long hours. His parents help him with school drop-offs as he is normally on the road at 4am and his parents also assist him care for his children when he has them during the holidays. When he has his children on the weekends he says he spends about 80% of the time at the mother’s home and the twins are there on the weekends as are his children. He says all the children get on pretty well and play together. They have small disagreements as children do, but get over it quickly and continue to play together.
THE FATHER’S CASE
The father seeks for the twins to remain living primarily in his care. His case is that the twins are well settled and happy in his care and are doing well at their school. He states that the twins are in a stable family environment with “easy access” to their half and step-siblings, as well as their grandparents, extended family and friends. The father states the twins have a close bond with their four cousins and their step-brother, who all attend the same school.
The father describes an incident where he called the police after the twins told him they were sharing a car restraint. This resulted in the mother being pulled over with the children in the car. The mother denies that there was an issue with the seatbelts. The father made no attempt to call the mother and ask her if that was case. This does not do him a lot of credit as he does not appear to have thought what impact there would be on the children having the police pull them over.
The father says during sports season he plays 1 night a week. There is a summer competition of about 8 games and a winter competition of about 8 games. The father says that since the girls came into his care he has not refereed any games. When he had the girls on alternate weekends he refereed games 3 to 4 nights a week. This is perfectly reasonable in circumstances where the twins were not in his care. Once the twins came into his care, he did not continue with those commitments leaving Ms H to care for the children.
The father agrees that Y licks the tip of her fingers from time to time. He thinks it is a habit of hers and says they were thinking of getting her a ring or something that she could play with that rather than sucking her fingers.
The father’s daughter, J, whom he had with his partner Ms H, has a disease where her kidneys create crystal like stones. She is on medication and will be for the rest of her life and the aim is to control it so that she does not produce the stones. She has had several surgeries. With respect to the handover between Ms H and the mother on 21 April 2021, the father says that J had had surgery the previous week, but within a few days developed high fevers and they needed to call an ambulance. Initially, the plan was to fly in a small plane but the ambulance service could not arrange a plane quickly enough and they went by road. The father says that he and Ms H decided that he would go as Ms H is scared of flying and would not get in a small plane. He was in Melbourne for about a week and a half whilst J recovered from an infection. On the previous occasion they both went to Melbourne with J as it was the school holidays. They are both planning to go on the next occasion J needs to be in Melbourne. The father said the prognosis for J is pretty positive. It is a matter of getting the right balance of the medication and ensuring that she drinks lots of fluids so that those stones are not produced in the kidneys. These are different to the kidney stones that people get that cause a lot of pain. They did not know that she had these until she got an infection and was vomiting with high temperatures.
In cross-examination the father denied that Ms H is the twins’ primary carer and says they are a family and the girls are in their care together and she has assumed the role of stepmother. On occasion she has taken the children to school and other occasions he does. I accept that Ms H is significantly involved in the twins’ care. I am not satisfied that Ms H is their primary carer.
The father said he starts work at 8.15am unless he needs to put the girls on the bus, in which case he starts at 9.00am. He gets home at 5pm.
In cross-examination the father agreed that Ms H sends emails on his behalf and was shown an email that she sent to the school. He also confirmed that she is included in correspondence from his solicitors. He confirmed that Ms H filled in school enrolments and other adult contact details and noted that she should be contacted first. She works nights. He also confirmed that Ms H’s mother is one of the alternate contacts for the school as is his father. The father denied deliberately leaving the mother’s details off the form as an emergency contact and said that the mother had to supply those details just as he did with respect to V School. He said they gave the school the orders and he thought that she had to contact the school and set up her own school account and so on. The mother’s Counsel criticised the father for not indicating on the form and ultimate parent that the mother would be interested in the children’s classroom activities and excursions and so on. As he filled in the other details about her. He said she was in City B and that he thought that she would complete the details just as he had to for V School.
The father says that Ms H is not a witness in the case as they agreed that there was no need for it and they wanted to keep a stable routine for M and J at home. He said she had not come to the other Court cases. He then conceded that maybe they made a mistake that she is at home looking after the children. He denied that she was not there because she would not support everything he says in his case.
THE ROLE OF THE FATHER’S PARTNER
Part of the mother’s case is that it is really the father’s fiancé Ms H who takes on the role of the primary parent of the twins and not the father. The mother was keen to stress that she would make whatever arrangements so that she could attend all of the children’s appointments take time off work and so on. The mother relied on things that the twins had said to her. If Ms H had been available to give evidence no doubt this area would have been explored in some detail.
The father’s case is that they are a partnership and that they are both involved in parenting. The father was cross-examined about the twins’ school enrolment forms which were filled out in Ms H’s handwriting and signed by the father, and notes Ms H as the first parent and the father as the second parent. Certainly this lends some support for the mother’s concerns. However that ignores the working arrangements they have. The father works as a tradesman and works day shifts. Ms H works at night. Therefore she is more available for things such as the after-school periods.
When the mother was cross-examined it was clear that she relies on after-school care given her work arrangements. That is not a criticism of the mother. It is perfectly reasonable for working parents to use before and after school care in circumstances where not all forms of employment lend themselves to flexibility around those hours. No doubt if Ms H also worked during the day they would rely on some before and after school care or would seek the assistance of grandparents or others. This does not lessen the role of the parents.
I note that the father is somewhat hypocritical about this issue in his trial affidavit when he complains about the mother not doing all of the handovers at City B but sometimes having a friend or her mother do handovers for her. It must be remembered that the mother has two other children that she needs to make arrangements for as well. There is no suggestion on either side that either parent has arranged for anybody inappropriate to assist them with the children’s care. I note too that the mother’s partner Mr G works long hours and starts as early as four in the morning. This is not a criticism it is just the reality. No doubt if the mother and Mr G live together in the future, the mother will also assist in the care of his children when they are with them, including when he has to work.
When cross-examined the mother said that she had several conversations with Ms H where Ms H expressed she was not coping with the children. However, in her affidavit she only refers to a specific incident. I do not accept that there were several such conversations as, if there had been, this is something that the mother would have referred to in her evidence. That incident also needs to be seen in context as at the time Ms H and the father’s youngest daughter J was in hospital in Melbourne with the father for ongoing treatment for chronic blockages in her kidneys.
The mother was cross-examined about the solicitors’ correspondence exchanged about this issue, where the father alleges that the mother denigrated him for not being able to facilitate changeover due to being that the hospital in Melbourne with J. In the correspondence, he complains that the mother insisted on taking the children until 5:30pm Sunday and stated that the mother should not assume that the children are not well cared for by the father’s partner when not in his care. Both of them can delegate their parental responsibility, including instructing others to care for the children on their behalf and to facilitate changeovers.
The response from the mother’s lawyers puts her version of events where she says that Ms H was distressed and pleaded with the mother not to return the twins until the father returned from Melbourne and that the mother discovered that for most of the second week of holidays twins were cared by various other people in City C and not the father. The letter referred to the mother’s repeated request that the children be in the care of either parent in preference to a third party wherever possible. The mother would prefer to be notified when the father is unable to care for the children, including when in the care of Ms H so that the mother’s offers of assistance can be considered in the first instance in preference. The correspondence from the father’s lawyers in reply referred to the text exchanges between the mother and Ms H which the mother was also cross-examined about. The mother sent Ms H a text at 8.02pm, saying “I want in writing to cover myself that I have the girls till Sunday 5.30”. She sent a further message at 8.08pm, saying “can you just reply saying you let me take them till Sunday that is all I want.” Ms H responded a minute later saying “I let you take the girls until 5:30 PM Sunday as agreed with you, due to J being in hospital in Melbourne.”
The mother sent a further text the next day at 12.16 saying, “Did you not come out to my car last night and say you most [sic] have the girls because Mr Royston is not here and in Melbourne with J?”
The mother says that she offered to Ms H to take the children and that it was Ms H who suggested she keep them until Sunday. The mother says she sent a text because she wanted to cover herself so that she could not be accused of breaching the orders. That would explain the first set of exchanges, but not the text that she sent the next day. Of course I do not have the benefit of hearing from Ms H. Despite this, particularly noting that the mother has exaggerated her evidence and other places, I do not accept that Ms H was distressed and unable to cope with the children. However, certainly it makes sense even that the mother was available and the father was in Melbourne with J for the mother to have care of the children for those few days. That is a different situation to the normal types of arrangements that occur in blended families, where both parents assist in different ways with care of children, accounting for the various work commitments and the like.
The mother agreed in cross-examination that during the recent school holidays E was in her mother’s care for a week and the twins were in her mother’s care for part of that week. There is nothing wrong with this as the maternal grandmother has always been actively involved with the children. The point is that the mother wants the father to be primarily responsible for looking after the children, although she says she wants the children to have a relationship with the paternal grandparents. The mother then complained that the paternal grandparents do not invite the twins to family events and refers to an engagement party. Of course the mother does not know if that was a party for adults only and despite being pressed she could not come up with any other examples. She then referred to the period when the mother and father was still in a relationship. The father and paternal grandfather confirmed that the paternal grandparents did not meet the twins until they were three years old, after the relationship between the parties ended.
The mother told Ms W that the twins were not invited to J’s birthday party by the paternal grandparents. The twins were in the mother’s care for that date. The mother claims that even if they were in her care, she still would have provided them on that occasion. The reality is that particularly given the parties live in different towns, there will be occasions when there are family events that the children do not attend because they are in the other parent’s care. This appears to be part of the ongoing narrative of the mother to support her contention to Ms W that she did not think that the twins would be particularly disadvantaged by living away from the paternal grandparents.
The mother agreed that the paternal grandfather often attends changeover.
THE PATERNAL GRANDFATHER
The paternal grandfather swore an affidavit in support of the father and was briefly cross-examined. He has two other children. Mr Z is married and lives in City B with his children ages six and eight, and Mr AA lives in City C with wife and four children aged ten, eight, six and five.
He agreed that he and his wife did not meet the twins until after the parties separated. They now see the twins regularly.
MS BB
Ms BB is the welfare officer at the children’s school. The father’s lawyers subpoenaed her to give evidence. Her notes were subpoenaed and she produced a further note which was admitted into evidence on the day she was cross-examined.
The mother contacted her, expressing concern about the twins and asked Ms BB to speak to them as she thought the twins needed somebody to talk to who were not the parents and was further concerned about Y’s anxiety. The mother says that the father told her she would have to arrange any psychological assistance for Y on her own time. The mother says she was unable to do this only having children on the weekends.
From Ms BB’s notes it appears that the mother gave her the same false narrative that she gave in proceedings, saying that she moved to City B to escape the father, saying that the services for her disabled child were much better in City B and saying that the father will not let the twins see her mother who lives in City C. She also told Ms BB that the father’s parents never liked her, and do not like Ms H either. The mother also said she was worried about the girls and upset as they did not appear to be happy.
Ms BB explained that she is not generally familiar with the children at school unless they have been referred to her by a parent or teacher, as there are almost 700 children at the school. Neither of the twins had previously been referred to her. She went to the classroom and tried to speak to them individually but neither twin wanted to speak. Afterwards, she spoke to the teacher who suggested that she try talking to them together as they are quiet girls who do not talk much.
Ms BB did speak to the twins together and spoke a little bit about their home life and school. They talked about enjoying staying at their father’s home and liking Ms H and said they did not like going to their mother’s home every second weekend as they did not like the partner’s children. Ms BB suggested to the twins that they might speak to the mother and let the mother know if they wanted to have some one-on-one time with her. The twins said no and indicated that they just prefer to stay at the father’s home. When Ms BB suggested that they might want to talk to their mother about this, the twins said that they just pretend that they like going there because they do not want to upset the mother.
Ms BB said the impression of the girls was that they were quiet but had good friendships at the school. They appeared well-adjusted. They are both in the literacy learning program which means they are a little bit behind in their reading but are making quite good progress there.
Ms BB said the twins were calm and quite matter-of-fact when they described the two homes.
Ms BB said after her notes were subpoenaed the mother rang her and questioned her about them. Ms BB explained that the legal team at the Department of Education was responsible for printing off the notes in response to a subpoena. Ms BB said her practice is to record in her notes what children say to her, and that she does not necessarily record what the parents tell her because they tend to put their own spin on things. She was not concerned that the twins had been told what to say to her.
She is not mandated to keep records and does not generally keep records of times and dates of every phone call she has with parents. She recorded having a conversation with the mother on 18 February 2021 and 17 March 2021. It became clear during the course of being cross-examined by the mother’s Counsel that Ms BB’s note of the conversation on 18 February 2021 was not provided by the Department of Education when answering the subpoena.
Ms BB did not call the mother after speaking with the children. She said she does not like to get in between parents and that her role is more to encourage the children to use their voice and say what they like and not like. She accepted that the mother would not have been happy with her feedback and so to avoid a conflict she elected not call her.
It is clear from the notes that Ms BB did provide that the mother was consistent in her narrative, saying that she was forced to move because of the father and his family and complaining that he does not allow her parents to see the twins and that the services in City B are superior.
The mother was cross-examined about her conversations with Ms BB and her reference in her trial affidavit to the twins allegedly telling Ms BB, “dad says we’re not allowed to speak with you”. Initially she says Ms BB told her that on the phone but when pressed conceded she did not.
The mother was cross-examined about Ms BB’s notes where she refers to the girls telling her that the mother’s other children are not nice to them. The mother says there is some jealousy. I am not concerned about these types of comments that the twins have made. From time to time siblings do not get on, and one would expect that at times there will be tensions between siblings, particularly when they are not living in the same household full time. They would also be needing to make adjustments with respect to Mr G’s children and Mr G being in the household, just as all blended families do.
FAMILY REPORTS
Dr S’s Family Report
The parties attended upon Dr S for the preparation of a family report in the 2016 proceedings. Both parties relied on that report in their case outlines. Neither called Dr S as a witness in these proceedings, which is reasonable. The report is useful for background.
At the time of the previous report, the mother wanted to relocate to City B. The father opposed the mother’s relocation and wanted a shared care arrangement. Dr S referred to information he had from Dr T, E’s paediatrician who had been treating E since August 2011 to note that E had been diagnosed with autism, ADHD, developmental delay and significant behavioural problems. E was attending mainstream school with the assistance of an aid, was receiving support through early intervention services, receiving occupational therapy, and will require ongoing medical and psychological support. The mother strongly asserted that City B had better medical, psychological and support services for E than City C. The mother also said she could receive better treatment in City B for further cancer treatment if she needed it. All of the mother’s cancer treatment to date had occurred in City C.
Both parents were critical and negative about the other parent. Dr S records that both parents portrayed themselves as the better parent but neither produced information to support that. He concluded that the benefits of a move to City B currently outweighed the benefits to the children having both parents and extended families actively involved given their ages.
Dr S made the following recommendation:
The comparative merits of the health, educational and social welfare facilities provided either by City C or City B should be evaluated by referral to an appropriate agency(s) within the specific context of the everyday needs of the child E, as well as possibly the parties’ two children, if not the mother’s future intensive health care needs. A professional opinion should then be provided by such agency(s) about the comparative merits of the different facilities within either City C or City B. Only then if it is objectively assessed that City B provides sufficient facilities for E’s and/or the parties’ children’s benefit to outweigh the current benefits to the parties’ children as well as E from remaining living in City C should further consideration be given to the mother’s relocation plan. In particular the children’s best interest to continue to have a physically close relationship with the father should have a stronger weighting than any other factor.
Ms W’s Family Report
In the current proceedings, the parties attended upon Ms W for a family report. As it occurred during the Covid-19 pandemic, the report is limited by the fact that the interviews and observations took place via video. The mother maintained that City B offered better employment opportunities, education opportunities for the children and better medical and other specialist services for E. Ms W found the mother to present as an assertive person and a capable parent. The mother said breaching the orders was not ideal but she was desperate at the time and felt that the problematic issues she faced in City C was having an impact on the children’s day-to-day well-being. The difficulty with the mother’s position is that she simply has not provided supporting evidence with respect to this, in spite of having the benefit of the issues being flagged in the previous family report.
I am at a loss to understand why the mother did not provide evidence in her trial affidavit to support her assertions with respect to employment opportunities and medical facilities and so on. If in fact things were as difficult as the mother claims and she required significant travel and time off work and so on, she could have given that evidence in her trial affidavit. Given that I am satisfied that the mother has exaggerated several aspects of her claims I find on the balance of probabilities that the mother was unable to adduce such evidence.
Ms W’s descriptions of the parties’ presentations to her is consistent with how they presented in Court. The mother is assertive and confident. The father is much more reticent and reserved. The interviews and observations of the parents and the children took place via Zoom. The father complains about the observation process and the length of time spent on the observation period. He disagrees with Ms W’s descriptions of the observations and says it only took place for a few minutes, not 20 minutes as claimed by Ms W. The observations took place in May 2020, a little over a year ago. Neither party sought an updated report with observations taking place in person. I am not critical of that, particularly as it would have led to further delays and in my view and in the circumstances of this case, it was not necessary. Given the parents different personalities, it is not surprising that the observations were quite different. I reject the submissions of the mother’s Counsel that the father knew what to expect from the family report given their previous experience in 2016. Insofar as the interviews and observations taking place via video is quite different to taking place in person, and some are far more comfortable with that medium than others. Ms W accepted the proposition that it is quite different to conducting the family reports in person where the family is therefore at her office on the day, where there are several opportunities for informal observations of various family members over the course of the day. However, she also said that the advantage of the Zoom interviews is that it is possible to see some of the parent’s home and the children’s bedrooms and toys. Sometimes, the children are more at ease because they are in their own home. She further agreed that the children will pick up on the parent’s shyness and reactions of the parent to an interview when those take place at her office.
Ms W did not accept that the difference between the observations would have been only based on the father’s shyness compared to the mother but said part of the observations are also how the parents help children be themselves and the capacity of the parents to make children feel comfortable and secure. Some of that can happen naturally and some of it may not happen because of the strangeness of the situation, but that is up to the parent. She said she made a note of only spending about 20 minutes observing the father and the children. She noted further that nothing was occurring and the children did not speak to her when she asked questions about schools on and when she told the father to forget about the cameras and play with the children, this did not occur. Ms W said that the children were also shy when observed with the mother but the mother made them talk. The children played and were being themselves with the mother. The mother’s interactions with the children made her think the children have a familiar, comfortable and secure relationship with the mother, which was not surprising to her given that they had been in her primary care until five months before. Ms W did acknowledge that even when the interviews and observations take place at her rooms, they are still just a snapshot.
Ms W did not see any evidence of the mother bribing the children as the father alleged. I am not satisfied that the mother did anything to tempt or inappropriately influence the children in the report.
Ms W did not view the subpoenaed material. She did read the previous family report.
The father’s Counsel put to Ms W that the mother did not produce evidence to support her claims of the children’s and her own medical needs being able to be better met in City B. Ms W said that when people give reasons as to why they wish to move, she asks questions and puts it in the report, and if it sounds reasonably plausible she will say that that she does not know whether it is true or exaggerated and that is something to be determined in the proceedings. I certainly accept that what the mother told Ms W sounded plausible and reasonable. Of course as Ms W noted the mother does not need to show compelling reasons for the relocation.
It is clear that both parents have a close and loving relationship with the twins, and the twins also have loving relationships with their parent’s partners and extended family and siblings in both households. If it were not for the distance between the parties’ homes, the twins would be able to live in a more substantially shared care arrangement which would enable both parents to be actively involved in the children’s schooling and extracurricular activities and so on. I am not satisfied that there a risk issues in either household that would preclude the twins from living primarily with either the mother or father.
Ms W agreed that her role is not to make findings of fact. It is also apparent that several aspects of what the mother told Ms W were not correct. The mother did not tell Ms W about Mr Q.
Ms W thought the father’s concerns about the travel distance and conditions driving at night and dealing with kangaroos et cetera were reasonable. The mother was more willing to do more travel. That is not surprising given the nature of her case.
The mother’s allegations made to Ms W about the father not being willing to provide support and not exercising time is not made out. Nor are allegations with respect to the father not facilitating the maternal grandparent’s relationship with the twins. The twins now also enjoy a relationship with their paternal grandparents.
APPLICATION OF LEGAL PRINCIPLES
There is no dispute that the parents should continue to exercise equal shared parental responsibility. The parents also accept that it is not reasonably practicable for the twins to spend equal time with each parent or substantial and significant time given the distance between the parties’ homes is about a two-hour drive. The case was run on the basis that the father is not in a position to move to City B and the mother is not in a position to move to City C. The mother’s evidence was clear that she does not see returning to City C as a viable option for her. The primary issue for me to determine is whether or not the children remain living in City C which means living primarily with their father or moving to City B living primarily with their mother.
Having heard all of the evidence I have no concerns about risk issues in either parent’s household. The negativity that each parent has expressed about the other in the earlier proceedings and now needed to be seen in the context of the dispute between them both perceiving the other as taking an unreasonably rigid position with respect to their proposals. I am satisfied that both parents are genuine in their positions and they believe their respective proposals are in the children’s best interests.
Regardless of the outcome, the children will continue to have a close and loving relationship with both their parents and extended family members on both sides.
Turning to the relevant s.60CC(3) factors, I do not place great weight on the views the children have expressed at various times to their parents and to Ms BB taking into account their age and maturity. Their differing views really reflect being caught in the middle of their parent’s conflict and the challenges involved in living in two very different households and having to travel to spend time with the other parent. I have no doubt that at times they miss the other parent and siblings who they are not with. I also have no doubt that sometimes they do not feel like a 2-hour drive, particularly at the end of the weekend, and that would be true for many adults. Whilst initially the mother was offering that the father have every 2 out of 3 weekends with the children if they came to live with her in City B, at the trial she recognised that that would be too much in terms of travel for the children and the adults. To both parties credit, they agreed that regardless of which parent the children live with, they should see the other parent on alternate weekends and should spend more of the term school holidays with the other parent.
The mother believes the twins are confused and that they will say whatever they say in each household to try and keep everyone happy. That is developmentally normal for the twins and is to be expected given they are well aware that their parents do not get on, and that both parents want them to live primarily with them. The situation is made more difficult because of the distance between the homes. A further complication that is not unusual is the fact that there are half siblings in both households. Given all of these factors, I do not place great weight on what the twins said to Ms BB.
I am not satisfied that there is evidence supporting the mother’s contention that the twins are confused and not coping with the current arrangements.
I am satisfied that the children have a close and loving relationships with both their parents and siblings. In addition they have positive relationships with their parent’s respective partners and their children, despite the arguments and tensions that probably arise in both households from time to time as is common in people having to adjust to blended family situations. I am also satisfied that the twins have a close and loving relationship with their maternal grandparents and also their paternal grandparents and that will continue, regardless of the arrangements.
I am satisfied that both parents have taken the opportunities to be involved in the decision-making about major issues with respect to the children and to spend time and communicate with the children. I am not satisfied that there is any substance to the mother’s complaints that the father did not take opportunities to spend time with the children and would return them early.
Both parents have taken care of the children and paid child support as assessed.
The likely effect of any changes to the children’s circumstances, including any separation from parents, grandparents and other children, is a significant factor in this case. The twins have already experienced a major change to their living arrangements, being moved to City B and moving schools, to then returning to City C but living primarily with their father when up until that point they had been in their mother’s primary care.
I reject the submissions by the mother’s Counsel that if the children remain in City C they are in fact living in Ms H’s primary care and not the father’s. Whilst there is no doubt that Ms H is significantly involved in the children’s care, it is perfectly reasonable and indeed normal for the parents to rely on assistance from their partners when they have differing work arrangements. Indeed, if the father did not have a partner the children may have needed to attend before and after school care due to his work commitments. The mother uses after-school care. There is nothing wrong with that and it does not diminish either’s role as a parent. The reality is that Ms H’s son attends the same school as the twins and her working arrangements have been such that with her working at night she has been more available to look after the children after school until the father finishes work. It is just the reality that the mother’s partner Mr G does not have the flexible work arrangements that would mean that he would be able to provide a similar level of support in terms of time that Ms H has. The reality is that both parents need to work and it is not a bad thing for children to see their parents working.
Regardless of the outcome the children will be separated from siblings and stepsiblings.
I have already addressed the practical difficulties with respect to the living and spend time with arrangements. Both parents are able to provide for the children’s physical, emotional and intellectual needs and I am not concerned about the parenting capacity of either parent.
The only concern I have with respect to the parent’s attitude to the children and responsibility of parenthood is as demonstrated by each of the parents is the mother’s actions in unilaterally relocating with the children and persisting with a narrative, both with respect to the father being violent and also the medical needs of the children. As I have indicated previously, I am not satisfied that the mother was in a desperate position when she decided to breach the orders. Rather, she was of the belief, reasonably based, that the father would not agree to her relocating and so took matters into her own hands. The mother seeks to portray the father’s steadfast refusal to agree to relocation 2016, and later when she sought to relocate to Town O and again to City B, as being unreasonable and controlling. That is unfair to the father. He is perfectly entitled to oppose the relocation and to be concerned about the impact on his relationship with the children, as well as the mother’s willingness to facilitate his relationship with the children given the mother’s actions, as I have observed previously. Conversely, whilst acknowledging the mother does not need to have compelling reasons to seek to relocate, the mother has identified several reasons as to why the move to City B benefits her and the children. She is also quite correct when she refers to the fact that she has to consider the needs of all of her children and those needs do not always align.
Neither parent raises any cultural lifestyle issues. The allegations with respect to family violence predate the previous final orders and I am not satisfied that the father has engaged in any violent or controlling behaviour since those orders were made. Regardless of the orders made in this case it is always possible that there will be further parenting proceedings.
It is not the role of the Court to punish the mother for her unilateral relocation. The only relevance of that action is what it means in terms of the mother’s attitude towards her role and responsibilities of parenthood and her attitude towards the father. I accept that the mother has long wanted to relocate to City B and move away from City C. She has many reasons, which she has identified, for wanting to relocate. It is also clear from the mother’s perspective that the move to City B has been successful. She is well settled there and has a job she enjoys which pays her a good salary. She has re-partnered and her sister has plans to move to City B which means she will have some family support there.
With respect to the family report by Ms W, I do not accept her recommendations that the children should live in City B with the mother for several reasons. The family report is one piece of evidence I need to assess. It does not have special status over other evidence. It is clear that the mother presented a narrative to Ms W which is not supported on the evidence. The picture the mother portrayed to Ms W was misleading in a number of aspects as outlined earlier. There were limitations to the report and observations taking place by Zoom as she acknowledged. Although that process was more challenging for the father the reality is, is that the twins have a close and loving relationship with both their parents. It is significant to note as well that at the time of those interviews, the twins had only been living in the father’s primary care for five months. It has now been significantly longer. It is also clear from the school records that the children are doing well. I am not satisfied that the children are struggling or unhappy in the father’s care.
The mother maintained her position in cross-examination, only making concessions when confronted with documents. The mother did not produce evidence that she was in a desperate situation leading to breaching the orders. It would have been a simple thing for the mother to address the difficulties she claimed she faced with respect to specialist appointments and employment opportunities. The mother’s conflicting evidence and reluctance to make concessions makes me less confident about the mother’s sincerity about being flexible with parenting arrangements. The mother’s failure to disclose the situation with Mr Q was concerning to me, as was her evidence with respect to Mr N. I accept that the children would adjust if they were to relocate to City B and that whilst a further change of school would be a disruption that is also something that they would adjust to in time. The reality comes down to whether or not it is in the children’s best interests that there would be a further disruption to that which they have already experienced in December 2019.
I have also made criticism of the father. Whilst I am not prepared to go so far as to draw a negative inference from the father’s failure to call Ms H as a witness, it is a significant gap in his case. They could have made other arrangements for the care of the children during the trial. I am also critical of the father’s actions with respect to calling the police about the seatbelts, and raising concerns that Mr G smokes cannabis in his affidavit, without raising it in correspondence when the twins first mentioned Mr G smoking something. If he was genuinely concerned, he would have done so.
I suspect that some of this conduct by both parents is due to the distrust between them, which was magnified by the unilateral relocation and protracted Court proceedings. Hopefully with the finalisation of the Court proceedings and the ameliorated stress, the parties will be able to focus on improving their communication moving forward, as this will benefit the children. Considering all of the material, on balance I am not satisfied that it is in the children’s best interests to change their living arrangements now.
I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 18 August 2021
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