Cord and Cord (No 2)

FAMILY COURT OF AUSTRALIA

CORD & CORD (NO 2)

[2017] FamCA 494

FAMILY LAW – CHILDREN – relocation to United States of America – where the children are aged 16 and 12 – where expert says views are not sound – relocation application dismissed.

Family Law Act 1975 (Cth)

SCVG & KLD (2014) FLC 93-582
U v U (2002) 211 CLR 238

APPLICANT:

Ms Cord

RESPONDENT:

Mr Cord

FILE NUMBER:

MLC

4542

2012

DATE DELIVERED:

14 July 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide/Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

11, 12, 13. 20 April 2017

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

Orders

That save as to any issue of costs, the wife’s application (as amended) filed on 9 March 2017 is dismissed.
Paragraphs 2 to 6 of the orders of 3 June 2013 are discharged.
The children Y and E spend time with the husband as follows:
(a)From the conclusion of school on Tuesday until 5 pm on the following Sunday in each alternate week (commencing on the next Tuesday of existing fortnightly cycle);
(b)By agreement during school term holidays and failing agreement, during 2017 and for a similar period in each alternate year thereafter, from the conclusion of school on the last day of term until 5 pm on the middle Sunday and from 5 pm on the middle Sunday of the holidays until the commencement of school in the new term during 2018 and for a similar period in each alternate year thereafter;
(c)During the long Summer holidays, by agreement and failing agreement, for one half from the conclusion of school on the last day of term until 5 pm on the day which is the halfway point with the discrete Christmas period deducted and with the husband having the first half in all odd numbered years and the second half in all even numbered years;
(d)From 5 pm on the day before Fathers’ Day until 5 pm on Fathers’ Day; and
(e)From 3 pm on 24 December 2017 until 3 pm on 26 December 2017 and for a similar period in each alternate year thereafter.
That the children otherwise live with the wife.
All fortnightly time between the husband and the children under paragraph 3 is suspended during school term and long summer holidays and shall resume in the next school term as if it had not been so suspended.
If the husband’s time falls on Mothers’ Day, that time is suspended from 5 pm on the day before Mothers’ Day until 5 pm on Mothers’ Day.
Pursuant to s 65Y of the Family Law Act1975 (Cth), the children have permission to travel internationally provided such travel is consistent with the times under these orders.
The passports of the children shall be released to the husband and retained by him and to the extent they are needed for travel internationally with the wife, they shall be released to her 7 days before any holiday period and returned by her within 7 days of that holiday travel.
IF THE WIFE CHOOSES TO LIVE IN THE UNITED STATES OF AMERICA, the children shall remain resident in Australia. As a consequence, paragraphs numbered 10 to 13 hereafter apply.
Paragraphs 3 and 4 of these orders are discharged from the moment that the wife leaves Australia to live permanently in the United States.
The children live with the husband at all times other than those set out in paragraph 12.
That save as otherwise agreed, the children spend time with the wife as follows:
(a)For up to 3 periods each year totalling 10 weeks in the United States of America during the Australian School Holidays but on condition that the wife gives the husband 60 days’ notice; and
(b)From 3 pm on 24 December 2017 until 3 pm on 26 December 2017 and for a similar period in each alternate year thereafter.
For the purposes of paragraph 12(a), each party pay one half of the travel costs of the children.
If paragraph 3(c) applies and the wife desires to travel to the United States of America with the children over the long summer holidays and the husband does not agree to suspend his time for some or all of that period, the wife has leave to apply on short notice (in early November in any future years) for a determination as to what is an appropriate period for:
(a) The children to so travel; and
(b) The husband’s time with the children to be curtailed.
If the wife lives in the United States of America and desires to visit Australia but cannot reach agreement as to what time she should have with the children in Australia, she has liberty to apply on short notice with respect to that time.
That save as to issues of costs, the husband’s response filed 2 March 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cord & Cord has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 4542 of 2012

Ms Cord

Applicant

And

Mr Cord

Respondent

REASONS FOR JUDGMENT

Orders are made in 2013

In June 2013, Mr Cord (“the husband”) and Ms Cord (“the wife”) by agreement asked the Court to make parenting orders about the raising of their children Mr F (now aged 18), Y (now aged 16) and E (now aged 12).
The present application is a dispute between the parties about how these children should be parented and the background gives context to the orders that the Court is now asked to make.
Under the 2013 orders, the husband and the wife were to have equal shared parental responsibility for the children. Parental care was divided during school term times as to five nights with the husband and nine nights with the wife.
The request for the 2013 orders occurred when both were represented by counsel so the Court is entitled to infer that both parents had advice but also that they were openly saying that the orders were in the best interests of their children.
All of those orders were made knowing that the wife had sought relief by orders based, in part, on family violence allegations. It is also important to understand that as part of their respective 2013 cases, each parent had also put in issue the parenting capacity of the other. In the background to the current proceeding, it became evident that the wife wanted to raise those matters again.
In addition to the 9:5 fortnightly sharing of term times, the children were to spend a two week school holiday period with the husband on an alternating holiday period basis. That too must say something about parental capacity concerns; in other words, the Court was entitled to presume that those issues were resolved.
In working out what orders best meet the interests of a child, the Court is mandated to consider the factors laid out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). With those consent orders, the Court was entitled to presume there were no longer issues of physical or psychological harm for the children, or concerns about the nature of the relationship between each child and each parent; or opposition from the children to spending time with the husband; or, concerns about the respective parents’ attitude to the children; or about the responsibilities towards parenthood.
Obviously, if a change of circumstances arose, there was a basis to revisit the orders. The parties were back before the courts in 2014.

Orders are made in 2014

Within days of the 2013 orders, the husband brought a contravention application against the wife. The wife responded by obtaining an ex parte intervention order against the husband in the local magistrates’ court.
The contravention disputes culminated in a second set of consent orders made at the request of the parties on 20 May 2014 and again, when were represented by lawyers.
In the 2014 orders, each party either withdrew or agreed to arrange withdrawal of, their respective contravention and intervention order applications. Significantly, there was no alteration to the 5:9 sharing structure from 2013.
Whatever the assertions were, the dispute giving rise to those applications revolved around Y then aged 13 years. The substance of the 2014 orders was to facilitate the attendance of Y upon a psychiatrist and to engage in any therapeutic program recommended. That treatment is contentious; the wife insists the husband should be involved in getting Y there whilst the husband is ambivalent about the necessity of any treatment. I appreciate that the husband is not a doctor but there seems to be substance to his view.
In the 2014 orders, the following is also found:
[2]The parties hereby authorise and instruct [Dr C], psychiatrist, to confer with each of them as to the child ([Y]).
[3]The parties do all things necessary to facilitate the attendance of ([Y]) upon [Dr C] for the purposes of a psychiatric assessment…
[4]The parties each receive the assessment of [Dr C] and be at liberty to engage in any therapeutic program recommended by [Dr C] at the discretion of [Dr C].
[The father meets the costs of ([Y’s]) treatment with [Dr C].]
This background indicates that the Court’s intervention had been minimal and as one might expect from intelligent, educated and focused parents, their interests would be on working out what should be done for their children. That has not happened here. The parties are back again because they do not agree on how their children should be raised.
The parties’ eldest child Mr F, is no longer the subject of the proceedings as he is an adult. Y and E are different from each other and the evidence indicates they are not close as siblings.
Y has health problems and at times, has been difficult to manage but he is still at school. The health problems are evident from the 2014 orders that he be taken to Dr C but how his problems are communicated between the parents is a problem as can be seen from the facts that follow.
E on the other hand is progressing very well at school, has good peer connections and gets along with everyone. She has no health issues of concern.

The treatment of Y

Insofar as the 2014 orders required cooperation between the parents to seek and obtain assistance from Dr C, the wife accused the husband of not participating and indeed, of having very little understanding of what Dr C was doing. For his part, the husband said that he had taken Y to Dr C on a number of occasions but he felt that he had not been kept informed by Dr C about what was happening. In recent months, the husband has had no contact with Dr C.
The court did not have the advantage of any evidence from Dr C. He had prepared a letter the wife had endeavoured to put in evidence but I struck that out for reasons given elsewhere. The extent of Y’s health problems and treatment (if any) remain unclear.
The poor communication between the parties can be seen in the husband’s evidence. He found antibiotics for Y (prescribed apparently by Dr C) in a bathroom cabinet at his home about which he knew nothing. There were tablets for an acne problem about which he knew nothing. The wife did not notify the husband of Y taking either of those drugs.
Another matter was more alarming. Y indicated suicidal ideation and the wife was aware of it. Rather than contact the husband, she expected Dr C to communicate his concerns. It is hard to imagine how such important issues could be treated that way keeping in mind the 2013 and 2014 orders.
I find that the wife can communicate on a variety of issues (as will be seen from some of the material below) yet on such significant issues, she effectively ignores the husband’s role in Y’s life.

The 2014 injunction

In 2014, despite the consensus earlier mentioned, the parents still required the court to make injunctions albeit without admission (whatever that means in the context of s 60CC principles) restraining each other from doing such things as collecting the children from school on days when a child was not in their care; discussing proceedings in the presence or hearing of the children; abusing, denigrating or otherwise speaking badly of the other; attending at the other’s premises without prior written invitation; and, then, the following:
Save in the event of an emergency or upon referral from a medical practitioner named herein taking the children or any of them to any other medical professionals and allied health professionals.
Ironically, in 2013, the parties had consented to an order for equal shared parental responsibility. That order was never going to be successful and the injunctive orders in 2014 point to that.

The main issue: Relocation to America

In August 2015, the wife asked the husband to agree to her relocating the children to the United States of America. The husband did not agree. The wife then filed the application that now brings the matter before the court.
The wife’s position was (and remains) that if the court does not permit her to take the children to America, she will leave them behind. She intends to leave Australia by 31 July 2017. She said in final address, that her emotional and psychological health will not permit her to stay and her family in America is very worried about her. Unfortunately, there is no evidence to that effect.
The affidavit evidence presented by the wife was prepared by lawyers who acted for her until immediately prior to the final hearing. Her written evidence was largely unhelpful.

Background of the parties

The wife is the applicant. She was born in the United States of America.
The husband is the manager of his parents’ business. He is 43 years of age and has remarried.
The husband and wife married in 1997, separated in 2010 and divorced in 2012.

The proposals of the parties

The wife sought orders that she and the children move to the United States. She proposed that the children spend time with the husband in Australia every second Christmas holidays for 14 days and each June/July school break for five weeks. Each of those proposals would not be implemented until 2018 and thus in respect of the two week Christmas holidays, the husband would not see the children in Australia until the end of next year.
Insofar as travel costs were concerned, the wife proposed that she be responsible for the children’s costs of travel backwards and forwards between Australia and the United States.
The wife further proposed that if the husband came to the United States, he could have nine days with the children but that was subject to the approval of the children’s school. That restriction would be inappropriate having regard to the inability of the parties to communicate. That is particularly so in this case because the parties dispute the meaning of the orders they previously agreed upon about holiday time. It is a matter for the court to decide the relationship between children and their parents not the school.
Insofar as there would be breaks between physical contact under the wife’s proposal, she also suggested that the children have “open communication” with their father electronically. Other orders were proposed that do not immediately matter.
The husband’s position was that the wife’s application should be dismissed. He sought orders that the two children live with him from 3.30pm on Tuesday to 5.00pm on the following Sunday in each alternate week. That is the same number of days as exists under the current orders but with a different construction. In respect of holidays, the husband sought orders to share the care of the children but with clear wording to avoid the problems of the past.

The wife’s outline of case

It is obviously to the evidence that the court looks for a determination but to define the issues in dispute here, the wife had the benefit of counsel drawing an outline of what would have been her argument. The document asserted that having regard to her intention to relocate to the United States irrespective of whether the children were allowed to do so or not, the only possible outcomes open to the court were either to permit the wife to relocate or for the children to live permanently with the husband in Adelaide.
The outline of argument made reference to a number of witnesses whose evidence was not before the court.
The document then said that a court should be concerned with respect to the husband’s engagement with the children over time and their level of emotional attachment to him. I do not understand what evidence was being promoted to justify that assertion but it did not form part of the wife’s case. I certainly express no such concern.
It was then asserted that the husband had not sought assistance to address a problem with the children. Again, it is hard to know what the author intended.
The document asserted that the wife had been the children’s primary carer and that the children were emotionally attached to her and dependent upon her. I return to such rhetorical language later in these reasons but that was unhelpful when on the wife’s own evidence, there had been a significant split of the children’s time each fortnight.
The conclusion was that the children “draw most of their emotional sustenance from their mother”. That rhetorical flourish has no place in an outline unless it is supported by fact. None was indicated here. As I shall explore, I am concerned that these children have been placed in a terrible situation of being responsible for their mother’s happiness and been told that if the court does not make an order for them to relocate, she will go without them. The emotional “sustenance” was missing.
The outline of argument addressed that last point by stating:
It is submitted that there are significant concerns about the emotional wellbeing of the children if they were to be separated from (the wife) and live with (the husband).
Finally, it was submitted that the wife’s emotional and psychological wellbeing would improve if she returned to the United States. No such evidence supported that assertion.
I stress that I have not determined the matter other than on the evidence but in this case, I can understand a self-represented litigant relying on the advice she has received only to find that those responsible for the drafting had not provided the necessarily admissible material.
The wife’s self-represented status was unfortunate because the husband was represented by senior counsel. I explained the process to be followed and that the Court could not run her case for her but rather had to endeavour to provide a level playing field. She indicated a desire to proceed no doubt with an eye on returning to the United States in July.

School holiday orders

If the wife went to the United States, any contention about school holidays would be resolved because times would have to be refined anyway. If the wife remains in Australia, the problem needs attention.
The respective understandings of the school holidays has entrenched the parties in their dispute and reduced their capacities to agree on anything.
On 13 June 2013, this order appears:
[2(b)]The children live with the husband:
(b)for a continuous two-week period each alternate school term holiday period as agreed and in default of agreement, that same to commence in the September 2013 school term holiday period and alternating thereafter.
It is the husband’s view that every alternate school holidays, he has the children for two weeks but in the other school holiday periods, the parties revert to the then 9:5 arrangement. The wife disagreed.
In March 2016, the wife attempted to “arrange school holiday time” by text and referred to the father’s time as “two week chunks as per normal”. She produced text messages and the husband responded. This was the sequence:
HUSBAND:I need to work out school holidays. Nothing is agreed upon so a plan has to be sorted.
WIFE:School holidays are in two week chunks as per normal.
HUSBAND:I need to know what the plans for these holidays and the next. I need to approve the plans.
WIFE:Check the email for plan. It’s a flip of last year.
HUSBAND:Any emails about holidays were for Christmas. I haven’t agreed to anything else.
WIFE:The plans are opposite of last year, and in accordance with orders.
HUSBAND:I have to authorise the holidays they have to fit my schedule.
WIFE:The orders were agreement. No authorisation required.
HUSBAND:You need to let me know what the plans are. And I will decide if they work. Otherwise you will find yourself having to get a sitter.
WIFE:I have no idea what you are talking about. Refer to the email – the whole year was set out until our expected move date in August-September. We will have to complete the plan from that point.

That communication resolved nothing. The husband ended it by indicating that the continuation of the wife’s texts was “harassing” him.
The wife set out her proposal for the holidays as did the husband but even the lawyers could not agree on the meaning of the orders. In a long letter dated 10 May 2016, the husband’s lawyers wrote what they understood their client was agreeing to and then ended the communication by saying that their client was expecting to have the children on the following day and if that did not occur, he would issue an urgent contravention application without further notice. They ended the communication with a sentence that costs would be applied for if that application was necessary. That communication was unhelpful. If no objective discussion was likely based on the history, the solutions were to obtain assistance from a social scientist as to what was good for the children or alternatively, return to court.
The wife responded by indicating that there were “discrepancies and inconsistency” as there was no “clarification” about the arrangement. She contributed to the problem.
The children were not only aware of their parents’ confusion and conflict but also that their mother wanted to go to the United States.
The child E in particular was drawn into the conflict. The wife volunteered having found E’s diary. Although not “discovered” in the legal sense, each party wanted to use it for a different purpose. From the wife’s perspective, it indicated that E was distressed that she had to go to her father because she wanted to be with her mother. From the husband’s perspective, it showed that E was embroiled in the interpretation dispute.
The diary only contains a small number of entries but the significance lies in the dates. On 12 October 2016, E wrote that she felt angry about having to go to her father’s home “even though we are meant to stay at Mom’s all these holidays and Dad’s not letting us stay with Mom”.
On the following day, 13 October, E wrote that she felt her mother made her feel special and “powerful” and that she could talk to her mother about anything, unlike her father. In large letters she then wrote that she hated her father. She repeated that she had wanted to be at the home of her mother because she was “meant to be” there during the holidays.
On 14 October 2016, E wrote that she was glad that she was returning to her mother’s home and that she had her “fingers crossed” that her father would let her because if he did not, she would “hate him forever”. The diary went on to refer to her desire to move to America.
The diary entries were written only about two weeks prior to the interview with the family consultant for the purposes of these proceedings and I accept the husband’s position that by the time E went there, she was empowered by her mother to the point of being an advocate for her cause.

The family consultant’s views

Ms G is a family consultant who was tasked with providing expert advice to the court. She saw E on 4 November 2016 and wrote that E stated that she liked being with her father but it was not the same as being with her mother. Although E said that she could not tell her father everything, she could not explain why. She acknowledged that her father attended some of her special events. E said that she wanted to relocate with her mother to America and that her mother was always there to keep her company. The family consultant then reported at:
[75]([E]) went on to say “Mum wants to go to America because it is hard for her here and I want her to be happy”. Adding with increasing tears and sadness in her eyes “it would be hard to leave Mum…Mum told me she needs to go to America…
E said that she would ask her father if he would let her go and that she did not know what she would do if she could not go.
The evaluation by the family consultant was that a level of caution was needed when placing weight on the “disclosures” of the children given their “more mature ages”. However, she said that it was important to take into consideration their opinions regarding future parenting arrangements.
The timing of the appointment with the family consultant, the diary entry and the confusion about the holiday periods meant that E was aware her mother’s views. The use of the words “Mum told me she needs to go to America” indicates that E had felt she had a responsibility for her mother.
E was embroiled in this dispute and it is clear that she was not protected from it by her parents. That can be gauged from E’s words “it would be hard to leave Mum”.
I find that it was the wife who engaged in discussion about this rather than the husband placing emotional pressure on E. There is no evidence of any discussion by him with E about the holidays.
It is particularly important to know that E understands that her mother is willing to go without her if the Court does not agree to the move.

E’s view about America

Consistent with E’s understanding of the school holiday problem, there is no dispute that the wife spoke to E (and the other children) about her desire to go to America permanently. All children indicated they understood their mother wanted to go because she was unhappy and they anticipated her move would resolve her unhappiness.
It was the wife who asked the family consultant why the children held the views that they did and whether they should be given weight. The family consultant opined that the children were very much aware of their mother’s unhappiness and that they would feel happier for her to go to America and therefore they were supportive. She added that the children would feel guilty if they were holding their mother back and the best way to feel free of that guilt was to be supportive. This also was a way of the children avoiding conflicts between their parents.
With that observation, the family consultant cautioned about the weight to be given to the views of either child because in her view, they could not appreciate the benefit of any long term arrangement.
The family consultant was aware that the wife was intending to go to the United States with or without the children and that gave rise to the note she made of E:
Adding with increasing tears and sadness in her eyes ‘it would be hard to leave Mum…Mum told me she needs to go to America’…
The children were distressed by their mother’s views or more particularly, the way those views were portrayed to them as she needing to go for her happiness. Insofar as the wife’s emotional or psychological health underpins or affects her approach to needing to go to the United States, there is no evidence upon which the court could make a finding that her psychological health is at risk.
Notwithstanding the wife was given the opportunity to present that evidence, she failed to do so and she declined and/or resisted any suggestion of an adjournment.
The expert and unchallenged evidence of the family consultant about being cautious on the views of the children is accepted as supported by what she was told.
The children know the wife wants to go to America because it is a solution to their mother’s unhappiness. I find the wife has unnecessarily embroiled the children in this dispute.

The husband’s position if the wife leaves the children

In his reply to the evidence of the wife, the husband said at [161]
Should (the wife) relocate to the United States without the children, [Ms H] (his wife) and I are willing and able to care for the children on a full time basis and will facilitate travelling to the US to visit their mother up to twice per year during school term holidays, or spending time with their mother during (the wife’s) visits to Australia (if any).

Three proposals

The outcomes for the parties are:
(a)the wife goes to the United States with the children and accommodates the husband having time by returning to Australia at her expense twice per year;
(b)the wife remains in Australia and there be no change to the amount of time spent by the husband with the children but it otherwise be configured differently to the existing orders; and
(c)the wife moves to the United States and the husband cares for the children and accommodates the wife’s time with them by sending them to the United States twice per year.
Neither of the proposals (a) and (c) could be defined with any precision but it was acknowledged by both parents that any such time would have to revolve around school holidays.
Proposal (b) is premised on the basis that the parties continue their relationship in Australia but with times described by the husband as being more advantageous and less disruptive for the children. The wife inquired why change the existing arrangement and he explained that his proposal was a smoother transition for the children. The wife did not seem particularly interested in the proposal but in any event, if she went to the United States without the children, any local alteration would not affect her.

In 2015, the husband thought there was nothing wrong with Y although he described his son as having “issues”. He said he had not observed his son to be violent or to have behavioural issues when in his care. That was consistent with the evidence of the husband’s wife Ms H who said that she had developed “a close bond and relationship of trust” with Y and it appeared mutual. She said both children sought her out when they were unwell and she enjoyed helping them with their homework. In the absence of the husband travelling for work, she has cared for them. It was not suggested the absence of the husband caused problems and, as Ms H also currently has employment which takes her away from the home, nothing was said that suggested that the husband has not, or could not, care for the children alone. That too is consistent with the 2013 and 2014 orders where these capacity issues seemed to have been resolved.
Ms H also has children and she described them mixing well with Y. This evidence was not challenged by the wife. Rather, the cross-examination by the wife focused on how Ms H would manage those domestic and parenting matters with the employment obligations she had as well as those of the husband.
Ms H set out how she and the husband discussed with Y visits to Dr C. Y described nothing much happening because his mother talked all the time and he found it boring. She spoke to Y about the anti-depressants she had found and doubted that Y thought he needed them. She thought he was progressing well at school. Nothing in the evidence suggests otherwise in the husband’s household.
I find in terms of the physical and emotional care of both children that the husband has all of the attributes to be able to provide for the children. The unchallenged evidence is that Ms H was able to talk Y through the issues and she had no difficulties in his management. Her evidence corroborates that of the husband that Y was not a problem in their care. The wife’s evidence was that Y’s acne was affecting his self-esteem and he was being bullied at school. She was not challenged about that evidence but I also have the evidence of the husband’s wife indicating that Y’s progress at school has been fine. The wife went on to say that the effect of the acne prescription had been “excellent” for Y. One must presume therefore that it is no longer a problem.
Things are not so clear and simple in the wife’s household. She described Y as being diagnosed with anxiety and depression and having a specific learning difficulty.
In April 2016, the wife was having difficulties with Y. She described “behavioural issues” during which Y punched a hole in the wall of her house when she tried to remove his “play station” from his room. Her response was to contact the husband and indicate that she needed his support because her view was that Y had to face the consequences of his actions and behaviour. She wrote to the husband:
I can’t allow him here until he does that - - - please have at talk with him to discuss being accountable and responsible.
The husband’s response was to say that Y was “a good kid” and that the wife just did not understand him. He saw her as part of the problem but he then co-operated in taking over Y’s care.
There is no evidence about what triggers the sort of behaviour witnessed by the wife but I find there is no evidence of a problem in his care by the husband.
The parties disputed whether Y was with the husband for all of March-June 2016 or only for part of the time. The wife relied upon a calendar which she marked the various days that Y was in her care but it appears that the husband was doing exactly the same and he gave evidence that he had reverted to his calendar to work out the times.
Whatever became the explanation for Y being with his father, two things may be accepted. First, the wife relied upon the help of the husband and my earlier observation about parental capacity cannot be arguable. The second is that for a substantial portion of the time, Y did stay in his father’s care or that of his grandparents.
The wife acknowledged that the husband had been the carer of Y for that period but she produced letters from the child support agency to show that the husband had made an application for change of the child support regime because he was taking on a greater role. The agency rejected his application but the wife saw this evidence as indicating that Y had not been changing houses as described by the husband.
In my view, the evidence about early 2016 was a distraction from the real issue that Y went to his father because of some difficulty with his mother and spent a significant period of time there. He kept in touch with the wife for some of those days.
Both parents say that Y does have problems at times. As an example, when this case was transferred from the Federal Circuit Court in March 2017, the wife explained that she remained at the court building to converse with her counsel. Whilst there, she received a text message from Y in very blunt language saying he was not happy that the proceedings had been put off by the Court. That evidence was intended to show that Y wanted to be with her and to go to the United States and that even in the husband’s care, he was showing dissatisfaction.
When the husband was cross-examined about how he came to know that the case had been adjourned, he said that he had not spoken to Y about the putting off of the proceedings but it was conceivable that his wife did but he did not know the precise details of the conversation. I take into account that Y is not far from adulthood. As I understand from the wife, he can soon obtain a licence to drive a car. It beggars belief that he would not have inquired what was happening in his parents’ dispute. He is of an age where he is entitled to know about his future. Whoever told Y, my conclusion is that he wanted the conflict ended.
The family consultant interviewed Y in November 2016. Y confirmed that sometimes he became angry playing “X Box”; he admitted hitting a wall more than once. He felt angry over having struggles with his family but that he was not angry with his father “anymore” and he felt sad that it was difficult to talk openly with his father. Having observed the husband, I would best describe him as not the most effusive communicator that one might meet. His counsel conceded as much. However, nothing in the evidence indicates that the husband’s relationship with Y is anything other than a caring one and Y enjoys being with him.
Y told the Family Consultant that he wants to be with the wife and hence anticipated going to the United States.
The family consultant described Y as an emotionally sensitive young person struggling with a sense of underlying sadness. Whilst saying he wanted to be with his mother presumably in the United States, he said the existing parenting arrangement of five nights per fortnight was “fine”. He distinguished between the way in which he communicated with his father and with his mother.
As for his own perception of his psychological health, taking into account how focused on this issue the wife was, Y felt that he “no longer” had depression.
Y told the family consultant that he and Ms H hardly spoke but he described her: “she’s pretty cool” and added that it was “nothing personal”. In his language, they did not share a great connection. That might be seen inconsistent with the evidence of Ms H but I also take into account his teenage approach to things may have accounted for that. Ms H’s description of Y’s relationship with her son and his approached in need to her tell a different story. His description of her as “pretty cool” sounds more like a teenager talking.
Y’s “first choice” was to live in the United States; he understood his mother wanted to relocate with him or without him. Of such a move by him, he thought a relocation would be a good change but it would also be good for him and his mother to be closer to her family.
Y’s alternative was to remain in Australia and without his mother, he would only have his father and, in his view, that was not the best way to “grow up”. It apparently did not occur to Y that if the converse was true, he would not have the benefit of his father. Travel posed no concern for Y at least back to Australia over the various summer breaks. He thought that he could envisage himself living independently by the age of 18 years which is only two years away. However, if he was to live with his mother, he would likely remain dependent upon her beyond that age.
There is no evidence of Y causing problems similar to those of 2016. Y says he has no mental health problems and there is no evidence from Dr C to say otherwise. Despite prescribing anti-depressants, Y does not seem to be taking them. Notwithstanding there is no manifestation of any problems and Y’s strongly articulated voice to the Family Consultant, both parents, but particularly the wife, say there are health problems. My concern is that Y is understood to be a strong-willed young person who has found a stable environment with his father. Being in America would deprive him of that stability. In addition, there is the evidence of the Family Consultant about taking cautiously what these children say.
The wife asked the family consultant about the impact upon the children of leaving them behind if she went to the United States. The family consultant’s response was that it was a difficult decision and she saw merit on both sides. She added that if the court found the father was not active as a parent, not a good role model, or could not provide care, then the children should not be primarily in his care. Her view was that on what she saw and read, the husband had been a committed and active parent in the lives of the children. On the evidence I have heard, I accept that that is the case.
Y needed both parents cooperating together according to the Family Consultant but bearing in mind the opening parts of these reasons, and the reference to suicidal ideation, it is not happening and would not happen if the wife went to the United States. In the United States, the Family Consultant considered there were so many things that could not be provided to both children but particularly for Y if the wife needed respite. I accept the expert’s evidence.
I take seriously the expert’s view to approach the views of the children cautiously in terms of weight but I also take into account that the wife has manipulated them to the point that they feel responsible for her and feel guilty about her happiness.

E was described by the wife as socially excellent, having “good insight and intelligence” and was friendly and thoughtful with lots of friends. In 2016, she was the house captain at school.
Despite that rosy picture about E, the wife doubted it was accurate by reference to the diary. I find the diary indicates a child embroiled in her parents’ dispute and caught in a loyalty contest exacerbated by the wife’s blunt manipulation that she is going with or without her. I do not accept that E is an unhappy child because all of the school activities indicate the opposite. Whilst this Court constantly predicts what will happen to children, nothing here would enable me to predict how E would manage the transition into the United States particularly if she did not have access to her father. The period of the shared parenting arrangement made in 2013 and unchanged since then means the Court should be very cautious about departing from a formula which the parties promoted. Little if anything, has changed.

The husband’s view was that absent the wife, he would manage any impact on E. In his less than enthusiastic way of describing things, he said that he would sit down and talk to E. Ms H was more forthright. She said that she would comfort E and reassure her as well as provide security. I accept Ms H is a supportive parent.
The role and importance of Ms H is not to be ignored. The family consultant observed E was teary particularly when expressing her “fear” about her mother’s potential absence. Like Y, E expressed the desire to be with her mother. The Family Consultant was able to distract E who composed herself prior to returning to the waiting room. All would have noticed that E had been crying but it was Ms H who stood, walked over and sat beside E and, in the words of the Family Consultant, “comforted her effectively”. E appeared familiar and comfortable with that emotional response and shared affection.
Ms H spends 19 days of every month out of Adelaide either visiting her children in Sydney or fulfilling her employment obligations. When challenged by the wife, in respect of her employment being a handicap, she said that if there was a need for her to work less to care for Y and E, she was not only able to be flexible with her work schedule but also willing to leave her occupation. I found her a very impressive witness.
The difficult question remains as to how much weight to give to E’s views.
It was the wife’s case, no doubt prepared for her by her former lawyers that had the mantra through it that she had been the “primary carer” of E. That type of language has often been used if proceedings of this nature and it should be carefully considered because of its rhetorical nature. What does it mean in respect of E when, in 2013, there was an agreement that there be a “5:9” split of time.
The Court is entitled to presume that “primary carer” could mean greater time with one than the other parent, but one has to look at what role each parent fulfilled. The evidence here does little to assist. I am satisfied that the absence of any challenge to the husband’s capacity means that he had a significant role in E’s life. That arrangement has subsisted for a number of years now and these children know little else. It is the wife who wants to change that based upon her assertion as to the need to leave Australia yet without evidence that would give me any indication that her continued stay in Australia would create difficulties for her parenting.
The wife gave evidence of how she saw her “primary parenting” role and as an example, on one occasion, when she wanted the husband to take responsibility for the children, he retorted that he had to work. I would not draw an adverse inference against him for that because the wife had to call upon him in relation to Y when she needed assistance.
I consider that the impact upon E will be distressing but one the husband is capable of managing.

How does the wife view the husband as a parent (assuming she may be leaving the children with him)?

The wife thought of the husband at best as “disengaged” and “perhaps uninterested”. Nothing in the evidence of the husband and in particular, the cross-examination of him by the wife, supports such a conclusion. He certainly disengages with the wife but I find he assists if required.
In one of the holiday period disputes arising from an interpretation of orders, on three occasions, the husband offered the wife the opportunity to care for the children and she refused. Yet in the same period of time, she was accusing the husband of not complying with his obligations.
Despite the role the husband fulfils, the wife fails to recognise his importance in the lives of the children. I accept his counsel’s submission that he had slipped into a line of least resistance which is evident by his refusal to speak with the wife and any electronic communication is cursory.

What is in the United States for the children?

In her evidence, the wife referred to schools that she had contacted in City J. Curiously, when the subject of her desire to move to the United States was first raised by her with the children, she indicated that they could choose where they wanted to go. Y chose City K. The wife has now chosen City J.
With much of the focus on the health of Y, the wife said she had made contact with a Dr L in the United States. I am sure that nation has ample medical facilities but as to this person’s capacity, capability and expertise, nothing was provided in the form of admissible evidence. Nothing was said about why that attendance was necessary given that all seemed well for the best part of the last year and in particular, Y’s statement to the Family Consultant.

Submissions and discussion

Senior counsel for the husband proposed two sets of minutes of orders upon which the wife did not comment (nor could she because of her unwavering approach is that she is going to go to the United States whether the children go with her or not). The husband proposed that she be given an opportunity to make various decisions about what suited her and the husband would fall in.
Senior Counsel for the husband submitted that although there was a dispute about school holiday orders, there was ample evidence to show that on other occasions, agreement was reached. One such example must be seen when the wife called upon the husband to assist her with Y.
It was submitted that s 65DAA required the court to look at the concept of equal time being in the best interests of the children and reasonably practicable but only in circumstances where one of the parties sought it. That was not the case here. The court was then obliged to look at substantial and significant time. It was submitted that obviously, it was best if the parents were in the same city and that the children would benefit from the time proportions that were currently enjoyed which reflects the definition of substantial and significant time in the Act.
It was submitted that by maintaining the status quo, the stability of the children was enhanced and that the arrangements that had been in place since 2013 would continue. That would enable the continuation of the peer and school arrangements not to mention the various extended family members in Australia. All of the evidence pointed to the fact that E was thriving and it was submitted there was no basis to say that that was not preferable to any other alternative such as the United States about which there was considerable uncertainty.
I accept the submission from the husband that the present arrangements provide consistency and stability and would not be any problem for these children but for the conflict between the husband and the wife and now, her desire to leave Australia.

Family Violence

The wife asserted that the husband was “verbally, emotionally and physically abusive” towards her and that she often lived in fear and suffered depression. There were some appalling text messages she received from the husband and Ms H. Both conceded they should not have been sent.
Subsequent to the 2014 orders there have been no such incidents. Subsequent text messages only became heated because the wife persisted rather than stepping back and allowing some other method of resolution to be adopted. She suggested mediation as her preferred method of solving problems but the husband would not participate. She tried to get him to go to mediation over the holiday dispute. As I earlier observed, it would have been better to have gone back to the court to get the problem solved because of the state of the impasse.
For his part, the approach of the husband was to disengage and thus, negotiation was pointless.
There have been no confrontations between the parties otherwise. I find in the circumstances that there is no explanation as to why the wife adopts the view that she continues to feel emotionally the way she does. I do not find that the wife has been subjected to sustained family violence.

The wife’s submission

The wife acknowledged that there really were only two possibilities because she is definitely leaving the country. Her view was that the children’s view should be given weight and despite their age differences, their wishes should be followed. I reject that but will give their views some weight. That concept has to be balanced against other considerations to determine what is best for them.

The wife’s proposal examined in light of the evidence

The existing parent and child relationship has been extant for some years; it appears regular and provides routine for the children. If implemented, the wife’s proposal would radically change that. The children would come to their father at Christmas but not until 2018. They would not see their father for almost a year unless he travelled to the United States for the 9 days proposed by the wife. That proposal, she would have the Court accept, is subject to school approval. Her desire for the 2017 year to be with her family in the United States is commendable but it ignores the gap of separation from the husband. That indicates her view about the importance of the husband’s relationship with the children.
The financial implications of international travel are self-evident. The wife provided no evidence upon which I could confidently presume that what she proposed could be implemented even if she obtained some sort of work in the United States. In addition to air fares, there are costs associated with travel to and from airports.
With such a radical change in the existing arrangement which must currently be seen as good for both of the children, what would the Court be sending these children to? In addition, there is the vexed question of how well Y fits into his father’s household but tests the resolve of his mother.
Perhaps unusually for an international relocation case, these children have a dependence upon both parents. The evidence does not support a conclusion that living with their mother and with irregular physical contact would be better for them. I have no understanding of how electronic communication would replace the current arrangement but I am not convinced by the wife that she would be positive about ensuring the commitments on a weekly basis would be implemented.
Thus, the wife’s proposal has uncertainties.

Section 65DAA

It was submitted by Mr North that the court had to contemplate s 65DAA because an order for equal shared parental responsibility had already been made and indeed was being sought by the wife. In my view, it is not necessary notwithstanding the mandatory nature of the wording of s 65DAA because the parties did not litigate the case on that basis nor was the evidence directed towards time-sharing of the children. It has always been the husband’s case that there should be no change in that time element between he and the children and he has always acknowledged that the five nights per fortnight enables him to fulfil the necessary definition of substantial and significant time.

No order for Y?

I questioned whether, having regard to Y’s age, no order should be made as he is approaching adulthood. Both parties resisted that. Y does more or less what he desires; is able to be granted a driver’s licence and could leave school if he wished. I have accepted that orders are necessary because the wife thought that it was better for “control” purposes that decisions were made for Y by a parent. I accept it is proper to make an order in Y’s case.

Legal issues

Section 61DA of the Act provides that if the court is to make a parenting order, it must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. Because of previous orders, it is unnecessary for me to consider the presumption again (SCVG & KLD (2014) FLC 93-582). Despite my concern about the level of communication, neither party strongly advocated for a change.
I find no basis to depart from shared responsibility.
The parenting must be determined on what is in the best interests of the children. Their interests are not the only consideration but they certainly are the paramount consideration ahead of the desires of their parents.
Whilst parents have a right of freedom of mobility that must always give way to the welfare of a child if the move adversely affects the child’s interests (U v U (2002) 211 CLR 238 at 89). Accepting that the wife’s desire to move to the United States does not require a reason or justification, I find she is putting her interests ahead of those of the children. Her interests must give way.
Without the children remaining in Australia, they will not have the benefit of a meaningful relationship with both parents. The wife has little regard for the husband. I find that if she would not promote any relationship between the children and their father. She has a poor view of his interest as a parent (as she would see it) but there is her willingness to manipulate the children to get her way. She indicated that if they went with her, the children would not spend the forthcoming Christmas period here because she considered it more important for them to have time with her family.
The wife’s financial position such as to give confidence about her prospects of funding any contribution to the children’s travel was uncertain. That uncertainty leaves me unsure about what sort of relationship E would have with her father; if he wanted to see E, he would have to arrange the travel. With the present arrangement, I can be confident that a meaningful relationship can be fostered but I have strong doubts if the children went to the United States to live.
I have given consideration to whether or not the husband could move to the United States too. That is impracticable because of his marriage and the fact that Ms H’s children are in a shared arrangement. The husband is in a family business position. It would not be reasonable to expect him to alter his lifestyle. In addition, the children have peers, school and other activities in Adelaide.
The determination of best interests’ principles is guided by s 60CC of the Act. By reference to those provisions, I have made the findings that follow.
Each of the parents maintains there is a meaningful relationship between them and the children but the provision requires the court to consider the benefit to the children of that relationship. A change proposed by the wife would alter the nature and extent of the relationship of the children with the husband and his significant role in their lives.
Here, I find is no evidence that the children are in need of protection from the exposure to family violence or abuse. Since the last orders, the parties have had little to do with each other.
Section 60CC(3) requires the court to consider the views of the children. I accept the advice of the family consultant to be cautious about placing too much weight on what the children want. That view is not maturely-held because they feel guilty that they should support their mother. The court should not follow their views here.
Section 60CC(3)(b) requires the court to contemplate the nature of the relationship of the children with each of the parents and also other persons. These children have a loving relationship with both parents. Each is different in form and depth. The foreshadowed absence of the wife, on the evidence she has provided, does not justify a change in the status quo. The current arrangement is working for the benefit of both children. Y seems now to be doing well at school as is E.
Y is 16 but all agree he needs control. On the evidence, I find that the stability of a relationship with his father and his step-mother is important to instil discipline and routine. Y gravitates towards his father when he has problems with his mother. In the United States, that would be missing, as would the potential for respite which the mother needed in 2016.
I am satisfied that the relationship between the husband and Ms H and E is also close. Whilst the relationship is currently sound and unlikely to be lost, it is the benefit of that relationship seen in stability, security and routine that would no longer be available. Those benefits would be lost.
The evidence about the children’s brother Mr F is scant. He attended the Family Consultant but it appears he is working for the husband’s business and intending to study and travel. Nothing indicates separation of the children from him would make a difference to them.
Sections 60CC(3)(c), (ca), (f) and (i) examine how each of the parents approaches the task of parenting. The husband has the ability to care for the children and at each of the hearings, he has maintained his involvement. Whilst he appears to have an executive role in the family business, I find he is capable of meeting the needs of the children in terms of time.
For the purposes of s 60CC(3)(j), despite family violence being an issue from the wife’s perspective, the 5:9 arrangement was not altered in 2014. Indeed, the wife consented to the continuation of the arrangement. Family Violence here is of no relevance to the determination.
Section 60CC(3)(d) and (e) focus on how any changes impact upon a child. Departure by the wife without the children will be distressing for them but I remain confident the husband can meet their material needs. Whether their emotional needs can be met is something yet to be seen.
I also find the husband would promote the relationship of the children with the wife and ensure electronic communication but also physically by promoting their trips to the United States. I do not have the same confidence about the wife in the reverse and particularly where I have reservations about her financial capacity to fulfil what she offers.
Section 60CC(3)(l) also requires the court to contemplate making an order which, if possible, will bring an end to litigation. The parties have been litigating for a number of years. Prior to separation, they had counselling which was unsuccessful. It is time for these children to be removed from the conflict between the parents. Y has only two years of childhood ahead and no doubt will make his own decisions one way or the other. E is still vulnerable and needs care but also the security and protection that a parent must provide. These orders therefore must contemplate the next six years of E’s childhood and no doubt Y will make up his mind about what he wants to do in the future in any event.
When all of those factors are taken into consideration and in particular, the doubt I have about the potential for implementation of the proposal of the wife, the balance of probabilities favours an order being made that the children remain in Australia.

What sort of orders?

I accept that the appropriate and proper way to deal with this particular situation is to set out orders if the wife remains in Australia that reinforce the nature of what these children have experienced over the last few years. If the wife leaves Australia without the children, a different set of orders should apply such that the children would have time both in Australia and in the United States with her.

Additional orders sought by each party

I have constructed a set of orders contingent upon her remaining in Australia and indeed, in Adelaide. If that is the case, the only need for an alteration is in respect of the wording of the existing orders. I accept the husband’s position that the week time orders need some clarity.
The husband’s position about holiday time was that the week-about arrangement should continue during term holidays. He maintained summer holidays should not be treated differently. I disagree. The children should have the benefit of parents planning holidays based on the number of days of the holidays. The parties wanted permission to take overseas holidays but with the unlikely prospect of agreement, a default position is necessary. I see no reason why these children should not be equally shared during the holidays; they share during time the school terms (albeit not on an equal time basis).

Summer is a long period of time depending upon schools. The wife wanted the husband to have 14 days predicated on her living in the United States. For the reasons that I have set out, that is not best for the children.
On the basis that the wife remains in Australia, and she desires to holiday in the United States, she would have to reach agreement with the husband. I have little confidence about that prospect being compromised.
Thus, if there is no agreement, the default position should be that the holidays are divided equally. The husband maintains he can fully care for the children if the wife leaves and I conclude he can manage longer periods than a weekly arrangement. In addition, Ms H indicated she would give up work if necessary.
Having regard to the ages of these children and being unsure what the wife will do, I shall make specific provision in the order for the wife to apply on short notice if she desires to travel to the United States during the long summer holidays and no agreement eventuates. If the wife lives in the United States, whilst it is important that the children have some time in the United States, they also need time with their father over the long summer period.
The only solution is to provide for an appropriate application to be made in November of any year, so that the matter can be accommodated.

If the wife chooses to live in the United States

If the wife leaves, paragraphs numbered 10 to 13 of the orders shall then apply. The orders earlier mentioned would be redundant and from that moment, the children will live with the husband.
Notice provisions for these parties are likely to be problematic although I suspect the wife will want the children to come to the United States. 60 days’ notice of her intention is necessary to allow all to make arrangements.
The husband proposed an order that he be permitted to take the children overseas for a period of up to two weeks twice per year during holidays. Whilst it is important for the husband to spend time with the children during holidays, it will be more important for them to have time with their mother exploring her new life when she will otherwise be absent. Quality is more important than quantity. The wife should have first call for that but if she does not give 60 days’, the husband can presume he make plans. 60 days is not far off the equivalent of a term of school time so that should be ample.
If the wife decides to come to Australia to visit the children, the parties will need to reach agreement. I am unable to craft an order that provides either some certainty or indeed a default provision, and as a consequence have included the possibility of that being disputed. It is therefore covered by the liberty to apply clause which can be seen in paragraph 15.

Passport

Passports have become an issue between the parties predominantly I suspect because of a lack of trust between them. It is most likely based on the evidence of the wife that she will leave the children in Australia and on that basis, the children’s passports should no longer be held by the court but by the husband. Provision is therefore necessary to cover the eventuality of international travel and I have made an order under s 65Y to permit that to occur.
I have not made any injunctive orders in relation to international travel because there is no evidence that the wife would do anything rash. If she did, there would be a prospect of a Hague Convention Abduction of Children application and that would end her relationship with the children if she was unsuccessful in raising one of the exceptions.

Itinerary

The husband also sought orders in relation to such things as itineraries about travel and contact details including for the period when he is away. In my view, these children are old enough to protect themselves and there is no evidence of over-holding to justify such orders. The original order for equal shared parental responsibility prevails and notwithstanding the wife might be living in the United States of America, she still has a significant role to play and an interest in, these children. Courtesy as between parents may have been lacking in the past but in my view, it is an essential element of good parenting and if there is a lack of communication, it may be that the court will need to intervene more stringently in the future.

Handover

It is also difficult to craft orders in relation to handover if the wife remains in Australia. I have left that out of these orders on the basis that school, or in the case of international travel, the airport, is the most logical handover point. There will however be occasions when the school is closed and in that case, I would expect the parties to come to an arrangement knowing their obligations in respect of time. If there is no agreement between the parties as to a handover point, a further application can be made to the court and a contact centre arrangement would be the logical alternative left.
In relation to handover points if the wife lives in the United States and travel has to be arranged, one would hope that the parties could reach agreement for the sake of their children. If they cannot, the matter can return to the court on short notice.
It can be seen from paragraph 12 of the orders and paragraph 3(e), provision is made depending on which way the wife proceeds. If she remains in Adelaide, the husband will have the children this coming Christmas but if the wife travels overseas, they can spend time with their mother during that period. Because of the short stay involved, unless the parties can reach agreement about what time the children can go to the United States, it will have to be the discrete period set out in paragraph 12(b). That may necessitate the wife coming to Australia this year if the husband does not agree for part of the ten weeks being in the United States.

Costs

Both parties made reference to costs. As I heard no argument on the matters, I have not dealt with that issue. All applications are otherwise dismissed save to the issues of costs. The parties can make application if they need such orders.
In my view, the reasons set out at the start of these reasons are in the bests interests of the children.

I certify that the preceding One Hundred and Seventy Five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 July 2017.

Associate:

Date: 14 July 2017

[2017] FamCA 494

14 July 2017

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