Cornelius and Powers
[2011] FMCAfam 4
•14 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CORNELIUS & POWERS | [2011] FMCAfam 4 |
| FAMILY LAW – Parenting – relocation – parties reside in Bendigo and have exercised a week-about shared care arrangement by agreement since separation – wife is relocating to [O] at the commencement of 2011 with her new partner – parents have highly conflicted relationship to which the children are exposed – children expressing a wish to remain in Bendigo although concerns raised by Family Report Writer around parental alignment – found wife to have greater insight into and empathy with the needs of the children and better able to promote and support the children’s relationship with the husband into the future – ordered children live with the wife in [O] and spend regular time with the husband in Bendigo. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZX |
| D & SV (2003) FLC 93-137 MRR v GR [2010] HCA 4 Hepburn & Noble [2010] FamCAFC 111 |
| Applicant: | MR CORNELIUS |
| Respondent: | MS POWERS |
| File Number: | MLC 5160 of 2010 |
| Judgment of: | Bender FM |
| Hearing dates: | 6, 7, 8 & 9 December 2010 |
| Date of Last Submission: | 9 December 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 14 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Cahills |
| Counsel for the Respondent: | Mr St John SC |
| Solicitors for the Respondent: | Mark Walters Solicitor |
ORDERS
The parties have equal shared parental responsibility for their children [X] born [in] 1999 (“[X]”) and [Y] born [in] 2001 (“[Y]”).
[X] and [Y] live with the wife and she be permitted to relocate with [X] and [Y] to [O], Victoria.
[X] and [Y] spend time and communicate with the husband as follows:
(a)on three weekends each school term, one such weekend to be a long weekend if the school term contains a long weekend, from 6.00pm Friday to 5.00pm Sunday (or 5.00pm Monday if it is a long weekend) and the 5.00pm extending to 6.00pm on Sunday during Australian Eastern Daylight Saving Time;
(b)for 10 days in each of the first, second and third school term holidays;
(c)for four continuous weeks of the December/January school holidays commencing 10.00am on 26 December 2010 and thereafter in like fashion in each alternate year and commencing 10.00am on 24 December 2011 and thereafter in like fashion in each alternate year;
(d)such further or other times as agreed between the parties from time to time;
(e)the husband nominate the weekends he shall spend time with [X] and [Y] pursuant to order 3(a) herein save that:
(i)[X] and [Y] remain with the wife on the Mother’s Day weekend; and
(ii)there be at least two clear weekends between nominated weekends.
(f)the husband nominate the days of the school term holidays [X] and [Y] shall spend time with him pursuant to order 3(b) herein save that [X] and [Y] be returned to the wife not less than two clear days prior to the commencement of school; and
(g)the husband nominate in writing all periods [X] and [Y] are to spend time with him pursuant to these orders not less than two calendar months prior to the nominated periods.
The changeover point on all occasions [X] and [Y] spend time with the husband be at [omitted] unless otherwise agreed in writing by the parties.
The wife have sole responsibility for making decisions about [X] and [Y]’s day to day welfare, care and development when [X] and [Y] are in her care.
The husband have sole responsibility for making decisions about [X] and [Y]’s day to day welfare, care and development when [X] and [Y] are in his care.
The husband be at liberty to communicate with [X] and [Y] when they are in the wife’s care by telephone/SKYPE between 7.00pm and 7.30pm every second evening and the wife shall facilitate such communications and provide all reasonable assistance to enable them to take place.
When [X] and [Y] are in the care of the husband pursuant to orders 3(b) and 3(c) herein, the wife be at liberty to communicate with [X] and [Y] by telephone/SKYPE between 7.00pm and 7.30pm every third day and the husband shall facilitate such communications and provide all reasonable assistance to enable them to take place.
Both parties shall facilitate [X] and [Y] communicating with the parent they are not living with upon their reasonable request to do so.
Whichever party receives a copy of [X] and [Y]’s school report/s, newsletters and school photograph order forms shall forthwith provide a copy/copies to the other party, or if the school is agreeable, direct and authorise the school to provide copies of such reports and documents directly to the other party.
Each party, upon receiving notification of any school or
extra-curricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps), shall forthwith provide the other party with details or a copy of the notification of such event and both parties are at liberty to attend all such events as are usually attended by parents.
If either party receives notice of a party or other special event for [X] and [Y] which will take place while [X] and [Y] are with the other party, he/she shall forthwith give the other party notice in writing of such event.
Each party shall advise the other of any serious illness or injury suffered by either of [X] and/or [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each of the husband and the wife:
(a)attend and complete, as soon as practicable, a Parenting Apart post separation parenting program ("the program") at an appropriate organisation;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.
The husband shall be restrained from taking either of [X] or [Y] as a pillion passenger rider on any motorbike owned or ridden by him.
IT IS NOTED that publication of this judgment under the pseudonym Cornelius & Powers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5160 of 2010
| MR CORNELIUS |
Applicant
And
| MS POWERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This extremely difficult matter requires a decision as to which of their parents [X] born [in] 1999 (“[X]”) and [Y] born [in] 2001 (“[Y]”) should live with in circumstances where their father will remain residing in Bendigo, where the children and the parties currently live, and their mother is moving to [O] with her new partner.
The parties are caring, loving, competent parents who have a close and meaningful relationship with their children.
Both parents are seeking orders that [X] and [Y] live with them and that they spend three weekends each term with the other, as well as
10 days in each of the term holidays and four weeks in the long summer vacation.
The parties are apart on what electronic communication should take place between [X] and [Y] and the parent they are not living with. The wife proposes such communication take place each third day between 7.00 pm and 7.30 pm. The husband proposes that such communication take place at all reasonable times that either parent or child wishes to communicate with the other.
Background
The husband was born [in] 1969 and is 41 years of age. He is a [occupation omitted] working in Bendigo. He has not re-partnered.
The wife was born [in] 1971 and is 39 years of age. She is a [occupation omitted]. She will commence employment as [occupation omitted] in 2011. The wife has re-partnered and is living with Mr S who is [occupation omitted] at Geelong.
The parties married in 1991. The husband [began occupation omitted] in 1991 and the wife commenced working as a [omitted] in 1992. In March 2001 the parties moved to Bendigo where the husband continued his employment with [omitted] and the wife resumed part-time [occupation omitted] in 2002 after the birth of [Y]. The wife resumed full-time [work] in 2009.
In May 2009 the husband was diagnosed with Post Traumatic Stress Disorder (PTSD) arising from the stresses of his employment as a [omitted] and was placed on Workcover.
In mid 2009 the wife commenced a relationship with Mr S and the parties separated in July 2009 when the wife vacated the former matrimonial home and moved into rental accommodation in Bendigo.
Following separation and by agreement [X] and [Y] lived week about with each of their parents.
Final consent orders in relation to property matters were made in December 2009 whereby the husband, after payment to the wife, retained the former matrimonial home at [omitted].
The husband returned to work on light duties in December 2009 and resumed full-time duties in mid 2010. Affidavits from his treating psychologist and psychiatrist attest to him having made a full recovery from his PTSD and express confidence that he will not have similar problems into the future.
In 2010 Mr S took 12 months leave from his position as [omitted] in Geelong to enable him to live with the wife in Bendigo. It is noted that Mr S had [worked] in Bendigo for many years before his appointment to Geelong in 2008 when he and his then wife moved to [O].
In 2010 Mr S made application to a number of Bendigo [workplaces] seeking a suitable [omitted] position to enable he and the wife to remain living in Bendigo. He was unsuccessful in obtaining a position in the Bendigo region.
Mr S settled property matters with his former wife in 2010 whereby he retained their property in [O]. The wife in these proceedings utilised her property settlement monies to buy a half share in Mr S’s [O] home.
Mr S was advised by [his employer] that he would lose his position as [omitted] at Geelong if he did not resume his duties in 2011.
The wife and Mr S, after careful consideration of all options, made a decision to move to [O] permanently in 2011. The wife did so in the knowledge that it was possible [X] and [Y] would remain living in Bendigo with their father.
On 8 June 2010 the husband commenced these proceedings seeking orders that [X] and [Y] live with him and spend time with the wife as determined by the court.
On 21 June 2010 the wife filed her Response in which she sought orders that [X] and [Y] live with her, that they be permitted to relocate from Bendigo to [O] and that [X] and [Y] spend frequent and regular time with their father.
The Evidence
The evidence in this matter ran for four days. The parties were in the witness box for the better part of two and a half days. Quite properly, Counsel for each of the respective parties was most thorough in pursuing all aspects of the matter.
The reality was however, that at the end of their evidence, the conclusion I reached was that each of the parties are honest, decent,
hard-working individuals who are loving, caring and committed parents with whom their children have close and loving relationships.
In that circumstance, it is not my intention in this judgment to “regurgitate” the parties’ evidence in finite detail.
Written communication between the parties
Having said that however, and before looking at the evidence of the parties and experts, there was one matter which occupied an inordinate (and might I suggest unnecessary) amount of the court’s time. This related to the written communication between the parties since separation.
It was the wife’s evidence that communication between herself and the husband since separation has been difficult, with the husband being very angry and bitter. It was her evidence that the husband insisted all communication between the parties be either by way of SMS or email. She described the husband’s communications as tending:
“to be carping and bullying towards me.”[1]
[1] Paragraph 33 of wife’s trial affidavit sworn and filed on 5 November 2010.
When the husband was in the witness box, Counsel for the wife put to him copies of a number of emails that had been exchanged between the parties. Counsel for the husband raised an objection to what he termed the “cherry picking” of such documents and submitted that for the court to have a proper picture of the parties’ written communication, the entirety of such communication should be placed before the court.
Counsel for the husband advised the court that the husband had maintained a transcript of the text messages that had passed between the parties. It was conceded that not all the original text messages that had passed between the parties were available because of limitations with the husband’s mobile telephone. Counsel for the husband sought to tender the husband’s record of the text messages.
The wife was also cross-examined as to what text messages she had retained on her mobile telephone and advised the court she had retained many of the text exchanges between the parties.
The wife’s Counsel objected to the husband’s transcript of the text messages that had passed between the parties being tendered on the basis that this lengthy documents had not been put to his client and its’ accuracy properly verified.
Having heard submissions on the issue I referred the parties to Division 12A of the Family Law Act 1975 (“the Act”) which governs the manner in which the court is to conduct child-related proceedings, and in particular to section 69ZX(1)(e) of the Act which provides as follows:
Section 69ZX
Court's general duties and powers relating to evidence
(1)In giving effect to the principles in section 69ZN, the court may:
…
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
Pursuant to that section, I called for the parties to provide me with copies of the text exchanges between the parties for the preceding six months and in particular the husband’s statement of transposed messages, copies he had of the face of his phone showing such messages and the wife’s document containing the text messages on her phone which she had directly downloaded from her phone. I also called for the Communication Book the parties utilise that passes between them at changeover.
It was made clear to the parties that I called for such documents to enable me to get a feel for the tenor of their text and email communication and that I accepted there had been no finding as to the accuracy of each and every transcribed message. The accuracy of the Communication Book was not disputed.
A perusal of the requested documentation that was provided to me showed that the parties’ communication in this format was
child-focused, impersonal, factual and direct and is best described as an “information exchange”.
Having said that, both parties’ evidence was that communication between them was poor. This will be further expanded upon later in this judgment.
The husband’s evidence
As set out earlier in this judgment, the husband is seeking orders that [X] and [Y] live with him in Bendigo and that they spend three weekends during each school term with their mother, as well as
10 days in the term holidays and four weeks in the long summer vacation.
It is the husband’s evidence that he has a close and loving relationship with [X] and [Y] and that he has been a “hands on Dad” since their birth. It was the husband’s evidence that during the marriage he and the wife would discuss their respective commitments and he would do everything in his power to ensure that he was rostered off work when the wife was unavailable due to her work commitments in order to be able to care for the children.
In support of this evidence, the husband annexed to his trial affidavit the dates he alleged he had had the sole care of the children in 2007, 2008 and 2009 based on his perusal of the calendars and diaries maintained by the parties during these periods.
The wife challenged the accuracy of this document and prepared a document headed “Wife’s correction to diary entries”. That document indicated that of the 205 entries in 2007, there were 32 entries that were not accurate which had the effect of reducing the number of days the husband had the children in his sole care by 20 in that year. In 2008 where there were 176 entries, the wife claimed there were 28 errors which reduced the husband’s number of days by 11. On page 1 of 2009 there were 62 entries in which the wife claimed there were 8 errors which reduced the husband’s number of days by 3.
The husband conceded that the wife’s corrections to his document were accurate and advised the court that when he prepared his document, it was based on calendars that did not necessarily show changes that were made in the course of the year.
I am satisfied that the errors in the husband’s document were genuine mistakes and were not an attempt by him to over-exaggerate his involvement in [X] and [Y]’s care in order to bolster his case.
Further, I am satisfied that the husband was and is a “hands on Dad” who has been actively involved in his daughter’s lives.
The husband was questioned at length as to what arrangements he would put in place for the care of the girls in the event he was successful in his application for them to live with him. It was his evidence that he has made enquiries of his employer and that he is able to adjust his working hours such that he works three eight hour shifts per week. It was his evidence that in addition he would have 11 weeks annual leave and that he currently has 26 long service weeks outstanding. It was the husband’s evidence that the leave award for a [occupation omitted] is nine weeks annual leave but for the last three years he has purchased an additional two weeks leave.
It was the husband’s evidence that if he were to put such an arrangement in place, management having confirmed that he can do so, he would lose approximately 25 per cent of his salary. It was his evidence that he had looked at his financial commitments and had formed the view that he would be able to afford to maintain the mortgage and other expenses with work arrangements of this type in place.
It was the husband’s evidence that he would be able to put in place arrangements where he did his overnight shift requirements on the three weekends and vacation time that [X] and [Y] would be with their mother.
It was the husband’s evidence that since separation his parents, who live in the Bendigo region, have provided great assistance to him in caring for [X] and [Y], and that on those occasions where he was working they would pick the children up from school, on occasion give them their evening meal and if he was going to be particularly late would care for the children at the matrimonial home until he had finished his shift. It was the husband’s evidence that his parents will continue to offer support in caring for [X] and [Y] into the future in the event that the girls were living with him.
The husband was questioned at length as to how he viewed communication between himself and the wife. It was his evidence that he believed their communication was poor. He agreed that they had not spoken directly to each other, other than a very brief hello at changeover, for a very long period of time and that their communication was either by text message or, occasionally, by email. It was the husband’s evidence that this was primarily the fault of the wife as she refused to communicate with him. Having said that however, the husband conceded that he had declined to attend mediation prior to the final hearing of this matter when requested by the wife to do so, and that he had failed to respond to the wife’s requests for feedback when he recently took [X] and [Y] to their respective potential schools in [O].
When questioned why he had declined to engage in mediation or discussions with the wife, it was the husband’s evidence that until the issue of relocation/where [X] and [Y] are to live was resolved, he felt there was little point in them having any discussions.
It was the husband’s evidence that when [X] and [Y] are with him, they do not discuss the wife or Mr S at all. When asked as to why this would be the case, it was the husband’s evidence that [X] and [Y]’s time with him is separate to their time with their mother and that there is no necessity for there to be any discussions around that.
When asked whether he raises their time with their mother with [X] and [Y], it was the husband’s evidence that he might ask them what they’d had to eat to make sure that he didn’t duplicate meals and that he would occasionally ask them how things
“are travelling with their Mum”.
He indicated he asked this question to see how they were getting on with their mother and whether there were any issues that he could help with.
In relation to the husband taking [X] and [Y] to see their schools, it was the husband’s evidence that both schools had Open Days for new students while the girls were in his care and, to his credit, he had taken them down to [O] so they would have an opportunity to see their potential schools. It was the husband’s evidence that [X] in particular was very excited about [omitted] Secondary College and spoke positively of what she saw of the school and of the facilities it provides.
It was the husband’s evidence that [Y] was less enthusiastic about [S] Primary School (the feeder school to [omitted] Secondary College) and was a little concerned that it was smaller and offered less extra-curricular activities, in particular guitar lessons, than was offered at her current primary school. (I note the wife advised she had spoken directly to [S] Primary School who confirmed that they do offer guitar lessons).
The husband stated the wife is a good mother and has a close and loving relationship with [X] and [Y]. However, he also gave evidence that he believed the wife to be a liar in that her relationship with Mr S started some 12 months earlier than she claims. He also gave evidence he believes she has problems with excessive alcohol consumption, citing instances of having to pull the car over to the side of the road to let the wife be ill after end of year [work] functions. The husband also questioned whether the children were the wife’s priority given her decision to move to [O] even if she is unsuccessful in her application to have [X] and [Y] live with her.
The husband argued that both [X] and [Y] have indicated that they wish to remain in Bendigo, that they have lived in Bendigo all their lives, their friends, their school, their sport and their paternal grandparents are all located there. It was the husband’s evidence that in those circumstances, it was in [X] and [Y]’s best interests that they continue to reside in Bendigo with him in the former matrimonial home.
Ms C
Ms C is the paternal grandmother and she filed an affidavit in support of the husband’s application as well as giving viva voce evidence at the final hearing of the matter.
Ms C is clearly a loving, caring and honest mother and grandmother. She and her husband are supporting their son in his application. Ms C confirmed that she and her husband assist their son in the care of [X] and [Y] if his work commitments require them to do so and indicated that they will happily and willingly continue to do so into the future in the event that the husband is successful in his application.
Ms C confirmed that they were shocked and disappointed when their son’s marriage broke down and that because of their strong Christian beliefs, they were disapproving of the wife living with another man whilst still married to their son. It was Ms C’s evidence that they did relay this disapproval to the wife by way of email, but that now she is divorced, that opposition is no longer relevant.
Ms C spoke positively of the wife as a person and as a mother, and I was satisfied that this view was genuinely held by the paternal grandparents.
Dr O
Dr O is a Consultant Psychiatrist who has been treating the husband in relation to his PTSD since June 2009. Dr O swore an affidavit on behalf of the husband on 30 November 2010, annexed to which was his Report dated 8 November 2010. Dr O also gave oral evidence at the final hearing of this matter.
It was Dr O’s evidence, as contained in page 3 of his Report, in relation to the husband as follows:
“At my last review on the 19/10/2010, he was well in himself, free of any psychiatric symptoms and enjoying his work, leisure time and family life.
Prognostically, given his good premorbid history and functioning, his good, full and timely recovery and the well sustained recovery, despite resuming full duties and re-exposure to traumatic stresses at work, I am able to confidently express my opinion that he has a very good prognosis for the future, with low likelihood of relapse.”
In response to a specific question as to the husband’s understanding and management of the children’s emotional needs, Dr O stated again at page 3 of his Report as follows:
“He seems to relate well to his children and their needs; he does not have any psychiatric problems, symptoms or disorders that might interfere with his capacities. There are no personality disorders present that might give rise to such difficulties.
I have no concerns about his capacity to parent, fully meeting his children’s needs, physical and emotional.”
The wife’s evidence
As set out earlier in this judgment, the wife and her new partner Mr S are moving to their home in [O] at the start of the 2011 school year, where she will take up a new position as [omitted] and Mr S will resume his position as [omitted] at Geelong.
The wife is seeking orders that [X] and [Y] live with her in [O] and that they spend three weekends a term, 10 days in each of the term holidays and four weeks in the long summer vacation with the husband.
The wife confirmed in her evidence that after considerable discussion and consideration, she and Mr S have determined that they will make the move to [O] even if she is unsuccessful in her application to have [X] and [Y] live with her.
The wife readily conceded that the husband, [X] and [Y] have a close and loving relationship and that he has always been “a hands on Dad”.
It was the wife’s evidence that during the marriage she was the primary carer for the children, particularly when they were younger, as she was only working part-time whilst the husband was engaged in full-time work as a [occupation omitted], working variable shifts of some
10 hours a day including night shifts.
The wife conceded it was her understanding that [X] and [Y] would prefer to stay in Bendigo because that is where they have grown up and where they feel safe and secure, but was of the view that as they are both bright, intelligent and socially confident young girls they would be able to make friends easily and would settle into life in [O].
It was the wife’s evidence that she felt she was better attuned to [X] and [Y] than the husband and would be best able to assist them as they grow into adolescence.
The wife indicated that [X] and [Y] have a good relationship with Mr S and that they interact easily and positively with him. It was the wife’s evidence that [X] and [Y] were comfortable with Mr S and by way of example explained that when they are on the couch watching television at night [X] and [Y] would ask Mr S to massage their feet and shoulders.
The wife gave evidence of a period when she and [X] were at odds, with [X] taking issue with her on most things, even the food she cooked or requirements that she come to the table. This was particularly so between July and September 2010. It was the wife’s evidence that during this period [X] had been provided with a mobile phone by the husband, against her wishes, and that [X] was continuously texting the husband complaining of her mother’s behaviour at any times they had arguments.
The issue of the mobile phone came to a head in September 2010 when [X], without her mother’s knowledge or consent, looked at her mother’s mobile phone and then proceeded to send a text message to her father saying that her mother was lying about having no friends in Bendigo as she was texting them on her phone. When this occurred, the wife chastised [X] and confiscated the phone whilst [X] is living with her.
The mobile phone incident occurred shortly after the parties and the children attended upon Ms S for the preparation of a Family Report.
It was the wife’s evidence that since September 2010, her relationship with [X] has got back on track and there have not been any issues between them since that time. The wife was not sure whether that was because [X] had had an opportunity to speak to Ms S, whether it was the removal of the phone, a realisation by [X] that she didn’t have to make a decision about where it was that she wanted to live, or a combination of all these factors that had calmed things down for [X].
72. It was the wife’s evidence that communication with the husband since separation has been fraught with difficulty. It was her evidence that when she advised the husband that she wished to separate and that she had formed a new relationship with Mr S, he was very angry and bitter towards her and that this was reflected in his communications with her. She cited examples of him telling her that she had ruined the girls’ lives and set a bad example to them by behaving immorally. It was the wife’s evidence that the husband warned her that Mr S was a man not of sound character, that he had a reputation for being unfaithful to his wife, that she was not the first woman with whom he had had an affair and he was not a person suitable for her to have a relationship with.
It was the wife’s evidence that the friends that she and the husband had during the marriage had sided with the husband following their separation and that she had become socially isolated in Bendigo as a result of the circumstances around the breakdown of the marriage.
It was the wife’s evidence that the husband has insisted that all communication be by electronic means and they have not spoken to each other, other than the coldest of greetings at changeover, for well over 12 months.
It was the wife’s evidence that she feels that the communication from the husband is hostile and carping. Whilst perusal of the documents that I called for does not necessarily meet this description, I am satisfied that the wife genuinely perceives the husband’s approach and communication to her in those terms.
The wife described the current level of communication as being a
“cold war”
and was of the view that both [X] and [Y] were very conscious of their father’s dislike and disapproval of her and Mr S.
The wife had expressed a concern that in the event [X] and [Y] were to remain living with their father in Bendigo, that whilst he would comply with any court orders, [X] and [Y] would be put under a lot of pressure to choose to remain in Bendigo to participate in their activities there on weekends that they should otherwise be spending with her. She expressed the view that if they were living with her in [O], because of their strong connections with Bendigo, there would be a greater enthusiasm and willingness on their behalf to forego any activities in [O] in order to be able to visit their father, friends and extended family in Bendigo on the weekends appointed for those visits.
The wife denied the husband’s allegations that she lied about when her relationship with Mr S started or that she abuses alcohol. Whilst conceding there were two occasions when she was ill after an end of year school function, it was her evidence, which I accept, that she is a social drinker only, having no more than a glass or two of wine with an evening meal.
Mr S
Mr S is the wife’s partner. He swore an affidavit in these proceedings on behalf of the wife and also gave oral evidence at the final hearing of the matter.
It was Mr S’s evidence that he had [worked] in Bendigo for many years from 1979 to June 2008 when he accepted the position as [omitted] at Geelong.
Mr S gave evidence that he and the wife commenced a relationship in mid 2009, and that he had taken a 12 month leave of absence from his position at Geelong to live with the wife in 2010. It was his evidence that he made a number of applications for positions in the Bendigo region in 2010 as it was the intention of himself and the wife to remain in the Bendigo region in the event he was successful in being able to obtain employment at an appropriate level.
It was Mr S’s evidence that whilst he was successful in being interviewed for a number of these positions, he was ultimately not successful in obtaining suitable employment in the Bendigo region. It was Mr S’s evidence that he had been advised by [his employer] that if he does not return to his position as [omitted] in 2011, then he will lose that position.
It was Mr S’s evidence that in those circumstances and in light of the sense of social isolation being experienced by the wife because of the circumstances in which he and the wife had commenced their relationship, both he and the wife, after considering all possible options, had made a decision that they would move to [O] at the commencement of 2011 to live there permanently.
It was Mr S’s evidence that he has a positive relationship with [X] and [Y]. He described this relationship as being like that of an uncle. It was his evidence that he has three adult children and he is very conscious that he is not [X] and [Y]’s father, that the husband is and that he has no intention of ever usurping that role in the girls’ lives.
Mr S indicated that he gets on very well with [X] and [Y], that [Y] who is much more physically affectionate gives him a hug and that both girls enjoy a foot and shoulder massage whilst they are sitting on the couch watching television.
Mr S’s evidence was there was no communication between himself and the husband but he agreed it would be much better for [X] and [Y] if it were possible for the adults in their lives to deal with each other in a much more civil manner.
Mr S gave evidence that recently [Y] was to participate in a sporting event whilst she was living with he and the wife, and that she rang the husband to ask if it was alright for Mr S to attend as well as the husband and that the husband was agreeable to same. Mr S indicated there was no difficulties with this, but did observe that the husband did not approach them at any time during the whole of the event nor, I note, did they approach him. [X] and [Y] are very much aware of the adults’ inability to communicate in any friendly way with each other.
Ms S
Ms S is a psychologist and Regulation 7 Family Consultant with the Federal Magistrates Court, who prepared a Family Report in this matter dated 13 October 2010. Ms S also gave oral evidence at the final hearing of this matter.
In her Family Report under the heading of ‘Recommendations’ on page 15, Ms S set out the following:
42.On the basis that the writer considers the ability of the children to have a positive relationship with both parents as paramount, the writer suggests that the children live with their mother at [O] as it is more likely that this will be achieved if the children live with Ms Cornelius. It is also more likely that [X]’s alignment with her father will dissipate and it will eliminate or reduce the responsibility that she feels for his emotional welfare.
43.Should the children’s wishes to remain in Bendigo be given priority by the Court, it is recommended that conditions be put in place to ensure that the children’s time with their mother occurs as ordered by the Court and that there are consequences if their relationship with her is not supported and promoted or if they do not spend the prescribed time with her. It may be that the matter needs to be reviewed in twelve months.
44.It is recommended that the children spend time with the other parent with whom they do not live every third weekend or alternatively, that the children travel to the other parent once a month and the other parent travel to the children’s home once a month so that the children see the other parent every alternate weekend. Some consideration should be given to the parents sharing the travel.
45.It is further recommended that the children spend more than half of the school holidays with the parent with whom they do not live. Some consideration should be given to the children spending more summer time at [O] than in Bendigo.
46.It is recommended that both parents attend a post separation parenting programme.
47.It is recommended that both parents engage with their own individual professional counsellor to address the issues as described in the body of the report.
In paragraph 4 of her Report, Ms S noted that there was a significant level of conflict and animosity between the parents, stress and pressure on the children and communication difficulties between the parents. She also noted that alignment issues emerged in the interview process and that this is starting to impact on the parent/child relationship.
Ms S described [X] as a friendly and articulate young girl, pleasant and polite, and ready to express her views and wishes.
Ms S indicates that the separation was a shock and sad time for [X] and that she has real concerns for her father’s welfare and is tending to side with him.
Ms S indicates that [X] is aware of the parental discord and that she feels caught in the middle of her parents’ conflict. [X] told Ms S she notices that her parents never speak to each other and that having them at common events creates tension and awkwardness for her as she feels caught in a loyalty conflict with her parents and she has:
“a problem deciding which parent to go with.”
[X] also advised Ms S that she finds the current week-about arrangement disruptive and difficult. [X] told Ms S that she really doesn’t like the regular moving and that because of the lack of cooperation between her parents she feels she is the one who has to resolve any issues that arise, for example if she forgets clothing or other items at one parent’s home that she needs when she is with the other.
[X] told Ms S that she didn’t like Mr S, but was unable to state any specific reason as to why.
In relation to [Y], Ms S describes her as a slight child who is vivacious and sparkling, articulate, confident and with a cheerful demeanour. She describes her as engaging and infectious, someone who was open and frank in interview and who spoke candidly and sincerely.
Ms S indicates that [Y], like her sister, feels caught in the middle of her parents’ dispute and that she:
“feels like a bit of a messenger”
though conceding that her parents try not to use her that way.
Similarly to [X], [Y] also finds the week-about arrangement problematic and stressful, not only because it is unsettling and disruptive, but also because of the parental discord and her parents’ inability to cooperate in a civil manner.
Ms S indicated that [Y] described having a good and positive relationship with both her parents as well as Mr S.
Under the heading ‘Evaluation’, Ms S in paragraph 29 of her Report described the parties as follows:
29.Mr Cornelius and Ms Powers present as competent, caring and loving parents who are genuinely concerned for their children’s welfare but are struggling with their pain and loss to move forward and hence, to adequately attend to their children’s needs. Although he says he is resolved,
Mr Cornelius presents as unresolved about the separation and has not been able to accept his wife’s decision to leave and particularly struggles with accepting her with a new partner. Ms Powers is sad and distressed by the losses in her life and she perceives herself as the victim. She may be depressed as she seems to be regularly tearful and distressed.
In paragraph 30 of her Report, Ms S states:
30.Unfortunately, both parents have not shielded the children from their feelings and emotions; [X] is sensitive to her father’s feelings, supports him while rejecting her mother, feels responsible for his emotional welfare and is taking on the same views and opinions of the father. She is judgmental of her mother, blames her for the separation, says she dislikes Mr S and has gone as far as spying on her mother’s mobile phone in what appears to be an attempt to discredit her mother. [X] seems to be aligning herself with her father against her mother.
Later in the Report, at paragraph 38, Ms S states as follows:
38.While both parents are capable of caring for the children, the writer is concerned that should the children remain in Bendigo with their father, there is a possibility that the children, [X] in particular, will gradually refuse to spend time with their mother. There are elements of parental alienation emerging with [X] with blaming and fault being attributed to her mother. While Mr Cornelius does not appear to be deliberately turning the children against their mother, neither does he seem to be dispelling some of their negative attitudes towards their mother. In order for the alignment to be broken (or not develop further), very strong, firm and clear messages need to be transmitted to the children about the positive need for a relationship with their mother. No blame or fault of a parent should be countenanced…
In paragraph 39 of her Report, Ms S observes as follows:
39.The writer has doubts as to Mr Cornelius’ capacity to separate his needs from those of the children’s and to positively promote their relationship with their mother. If the relationship between the children and both parents is to be safeguarded, then it is more likely that this will occur if the children live with their mother…
In cross-examination, Ms S conceded that her recommendation that the children live with their mother was very finely balanced and that she had no major concerns about the care of [X] and [Y] with either of their parents.
Ms S was asked what impression she had formed in relation to the parties’ capacity to communicate since separation. It was her response that her impression was such communication was fraught and had become increasingly difficult rather than dissipating.
Ms S was then given an opportunity to peruse the parties’ Communication Book as well as the transcripts of text messages and email messages of the last six months. Like me, Ms S formed the view that these documents detailed an appropriate exchange of relevant information rendered in a polite and appropriate manner.
It was Ms S’s evidence that the written communication viewed by her didn’t fit with the presentation of the parties or the information that was given to her at the time when she interviewed everyone.
Ms S wondered if the parties’ communication had improved since September 2010 when she saw the parties, because at that time communication was clearly in issue, not only for the parties but for [X] and [Y] as well.
It was explained to Ms S that it was the parties’ evidence that they continued not to speak to each other, other than the coldest of greetings at changeover, and that both had used the term “cold war” to described their current level of communication and interaction.
In this circumstance, Ms S made the following observations:
“[Y] said to me in the report writing process that she could only remember twice when Mummy and Daddy looked at each other and every other time they don’t.”
Ms S noted that it is this awkwardness that the children feel when their Mum and Dad are together. She stated as follows:
“It’s that tension that exists between the parents which I think it was [Y] who really highlighted and said was the difficulty for her when her parents were in the same space. I think it’s when parents aren’t able to sit comfortably in the same space, where the children can’t just stand next to one parent and not be worried about how the other parent is feeling. It’s that lack of communication – although it’s good to hear that at least they are able to say hello to one another, which is really important – that ease of exchange, that ease of being in the same space so that the children can happily just wander and not worry about ‘Am I standing next to Mummy or should I go and stand next to Daddy?’”
Ms S had explained to her the recent occasion when the husband and the wife and Mr S had all attended at [Y]’s sporting event, but there had been no interaction whatsoever between the adults for the entirety of that occasion. Ms S indicated that this is indicative of the “cold war” the parties have both referred to. The lack of interaction between the parties is such that for the children it means that whilst their father has said it was alright for Mr S to attend the sporting event, their failure to interact leaves the children feeling very awkward.
Ms S said whilst the parties do not engage in huge arguments and nasty exchanges, [X] and [Y] are very much conscious of the adult conflict and they continue to be exposed to it.
114. Ms S was questioned about the “phone incident” (where [X] looked at her mother’s phone and sent her father text messages of the contents therein). It was her evidence that when she prepares a Report, after she has completed the interviews, she contacts both parties by telephone in the following week in order to clarify any matters that she may need further information about and ascertain if there is anything further that either party wishes to tell her. She indicated that when she telephoned the wife, the wife told her of what had happened in relation to the phone. The wife was clearly very upset about what had occurred and was concerned that the husband either deliberately or inadvertently encouraged [X] to “spy” on her. Ms S confirmed that the wife had acted very positively and strongly in relation to this being inappropriate behaviour and had confiscated the phone from [X] when she was with her.
It was Ms S’s evidence that she then spoke to the husband and questioned him about this incident. She was quite satisfied that [X] had looked at her mother’s phone of her own volition and that the husband had not in any way prompted her to do so. Ms S was concerned however as to the real lack of censure by the husband of [X] for this behaviour and the mixed messages that that would send to [X] about the inappropriateness of her behaviour.
I would note that I too am more than satisfied that [X] was acting of her own volition and that the husband in no way encouraged [X] to behave in the manner that she did. However, having seen the husband’s responses to [X] upon receipt of her text message, I would agree that his response was very mild and did not properly reflect the seriousness of her behaviour. To “spy” on her mother was a blatant breach of trust and a much stronger response from the husband was called for.
It was put to Ms S that if the court was satisfied that the husband had not encouraged [X] to spy on her mother and had chastised her for not behaving appropriately, would this change her views or the weight that she placed on the incident and its’ impact on her recommendations.
118. It was Ms S’s response as follows:
“It may soften the weight that I placed on that particular incident, but I don’t think it changes my assessment generally. For example, it is not in the report, but for example, Mr Cornelius was reporting that the children liked the week-about arrangement and he thought it was working well. When I spoke to the children, in fact, they don’t like it. I will say were suffering under the weight of the parental conflict, and, in fact, if there was one thing that the children want to change then that was the week-about arrangement. So, I still think that there were some elements about Mr Cornelius’ perception of the children, his understanding of the children, which perhaps at times lacks a level of some insight.
Ms S had put to her, on behalf of the husband, the conclusions reached by Mr Cornelius’ treating psychiatrist, and in particular the following paragraphs:
“All of my interactions with Mr Cornelius and my assessment of his personality features suggest to me that he would, indeed, be capable of attending to his children’s needs and to prioritise them where necessary separating them from his own without difficulty.
Mr Cornelius has gone through the expected reactions and progressed meaningfully through them over time coming to terms with the situation in a realistic and mature way.”
Ms S was asked whether she had any comment to make in relation to those observations made by Mr Cornelius’ treating psychiatrist. It was Ms S’s response as follows:
“I don’t necessarily disagree with the gist of those comments, and I’m sure that Mr Cornelius with time has made significant improvement in both his own health and his ability to move on with the relationship, etcetera. I can only reiterate that in my – in the information that I received at the time, in my discussion with the children, there were at times indicators that, perhaps, he didn’t quite have the insight that was required. I’m not necessarily suggesting that he is deliberately putting his needs before the children, I don’t think he is deliberately not – not hearing the children, but I think at times there were nuances around his – his perhaps lack of capacity to always understand what was happening for the children.”
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
In this matter, both parents agree that orders should be made for them to have equal shared parental responsibility for [X] and [Y]. Despite their acknowledged difficulties in communication, the parties have properly managed a shared care arrangement since separation, including an ability to change those arrangements, have the wife look after the children on a Monday after school until the husband finishes work, arrange sporting and extra-curricular activities and the like.
Further [X] and [Y] are described as delightful, intelligent, articulate young girls which very much reflects the parenting that they have received to date.
In these circumstances I am more than satisfied that an order for equal shared parental responsibility should be made.
Where parents have equal shared parental responsibility for their children, section 65daa of the Act requires the court to consider the children spending equal time, or substantial and significant time, with each of their parents.
Section 65daa provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In this matter, if the wife had remained living in Bendigo, it is quite possible that this matter would never have come to the court’s attention, or if it had, it would have come before the court on the issue as to whether equal time should continue, particularly in light of the comments both [X] and [Y] made to the Report Writer as to the difficulties they were having with this arrangement.
The reality in this matter however is that the wife will be residing in [O] as from the beginning of the school year in 2011, and in that circumstance, an order for equal time or even significant and substantial time is not possible.
In the High Court decision of MRR v GR [2010] HCA 4, the High Court held in paragraph 13 as follows:
“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… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind.”
Clearly in this matter it is not practical for the court to make an order for equal time or significant and substantial time, and neither party is seeking orders in those terms.
When determining what living arrangements should be ordered by the court, the Act quite clearly sets out that such orders must be made in the best interests of the children. In order to determine what is in the children’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters that are set out in subsections 2 and 3 of section 60cc of the Act, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other arrangement as the court may determine, will be in the best interests of the children.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It is agreed that [X] and [Y] have a close, loving and meaningful relationship with both of their parents. To their credit, both parties agree that [X] and [Y] love the other and that they both love, nurture and care for their children appropriately.
Both parties spoke positively of the other in the context of their roles as parents. However, the husband criticised the wife for what he believes is her putting her own needs ahead of the girls in her decision to move to [O], and argued that she was putting her relationship with
Mr S ahead of her responsibilities as a mother.138. The reality for [X] and [Y] is that whichever parent they live with, the relationship that they have with the other parent will be impacted because of their lack of proximity to that other parent. The parent that they are not living with will no longer be able to readily attend all their sporting and school activities, or be physically available to them upon short notice as they are at the moment.
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Fortunately there is no issue whatsoever of either [X] or [Y] being at risk of any harm in the care of either of their parents.
In her Family Report, Ms S was concerned about the parties’ capacity to shield the children from their pain and loss arising from the separation and the stress and difficulties that this has and is causing for [X] and [Y]. In this regard she strongly recommends that both parties attend a Post Separation Parenting Course, as well as individual counselling to address these personal issues. I will be making orders that both parties forthwith enrol in and complete a Post Separation Parenting Program, and whilst no orders will be made for the parties to engage in individual counselling, it is strongly recommended that they do so. To that end I note that the wife has been attending a counsellor since the receipt of the Family Report.
Section 60cc(3) of the Act sets out the additional considerations that are to be taken into account by the court in determining what is in the children’s best interests and I will consider each of these in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Both parents agree that [X] and [Y] have indicated that they would prefer to remain in Bendigo living with their father.
In [X]’s case, this would appear to reflect an alignment with her father, for whom she has feelings of responsibility and in [Y]’s case, reflects her desire to stay where she is comfortable and where her friendship, school and social life are known. It is interesting to note however that when the husband took the girls to see their respective potential schools in [O], on the husband’s own evidence, it was [X] who showed the most interest and excitement.
In paragraph 34 of the Family Report prepared by Ms S, she sets out the following:
34.Both [X] and [Y] have a preference to remain in Bendigo where they feel secure, comfortable, have friends and feel it is home. Understandably, [O] presents many unknowns. [Y] is torn between her parents and is unsure of what she really wants although ultimately her preference is to remain in Bendigo. Although [X] is far more certain about her wish to remain in Bendigo, her views are strongly coloured by her concerns for her father and her need to please him…
In paragraph 20 of her Report, Ms S, in setting out her discussions with [X], related the following:
20.Although it was explained to [X] that she did not have to choose between her parents, she was clear about wanting to make express her views and that her preference was to remain with her father in Bendigo. She explained that she felt at home in Bendigo, her friends were there, as well as family and hence, preferred to remain with her father…
Further in paragraph 21 of her Report, Ms S reports:
21.[X] stated that she prefers to live with her father as she gets on better with him whereas she tends to have fights with her mother; “we have tiffs about everything”. She is far more concerned about her father’s distress if she lives with her mother as, although both parents would “be sad”, her mother “would have [Mr S]”… She is concerned for her father’s welfare and is tending to side with him…
147. In the part of the Report relating to Ms S’s interviews with [Y], Ms S at paragraph 25 noted as follows:
25.… [Y] seems to have spent considerable energy on weighing up all the pros and cons of relocating or staying, without coming to a clear decision. She tended to do this throughout the interview where she would first opt for one choice and then change her mind. However, the theme that emerged from [Y] was her preference to remain in Bendigo as that is where she feels comfortable, familiar and settled. The relocation poses many unknowns which while they do not cause her undue worry or distress, seem unnecessary to her given that she has the option of staying with her father with whom she would be happy and secure.
In paragraph 26 of her Report, Ms S states:
26.[Y] wants to have an input into the decision of her future home but struggles with a clear decision. While she has a clear preference to remain in Bendigo, this is not a firmly or strongly held position. She considered the separation from her mother and although she will miss her, she feels that she is “OK when Mum is not there”.
In paragraph 28 of her Report, in concluding her observations of the children Ms S advises the court as follows:
28.… Finally, when asked their reaction to a decision to live in [O] with their mother, they both responded that they would be disappointed and unhappy but that they would have to accept it. The alternative option was accepted more readily but they both noted they would miss their mother.
In the evaluation component of her Report, at paragraph 32, Ms S makes the following observations:
32.… A large part of [X]’s wish to remain in Bendigo reflects her need to care and look after her father’s emotional needs. She is unconcerned about her mother as “she has [Mr S]”. It is concerning that such a young child should shoulder the responsibility for a parent’s emotional welfare. The father’s insight into the child’s needs and his own behaviour needs to be questioned. The “parenting” role that [X] has adopted will be confirmed for her if her wishes are granted and she remains with her father.
It was argued on behalf of the husband that given [X] and [Y]’s ages, and their acknowledged maturity and intelligence, their clearly stated wishes to remain in Bendigo with their father should be given considerable weight by this court.
Clearly the views and expressed wishes of [X] and [Y] will be an important factor to be considered in determining their living arrangements. They will be balanced against the other factors that the court must consider in reaching a decision as to what living arrangements will be in [X] and [Y]’s best interests.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As has been clearly set out in this judgment, [X] and [Y] have a close, loving and meaningful relationship with both of their parents who are capable, loving and caring individuals.
Whilst [X] told Ms S that she does not like Mr S, the wife’s now partner, I accept that both [X] and [Y] have a positive relationship with him and that they genuinely care for him as he does for them. This is borne out in the evidence of Ms S and of the wife and Mr S. Ms S observed the interaction between [X] and Mr S and in paragraph 28 of her Report stated:
28.Observation of the children with their parents and Mr S confirmed good, close and positive relationships with all three adults… There was no rejection of Mr S but a familiar and easy interaction with him…
The evidence of the wife and Mr S of Mr S’s positive relationship with both [X] and [Y] was consistent and convincing.
The paternal grandparents live in the Bendigo region. It was the wife’s evidence that prior to separation the family would interact with the paternal family about once a month, and that it was as a result of her instigation that there was such regularity of interaction.
Since separation, [X] and [Y] have been spending considerably more time with their paternal grandparents because of the assistance they are giving the husband in caring for the girls when they are living with him. I accept that they are an important part of [X] and [Y]’s world.
The wife argued that in the event the girls lived with her in [O], they would see as much, if not more, of their paternal grandparents as they did prior to separation, and that this important relationship would be properly maintained in those circumstances.
It was argued by the husband that if the girls were to live in [O], the ability of [X] and [Y] to spend time with their paternal grandparents would be greatly less than it has been in the last 18 months.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
At separation, the parties put in place an arrangement for [X] and [Y] to live equally with both of them. Despite the real issues as to their ability to communicate with each other, the parties have ensured that this arrangement has stayed in place and that the girls have maintained their positive relationship with both parents.
However, and as noted in the Family Report of Ms S that has been set out previously in this judgment, [X] and [Y] have been caught in the conflicted parental relationship and both girls speak of feeling caught in the middle of their parents’ dispute to their emotional detriment.
It was the husband’s evidence that neither [X] or [Y] discuss their time with their mother or Mr S when in his care. He exhibited very little understanding that this was not a positive thing and that in fact it reflected their belief that to do so would distress him because of their clear understanding of his dislike of Mr S and his disapproval of their mother. That [Y] felt that she needed to ring her father and ask him if it was alright for Mr S to attend her sporting event clearly shows that [Y], and [X] too, genuinely believe that their father could potentially have taken objection to and been upset by them wanting to have Mr S attend their extra-curricular activities.
163. It was the husband’s evidence that he was initially very hurt, angry and bitter at the parties’ separation and the wife’s re-partnering, but that he had moved on and had accepted that their relationship was over and that Mr S is going to be a part of [X] and [Y]’s lives. Whilst it was apparent from his evidence that the husband had moved on from his initial hurt and bitterness, there was a certain tenor at times to his evidence which indicated to me that he still harboured a degree of bitterness towards the wife as to the breakdown of the marriage and that he still harboured a degree of resentment towards her and Mr S for the breakdown of his family. By way of example, the husband gave evidence that he had real concerns as to the wife drinking to excess, of being a liar and of having commenced her relationship with Mr S
12 months earlier than she claims. His evidence in relation to these beliefs was less than compelling and was indicative of the husband continuing to harbour negative views about the wife.
In her evidence, Ms S observed the wife to have something of a “victim mentality”, and this was apparent in the wife’s evidence and demeanour before the court. She clearly feels that the husband and his family disapprove of her and the decision she made to finish the marriage and commence her new relationship with
Mr S. [X] and [Y] reported to Ms S their concerns that their mother would become tearful and distressed about the pressures she felt she was under as a result of the issues arising from the separation and Ms S noted it was important that the wife undertake some personal counselling to enable her to address these issues.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Whichever of their parents [X] and [Y] live with, they will be a considerable distance away from the other parent. [O] is approximately three hours drive from Bendigo, and in that circumstance the parent with whom they are not living will no longer be in close proximity and able to easily or spontaneously participate in their day-to-day activities as has been the case up until this time.
When speaking to Ms S, the husband told of his concerns of not being able to participate, as he had in the past, in [X] and [Y]’s life and his concerns that his role would be relegated to a:
“non-functional, weekend Dad”
over time, whereby ultimately he may lose any meaningful contact with his children. Ms S noted however in paragraph 7 of her Report:
7.…he did not seem to recognize or empathise with the fact that the same losses would be experienced by the mother if the children live with him…
When cross-examined on this issue, Ms S also raised some concerns that whilst the husband was understandably distressed about the impact on him and the losses he would experience in the event the children were to live with their mother in [O], he did not necessarily exhibit any insight or understanding as to the impact on either of [X] or [Y], or on the wife, of any changes in their living arrangements.
168. As noted earlier in this judgment, the husband is also concerned as to the potential impact on [X] and [Y]’s relationship with the paternal grandparents in the event they move to live in [O] as their current regular time with their paternal grandparents would no longer be possible.
The wife countered this by arguing that prior to separation, [X] and [Y] would see their paternal grandparents on average about once a month, and that the same level of interaction would be maintained if they were living in [O] as they would no doubt be spending time with the paternal grandparents when with their father.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no doubt that the wife’s decision to move to [O] creates a myriad of practical difficulties for [X] and [Y] in spending time and communicating with each of their parents, particularly when compared to the relative ease with which they are able to do so when both their parents live in the Bendigo region.
Having said that, the parties will be three hours apart, they will not be living in different States or different countries.
Whichever parent they live with, [X] and [Y] will be spending regular time with the other parent during the school term as well as considerable time during the school holiday periods.
To their credit, the parties are in agreement that they will share travelling duties in relation to all changeovers and have agreed on changeover taking place at a midpoint between their respective homes in Bendigo and [O].
Further, modern technology, and particularly SKYPE, will enable [X] and [Y] to communicate regularly and cheaply with each of their parents, as well as with extended family and friends.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that both parents have the capacity to provide for [X] and [Y]’s physical, emotional and intellectual needs.
In her Report, and in her viva voce evidence, Ms S observed both parties to be competent, caring and loving parents who have genuine concerns for their children’s welfare. She spoke of [X] and [Y] being loved and well cared for by both parents. She did note however that whilst the parties are capable and competent parents who are able to care for the physical needs of their children, they both needed to make adjustments and be more responsive to the children’s emotional needs.
In paragraph 36 of her Report, Ms S states:
“The children will be happy, safe, secure and will progress well with either parent.”
I agree completely with that assessment.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As has been the theme throughout this judgment, both parties are loving, caring, committed and appropriate parents to their children.
The husband argued that making the decision to move to [O], even if she is unsuccessful in her application to have the children live with her, indicates that the wife is placing her own needs ahead of those of her children.
The husband’s Counsel, in closing, stated baldly that unlike several cases to which Counsel referred me, the wife in this matter is saying:
“I’m going to relocate, but if I lose and the children are ordered to stay in the area, then, I am going to go anyway. Now, if that is not a position of putting your needs ahead of those of the children, then I don’t know what is.”
I do not agree with that proposition at all.
I accept that in this matter the wife has given long and careful consideration as to what her future living arrangements should be and has reached the conclusion that what is best for her and her family is to make a fresh start in [O]. In making that decision, she has taken into account the possibility that [X] and [Y] could remain living with their father in Bendigo and that she would not have them in her care to the same extent that she has to date. She accepts that if such orders are made, they will have been done so on the basis that a determination has been made that that is in their best interests. I accept that the wife would support that decision, support [X] and [Y] in adjusting to the alteration in arrangements and will continue to be the loving, caring and supportive mother of them as she has been to date.
I also note that in Ms S’s evidence, she emphasised that if orders were made that [X] and [Y] live with their mother in [O], their adjustment to those living arrangements will be greatly enhanced if that decision is supported by the husband and he ensures that he presents a positive view of their life in [O] to them, despite whatever misgivings and distress he may personally feel.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Upon separation, the parties were able to put in place arrangements for [X] and [Y] by agreement, and thereafter were able to reach agreement as between themselves on the necessary day to day decisions that needed to be made for their care.
The matter comes before the court as a result of the wife’s decision to move to [O] and I accept that absent that decision, in all probability, the parties would have continued to make arrangements for their girls without recourse to litigation.
Whilst the “unsuccessful” party to this litigation is going to be extremely distressed and disappointed in the court’s decision, I am encouraged that there will not be cause for further litigation in relation to the arrangements for [X] and [Y] because of the parties’ ability to agree on all but one small aspect of the girls’ living arrangements (being the frequency of electronic communication), whichever parent it is that they ultimately live with.
Further, the parties, together with Mr S, all expressed a commitment to looking at ways to better communicate between themselves and it would be hoped that any “fine-tuning” of the arrangements would be able to be resolved as between the parties or, if necessary, with the assistance of mediation.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
At the conclusion of her oral evidence, I asked Ms S in light of the questions and issues that were placed before her in cross-examination, would she in any way change or alter the recommendations contained in her Report. Her response was as follows:
“Probably not. At one time I thought maybe the communication between the parents had improved given those text messages, but I think as your Honour pointed out they’re still not talking to one another. When they do, they do it well, they do it in a civil manner and that’s very good. But I think the short answer, your Honour, is no. I think I will commit to the report.”
194. Understandably Counsel for the husband challenged that statement and put to Ms S that if the court was satisfied that the husband would comply with orders and promote the relationship between the children and the wife, that living with him in Bendigo in those circumstances would be the best option for the children. Ms S replied as follows:
“I think the children will probably be happy with that option, and it will be less – less adjustments.”
Ms S was then asked:
Yes, in their best interests?
to which she replied as follows:
“If you allow me to say that I think both Mr Cornelius and Ms Powers are good parents. This has been a very difficult report to write. It is finely balanced. I think there are issues that both of them need to address, and if they do, their kids are going to be better off for it… I will just stay with what I have said, but if the court considers that any major differences have come into play, then that should be taken into account and the balance will go accordingly.”
Ms S was questioned in relation to the dispute the parties have as to what amount of electronic communication should take place between [X] and [Y] and the parent with whom they’re not living. The respective proposals of the parties, as set out earlier in this judgment, were explained to Ms S and she was asked as to what her views were as to the appropriate level of electronic communication. Ms S’s evidence was as follows:
“I think given the relationship that the children have with both parents, I think it needs to be frequent. I think the frequency needs to be determined by the ambience, the kind of relationship that the parents have. Essentially, the conflict, if it continues, be it overt or covert, whether it be the cold war, which is often worse than a fiery one… then I think it has to be limited.
I would probably suggest maybe every second day…the girls are old enough to be able to manage something like that on their own (Ms S spoke positively of SKYPE)… If things improve between the parents and it is more of a… easy relationship between them and the children… then daily would be fine, but if it needs to be restricted, perhaps every second day.”
In her Report, Ms S had recommended that [X] and [Y] spend more of the long summer vacation in [O]. Ms S was told that the parties had agreed that it would be appropriate for [X] and [Y] to spend a greater period of time in the long summer vacation with the parent that they did not habitually reside with. She indicated that she was totally in agreement with that proposal.
Conclusion
This judgment started with the words:
“This extremely difficult matter…”
I would suggest that is something of an understatement.
Whilst many matters are difficult because the parties involved have long-standing issues such as mental health difficulties, drug and alcohol addiction problems, issues of violence and criminal behaviour, and therefore the court is challenged in trying to make arrangements for the children that will ensure that they are properly nurtured and cared for, this is not such a case.
Both parties in this matter, as has been repeated continuously throughout this judgment, are good, honest, hard-working and caring individuals who have been and are loving, caring and nurturing parents. There is no doubt that [X] and [Y] will be well cared for, loved and supported by both of their parents into the future regardless of their living arrangements.
Ms S, whilst ultimately making a recommendation that [X] and [Y] live with their mother in [O], was quite clear in her evidence that it was a finely balanced matter and that what had ultimately persuaded her to that recommendation was concerns about the level of antipathy between the parents and her concerns that the husband did not display the same level of empathy and insight into [X] and [Y]’s needs as did the wife.
Ms S was also concerned that [X], in particular, was becoming aligned with her father and that the husband would be less supportive of [X] and [Y]’s relationship with the wife than the wife would be of their relationship with the husband.
Counsel for the wife, in his closing, referred me to the matter of D & SV (2003) FLC 93-137. Whilst conceding that this decision precedes the 2006 amendments, it was submitted that a consideration of their Honours discussion of the issue of relocation of children in a residence case would be of significant assistance to the court.
With respect to the wife’s Counsel, I would refer him to the recent Full Court decision of Hepburn & Noble [2010] FamCAFC 111. In paragraph 100 of the judgment of the Full Court comprising of Coleman, Strickland and Crisford JJ, their Honours stated as follows:
100.With respect to the guidelines in A v A: Relocation Approach (supra), the appropriateness of these guidelines in light of the amendments to the Act introduced in 2006 was not the subject of substantial argument before us, although at first blush this issue is raised by this ground of appeal. For our part we are concerned that this decision is still being referred to given that since then the Act has been substantially amended via the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), and there have been a number of significant decisions of the Full Court addressing the issue of relocation since those amendments commenced on 1 July 2006. We refer to decisions such as Taylor and Barker (supra), Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, and McCall & Clark (supra). Of course, the Federal Magistrate here had regard to and followed the legislative path now contained in the Family Law Act as amended, but it seems to us that rather than refer to and rely on a decision of the Full Court from prior to the amendments it would have been more relevant for the Federal Magistrate to have had regard to the guidelines and principles emanating from the subsequent Full Court decisions.
Clearly, as noted by their Honours in Hepburn & Noble (supra), this matter must be determined by me in accordance with the requirements of the legislation and relevant case law post 2006.
It was submitted on behalf of the wife that whilst, understandably, [X] and [Y] viewed the move to [O] with some trepidation, they are intelligent, articulate and socially confident girls who would be able to make friends in their new environment and would quickly settle into their new life in [O].
The positive response of [X] to the [omitted] Secondary College was emphasised on behalf of the wife, particularly in circumstances where [X] is changing schools in 2011 regardless of where she lives as she is commencing her secondary education.
The wife argued that the court should consider the observations of
Ms S as to the wife’s greater empathy and understanding of the needs of [X] and [Y] when compared to that of the husband, and that it will be important for them in the new circumstances that unfold in 2011 that they live with the parent who has the greater perception, sensitivity and empathy.
It was also submitted on behalf of the wife that whilst the husband gave evidence that he had moved on from his initial bitterness and anger towards the wife arising from the breakdown of their marriage and her immediate re-partnering with Mr S, the court had to have some concerns as to just how far the husband had moved on. It was argued that his evidence to the court and in particular his allegations of alcohol misuse, the wife being a liar and his refusal to communicate with the wife in relation to [X] and [Y]’s reactions to their new schools, despite her repeated requests that he do so, do not support that the husband has moved on to the extent he claims.
It was submitted on the wife’s behalf that in all those circumstances it was in the best interests of [X] and [Y] that they live with the wife in [O] and spend time with their father every third weekend during the school term, for 10 days in the term holidays and for four weeks in the long summer vacation, as had been agreed between the parties would be the arrangements for whichever parent the children were not living with.
211. It was submitted on behalf of the husband that the factor which should determine this matter, given how closely balanced it is, was the children’s wishes and in particular [X] and [Y]’s clear preference to remain living in Bendigo with their father.
It was argued on behalf of the husband that [X] and [Y] are mature, intelligent, articulate young girls and very substantial weight should be given to those views. Accordingly, it was argued by the husband’s Counsel that [X] and [Y] should be allowed to remain in Bendigo where they have stability, including friendship groups, their school environment, extended family, longstanding extra-curricular activities, their family home and a father with whom they have a close and loving relationship and who is able to properly care for them and meet their ongoing needs.
It was further submitted on behalf of the husband that there was no evidence before the court that the husband would not support and nurture [X] and [Y]’s relationship with their mother and that absent such evidence, the fine balance which had tipped Ms S’s recommendations in the wife’s favour was overturned and accordingly the girls should remain living in Bendigo with the husband.
Ultimately, when determining this matter, in addition to considering all of the factors under section 60cc of the Act, it seems to me that there are two major competing factors that I must weigh, each against the other, in determining where [X] and [Y] ultimately live. On the one hand [X] and [Y] have expressed clear views that they wish to remain living in Bendigo where they are happy, comfortable and secure. Against this is my findings that whilst both parties are loving and caring parents, the wife was more convincing in her understanding of, empathy with and greater insight into both [X] and [Y] when compared to the husband.
Further, whilst the husband has clearly moved on from the high levels of anger and bitterness felt by him, quite understandably, at separation, it was apparent throughout his evidence that he is still very unhappy and hurt by the separation and that both [X] and [Y] are very conscious and continue to be exposed to these feelings. Whilst I am quite satisfied that the husband would abide by any orders of this court, I do have doubts about his ability to actively promote [X] and [Y] spending time with their mother in [O] in circumstances where [X] and [Y] may start to resist having to travel to [O] as they get older and their social and peer commitments start to take on greater importance to them.
In these circumstances and balancing the factors that must be looked at by me in determining what is in the best interests of the children pursuant to the Family Law Act 1975, I have formed the view that it is in [X] and [Y]’s best interests to live with their mother in [O] and to spend regular time with their father in Bendigo in accordance with the arrangements that the parties have proposed.
In relation to the issue of electronic communication, I am of the view that such communication should take place every second day between 7.00 pm and 7.30 pm, and at such additional times as is reasonably requested by either of [X] and/or [Y].
Finally I note that in the running of this matter, and in light of concerns expressed by the wife, the husband’s evidence was he would agree to an order that he not take either of [X] and/or [Y] as pillion passengers on any motorbike ridden by him.
I certify that the preceding two-hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 14 January 2011
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