Davies & Tait

[2005] FamCA 220

[2005] FamCA 220

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT CANBERRA  CAF 1111 OF 2001

Ms DAVIES

AND:

Mr TAIT

RESERVED JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE FAULKS

DATE OF HEARING:                 25 & 26 March 2004

DATE OF JUDGMENT:               1 April 2005

APPEARANCES: 

Ms Godtschalk for Ms Davies (Applicant Mother)
Mr Hodgson for Mr Tait (Respondent Father)

MATTER:  DAVIES v TAIT
  CAF 1111 OF 2001
CORAM:  Faulks DCJ

DATE OF HEARING:  25-26 March 2004

DATE OF JUDGMENT:  1 April 2005

CATCHWORDS: FAMILY LAW - CHILDREN - RELOCATION - CONTACT and RESIDENCE - BEST INTERESTS - s 68F(2) Family Law Act - Wishes - Separation from Siblings

CASES CITED: AMS v. AIF; AIF v. AMS (1999) 199 CLR 160; Z v. W (unreported) [2003] FamCA 126, decided 5 March 2003; U v U (2002) FLC ¶93-112; Payne v Payne [2001] 2 WLR 1826; Jones v Dunkel [1959] HCA 8; A v A (2000) FLC ¶93-035; H v L (2000) FLC ¶93-036

REASONS FOR JUDGMENT
CAF 1111 of 2001
DAVIES v. TAIT

In Canberra

25 & 26 March 2004

Apology

1. I sincerely apologise to the parties and the lawyers in this matter for the time it has taken me to deliver this judgment.  At the conclusion of addresses I expressed the view that I had originally intended to give my judgment at the end of the proceedings but found that I needed to ponder some of the submissions that had been put to me.  I certainly never contemplated that I would need to ponder them for as long as it has taken me to produce this judgment.  The delay is unacceptable.  I apologise unreservedly.

Foreword

1. This case involved a proposed relocation of the applicant mother to Perth from Canberra.  She proposed that the youngest of the three children of the parties namely C, born in January 1991 and therefore nearly 14 and a half, should live with her in Perth.  No orders were sought by either party about the other two children M, born in July 1988 and therefore nearly 17, and R, born in July 1984, nearly 21.  R had been living with her father since January 2001 after the parents separated in July 2000.  M has been substantially living with his father since the end of 2003.

1. The mother originally sought orders that M also move with her to Perth but by the time the hearing had commenced she did not seek any orders in relation to M.[1]

[1] See mother’s summary of argument ¶2

1. Property matters between the parties had been resolved in August 2003 by order.  At that time also orders were made about the children.[2]

[2] The orders discharged orders in relation to M, born July 1988 and provided that C reside with her father from after school on Thursday in one week until she returned to school on Tuesday morning of the following week and spends the following week with her mother. At all other times C was to reside with her mother.

1. The mother claimed she needed to move to Perth: as her extended family lived in Perth; she would be more able to obtain employment and accommodation; and she needed to preserve her mental health by removing herself from the father. 

1. The father, who travelled a lot during the course of his work, opposed the move but recognising that the mother inevitably would move sought that the children should live with him and that there should be holiday contact between them and their mother. 

Background

1. The parties were married in 1979 and separated in or about July in 2000. 

1. The father began proceedings when he filed an application for contact in January 2001. This resulted in orders made by consent on an interim basis at the end of that month.  In May 2001 the father applied for property division and later that month the Federal Magistrate made interim property orders. 

1. In November 2001 the father sought residence of the children.  An amended response was filed by the mother in February 2003 and later that year in August the mother filed an application seeking relocation.  Two days later the father filed an application seeking that the children live week about with each of the parents.  Interim orders were made for C pending the hearing of the relocation application.  These provided that she spend six nights with the father and eight nights with her mother in each fortnight period.  The matter came on for hearing in March 2004 and at the conclusion of the hearing I reserved my judgment. 

Further background information

1. It was not challenged that the mother had been the primary carer for the children.  Equally it was not challenged that the father had been more focused on his career.  His job involved him in fairly significant travel. 

1. The parties’ evidence both by affidavit and otherwise and the two family reports in this matter both confirm that C has an established relationship with each of her parents and with her siblings. 

1. The father had re-partnered although his new partner Ms V and her own children did not live with him at the time of the hearing.  The father proposed that in due course there would be a blended family.  The mother had not re-partnered.  There was an unfortunate incident around about Christmas 2003 when the mother, whose evidence on this point I did not accept, deceptively removed the children to Perth allegedly for a holiday but possibly with something more permanent in mind.  For his part the father then engaged in a further act of deception in retrieving the children. 

1. The actions of neither were acceptable in any way.  Each to some extent demonstrated a disregard for the interests of the children in favour of his or her own ends. 

1. The mother had determined that it was necessary for her health and well-being to live in Perth irrespective of the outcome of the relocation case.  The parties were agreed that contact should occur during school holidays with a block period during Christmas.  The mother proposed that if the father were able to travel to Perth (which he did apparently fairly regularly for business) that he could have further periods of up to a week’s contact with C provided she received reasonable notice. 

1. Each of the parties agreed that essentially the children could correspond with each other and with the other parent by telephone, e-mail or internet at any reasonable time. 

1. The parties were agreed that the costs of travel between Canberra and Perth should be shared although it is noted that the mother’s proposal involved more contact than the father’s. At least it appears that this is so.

Issues

1. I originally reserved my determination in this matter because this is a case in which a number of factors tend to counter-balance each other.  Although ordinarily it would not be appropriate to make orders about a young person of age 14 contrary to her expressed wishes, this was not a solution in this matter because her wishes were, to some extent, equivocal.  The parties had essentially agreed (properly) that M should make up his own mind about where he wanted to live. 

1. In some respects the mother’s desire to move to Perth is a very strong assertion of her right to the freedom of movement. This “right” was discussed by the High Court (particularly in the dissenting judgment of his Honour Justice Kirby) in AMS v AIF; AIF v AMS.[3]  His Honour Justice Kay, (on behalf of the majority of the Full Court in Z v W[4]) also referred to a speech of Kirby J’s delivered on 27 October 2002 in these terms:

   “I think it is fair to say that at least with respect to relocation cases within Australia, the weight of the majority opinion of the High Court was in favour of recognising that relocation orders should be more readily allowed, at least when compared with applications to take a child to another country”.

   [3] (1999) 199 CLR 160

   [4] Determined on 5 March 2003

2. The right of freedom and movement was of course qualified in U v. U[5] where their Honours said[6]:

   “... that whatever weight it should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent”.

   [5] (2002) Fam LR ¶93-112

   [6] ¶89

1. And their Honours added[7]:

   “…the reality is that maternity and paternity always have an impact upon the wishes of mobility of parents; obligations both legal and moral, the later sometimes lasting a lifetime, restrict of a personal choice of movement have been incurred.”

   [7] ¶92

2. Their Honours in the Full Court in Z v W (supra) went on to say in paragraph 63 of their judgment about the trial judge’s determination:

   “it seems to pay little, if any, regard to the right of the unchallenged resident parent to live her life, at least within Australia, as she wishes.”

3. In this matter the mother is not the “unchallenged residence parent”.  She has been the primary carer.  Her proposal for moving however is not dependent upon C moving with her.  This may in part be a matter of forensic tactic.  As was remarked in Payne v Payne:

   “In very many cases the mother’s application to relocate provokes a cross-application by the father for a variation of the residence order in his favour. Such cross-applications may be largely tactical to enable the strategist to cross-examine along the lines of: what will you do if your application is refused? If the mother responds by saying that she will remain with the child then the cross-examiner feels that he has demonstrated the impact of refusal upon the mother would not be that significant. If on the other hand she says that she herself will go nevertheless then the cross-examiner feels that he has demonstrated that the mother is shallow or uncaring or self-centred. But experienced family judges are well used to tactics and will readily distinguish between the cross-application that has some pre-existing foundation and one that is purely tactical.”[8]

   Sometimes it is very difficult for a parent seeking to relocate to decide whether or not to say that he or she will go irrespective of whether the children go with him or her.  Equivocation about whether or not the parent would leave without the children may indicate a lack of resolve.  The alternative of asserting that the movement will occur irrespective of whether the children go or not may be regarded as cold-hearted, of his or her failing to put the children’s interests first.  Although some of the evidence would support the proposition that the mother was inclined to put her own interests ahead of the children it was to the father’s credit that he reported to the counsellor[9]:

   “[The mother] is a good woman and a good mother.”

   [8] [2001] 2 WLR 1826 at 1840 [42] per Thorpe LJ, cited in U v U at [138]

   [9] ¶3 report 8 May 2003

4. The counsellor also commented about the mother that her parenting style was very “conscientious”, “structured” and “affectionate”.[10]  The counsellor did note that “the respondent experiences life as stressful and the parenting responsibilities are perceived as a burden from which there is little relief”.[11]  On balance I do not conclude that the mother’s proposal to move to Perth with or without C was an indication of her failure to put the children’s interests ahead of her own. 

   [10] Family Report 2003, [4.7]-[4.11]

   [11] report 8 May 2003 ¶4.7 – 4.11

1. One significant issue which caused me considerable concern was the real possibility, in my opinion, that if either or both of the younger children were with their mother in Perth the influence of the mother and of her mother particularly, may have the effect of alienating them from their father.  That was certainly a fear of the father.  Moreover, although each of the parents separately agreed that if C wanted to move to the other parent, he or she would facilitate that movement; the father doubted that C would be able to do this once she fell under the influence of her mother’s Perth family. 

1. Also in issue was the relationship and support that C might derive from her siblings.  Ultimately however I do not regard that as being significant.  Although generally speaking it is agreed that the relationship of siblings with each other is a matter of great importance particularly in circumstances where parents have separated, there was no expert evidence given about that particular question.  In addition I was somewhat attracted by the frankness of C’s comments in this regard[12]:

   “that the move to Perth would not substantially alter her contact with her siblings because [R] and [M] were often out”.

   [12] Family report 18 November 2003 ¶47

1. This of course is a somewhat superficial assessment on her part because it fails to take account of the background support and affection that the two older children could offer her.  Nevertheless it has some accuracy.  Given the ages of the children it would be impossible to predict with any accuracy how much longer either R or M would remain members of their father’s household. 

1. Finally there was the issue associated with the husband’s new partner.  She did not give evidence.  Somewhat belatedly at the hearing the father’s counsel offered to make her available for cross-examination.  That offer was declined. 

1. Subsequently Ms Godtschalk sought to argue initially for an adverse reference to be drawn arising out of the principles enunciated in Jones v Dunkel.[13]  However as appears from the exchange between counsel and me in addresses ultimately Jones v Dunkel would not require me to draw an adverse inference against the father.  Equally of course, the father did not have the benefit of his new partner’s evidence to support his case. 

What each of the parents sought

[13] Jones v Dunkel [1959] HCA 8

1. The applicant mother sought that,

   1.   that C reside with the mother who shall be responsible for her day-to-day care, welfare and development;

   2.   that the applicant mother be permitted to relocate to Perth with C;

   3.   that C have contact with the respondent father as follows,

   a.   for a minimum of three weeks each Christmas school holiday by agreement or, failing agreement,  from 22 December 2004 to 12 January 2005 and for this period each alternate school holiday period commencing in an even-numbered year; and from 4 January 2006 to 25 January 2006 and each alternate year thereafter;

   b.   for the whole of each alternate term holiday (being the school holidays at the end of terms one, two and three) commencing on first Sunday after the beginning of the Perth term, concluding on the Friday prior to recommencement;

   c.   at such times as the father is in Perth for periods up to one week provided that the father gives the mother at least five days notice in writing prior to any such visit;

   d.   by telephone one a week and from the father at any reasonable time provided it is before 8.30pm Perth standard time;

   e.   by internet or email in accordance with the child’s wishes; and

   f.   at such other times as agreed;

   4.    subject to Order 5, the parties equally share the cost of the child’s travel;

   5.    that the parties do all acts and things to make travel arrangements for the child including booking and payment of the airfare, the responsibility alternating between the mother and father for the whole of each contact period. The party that has made the travel arrangements shall advise the other parent as soon as practicable;

   6.    that the father make any request for alterations to the specified contact in writing, such request to be received by the mother on or before 21 days before the contact is to commence.

The respondent father sought that,

1.    in the event that the applicant mother remains living in Canberra, that C reside with both parents on a week-about basis with the changeover being each Friday at 6pm;

2.    that M reside with the respondent father and have contact with the applicant mother as he so requests;

3.    in the event that the applicant mother moves to Perth, that C and M live with the father in Canberra;

4.    that the children have contact with the applicant mother as follows:

a.two weeks during the mid-year school term;

b.four weeks over the Christmas period at times as agreed;

c.unlimited email or internet contact;

d.reasonable telephone contact; and

e.at such other times as can be agreed;

5.    that the parties share the reasonable costs of the children’s travel between Canberra and Perth.

Proposals

1. The Full Court of the Family Court in A v A[14] and H v L[15] suggested that a judge considering an application for relocation should consider the proposals each of the parties made and to evaluate them along with their submissions and make a determination about what would be in the best interests of the child or children.  This approach has to some extent been expanded by their Honours in U v U (subsequently affirmed by the High Court[16]) to the effect that the parties’ proposals do not limit the trial judge.  However the trial judge is obliged to identify with the parties any alternative proposal he or she wishes to implement in orders in due course. 

   [14] 2000 FLC ¶93-035

   [15] 2000 FLC ¶93-036

   [16] 2002 FLC ¶93-112

1. In this matter there was no alternative proposal that remained possible that had not been considered by the parties. 

1. To some extent that is not entirely true because I had indicated that I wished to take some opportunity to ensure that C was able to communicate any change of mind she may have about where she was living to an independent person who could ensure that her concerns would be put before a court if necessary.  Both parents accepted this amendment to their proposals although neither was able to indicate with any certainty how the arrangement might be carried out. 

The mother’s proposal

1. The mother’s proposal was that she moves to Perth.  It was necessarily vague about where she would live and what employment she would obtain but she expressed unqualified optimism about her ability to achieve both accommodation and employment within a short time.  An advantage for her in living in Perth was the support of her family.  A further advantage was that she would be removed from what she saw as the adverse influence of her former husband.  If C were to live with the mother as she proposed, it was probable that the father would get to see her in Perth at least twice a year, if not more often when he visited Perth on work commitments. 

The father’s proposal

1. For his part the father proposed that the children should live with him and that C (and M) should see their mother during school holiday periods.  On his proposal there may be less contact available.  There is no suggestion the mother will be travelling east for her employment, whatever that may be. 

1. The father had adequate accommodation; C could continue to attend her present school.  The children would be able to give each other mutual support to the extent that siblings of their ages could do so or would do so. 

1. In due course he saw that there would be advantage to the children in some blended family arrangement with his new partner and her children. 

Disadvantages with the mother’s proposal

1. The mother’s proposal, certainly from the father’s point of view and to some extent, in the opinion of the counsellor, involved the real risk that C would be alienated from her father if she fell under the influence of her Perth extended family.  Although there was little direct evidence, the father was convinced that his former mother-in-law was antipathetic towards him and would influence C or M against him. Also, although the mother insisted on the importance to the children of stability, her move to Perth would necessarily involve C in some destabilisation by her having to change schools, friends and environment[17].  Inevitably the move to Perth would cause difficulties about contact with expenses associated with contact, and also that contact would only occur during school holidays. 

   [17] see Mr Hodgson’s submissions transcript of final addresses (hereafter called T) 26 March 2004 p 14 l 21

Disadvantages with the father’s proposal

1. To some extent the father was an untried quality as a full-time parent.  M had begun to live with him at the time of the trial but that had not been the arrangement for long.  This allegation in my opinion was not realistically based.  The father may have been less involved with the children in the past than the children’s mother but she did not raise any serious complaint about his ability to care for them.  She asserted with some justification (it would appear from past experience) that she would be better able to care for C on a day-to-day basis.  However this is a difference of degree rather than of significance.  The counsellor indicated that she was hopeful that the father was going to become more involved with C in the future. 

1. Contact would also be expensive and to some extent difficult if C were to be living with her father in Canberra.  His proposal about contact maybe less in time then the mother’s and necessarily his proposal would not involve the additional opportunities for contact offered by his work commitments offered in Perth. 

Other factors

1. The counsellor, in her first report on 8 May 2003, commented[18]:

   “[f]rom observations and comments it appears that both [M] and [C] are more emotionally enmeshed with their mother then is helpful in the teen-aged years when they need to be experiencing a greater sense of autonomy”.

   [18] ¶6.4

1. Thus on the one hand there is some uncertainty about the father’s ability to become more involved in C’s life, and also on the other hand a concern that being with her mother may create a degree of enmeshment for C which would be detrimental to her. 

Relevant factors under section 68F(2)

1. Although C said she would like to try living in Perth[19] there remained some doubt about the long-term nature of her wishes. Each parent to some extent seemed to want to enlist the children in support of his or her application.  I am not satisfied that C has strong wishes one way or the other about where she would live.  Her primary short-term wish I accept was at the time of the trial that she would live at least for the time being in Perth. 

   [19] Family report November 2003

1. I recognise that in any order I make, it is necessary for me to provide some vehicle for C to express her wishes if they should change in the future.  In this regard I propose to order that one of the counsellors of the Family Court in Canberra be available to be a confidant for C and I propose to request that the Family Court at Perth make available a counsellor of its Court to provide a similar role for C in Perth.  In each case the counselling that C undertakes (if she does) with her “expert friend” should be privileged.  This is notwithstanding the difficulties with the definition of what constitutes a child counsellor under the terms of the Family Law Act1975.  It is arguable that counselling undertaken by a counsellor with a child is not “child counselling”.  This nonsensical inclusion is derived from a consideration of the interaction of section 19N and the definitions in s 4 of the Family Law Act.  If C, in discussion with her “expert friend”, concludes that she wishes to move from the parent with whom she is then living, the counsellor will then put her in touch with the Legal Aid Office either in Perth or in Canberra. C may possibly make her own application or perhaps more importantly, the counsellor may broker some level of communication between the parents about C’s wishes.  This should only occur where C consents. This should be a furtherance of C’s wishes not a breach of her confidences. 

1. I have already commented to some extent that C enjoys a good relationship with both parents.  I have also commented about the practical difficulties and expense associated with contact.  To some extent this is now inevitable as the mother has chosen to live in Perth.  There is therefore little to be preferred in either proposal on this account alone. 

1. There are contrasting advantages and disadvantages with each parent in providing for the emotional and psychological and developmental needs of C. Generally it is to be said that each parent has an appropriate attitude to parenting.  There is a contrast between them in that the father seeks to make the children more independent[20]. 

   [20] see t p 14 l 21

1. There is suggestion that the father’s conduct towards the mother perhaps in the presence of C is such as to fall within an extended concept of violence under s 68F(2)(i) of the Act. I am not sure that I would regard the evidence as supporting that contention. However the animosity between the parents is palpable and C unfortunately is in the middle of this trying to pacify and to some extent comfort each parent. A resolution of these proceedings will be of assistance to her in this regard as well.

1. In the same vein the mother argues that her mental health depends upon her being able to be removed from the father and to live with the support of her extended family in Perth.  I think that she probably genuinely believes this now.  I am not sure that there is any objective basis for her belief. However I do not doubt her sincerity. 

Summary of relevant factors

1. Taking account of the relevant factors then and noting that it is not incumbent upon the mother in this situation to demonstrate compelling reasons for her moving to Perth, there is little to choose between the two proposals. 

1. It is tempting to suggest that because of her age C might be better off with her mother.  In this regard I do not accept the father’s somewhat off-handed response to this proposition of saying that her sister R could supply whatever counselling and information C might require as she goes through her teenage years.  I am not however qualified to make that particular assessment and it is not one that the counsellor necessarily supports. 

1. The factors that support C’s going to Perth are her expressed wishes although that is qualified in the manner I have suggested above.  In addition, the mother’s stronger relationship with C over the years is a factor that I can, and should properly take into account.  It is also encouraging in part that there would be more opportunities for C to spend time with her father if she were in Perth then it would be for her mother to spend time with her if she were in Canberra. 

1. The father in the past has found it difficult to accommodate the requirements of his family or the reasonable emotional and temporal demands of his family with the requirements of his work.  This may continue in the future.  Equally however it has to be said that one does not know what constraints will be placed upon the mother by whatever employment she obtains.

1. The father may have the advantage of the support of his elder daughter and possibly his new partner.  The extent to which either of those factors might assist him is not clear to me. 

1. The relationship between the siblings might be thought to provide an answer to these proceedings but I think on balance it does not.  C’s comment about the growing involvement of her elder siblings with outside activities is, I think, perspicacious on her part. 

1. Weighing all those factors with some reluctance, because the issue is so evenly balanced I believe that C should accompany her mother to Perth.

1. My determination in this regard is based principally upon the wishes expressed by C but also on her relationship with her mother and the other factors that I have mentioned above.  On balance in my opinion they support (perhaps only just) my determination. 

1. Given the time since the hearing of the matter it may be the parties have reconsidered the sort of contact that they believe would be appropriate.  For my part I believe that there should not be less then three substantial periods of contact a year during school holidays.  This should involve two of the school holidays and up to four weeks during the summer vacation.  This may depend a bit upon the availability of the father to participate.  In addition C should have the advantage of seeing her father if he travels to Perth and as both parents have agreed contact by email, letter and telephone should be substantially unrestricted. 

1. I propose to make an order in the following terms:

(a)That a counsellor of this Court nominated by the Court Counsellor (but not necessarily excluding her) will make himself or herself available to C as a counsellor to discuss notwithstanding the conclusion of these proceedings any issues that C may subsequently become engaged in.  In particular, but not in any way limiting the generality of the foregoing, if C wishes to talk to the counsellor about where she wants to live for the future (being different from the place at which she is presently living) that counsellor will assist C to organise her own thoughts and if she wants to pursue the matter further, at her request, to discuss the matter with her parents or alternatively to put her in contact with the Legal Aid Office to enable her to obtain further legal advice about what proceedings she might pursue in her own right or how she might more effectively negotiate with her parents.

(b)In addition, I request that the Family Court in Perth authorise and direct one of their counsellors to provide a similar arrangement for C when she is living in Perth.

(c)I will allow the parties seven days in which to refine and agree upon orders about contact substantially in line with the proposals I have set out above.  If they are unable or unwilling to do so within that period I shall make orders as I have set out above. 

(d)The matter will be removed from the pending cases list.