Dias & Olford

[2021] FCCA 1788

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dias & Olford [2021] FCCA 1788

File number(s):

DGC 4333 of 2020

Judgment of:

JUDGE BURCHARDT

Date of judgment:

6 August 2021

Catchwords:

FAMILY LAW – parenting – application by mother to change consent orders entered into in June 2019 – mother deciding to relocate substantial distance from Suburb B where both parties living at time of final orders – mother revealing change of residence 7 days after final orders – parties compromising on changeover and the child’s school – weight to be given to views of 12 year old child – consideration of effect of separation of children – consideration of Rice & Asplund – not in best interests of children to vary extant equal time regime – application dismissed

Cases cited:

 Rice & Asplund [1978] FamCA 84

SPS & PLS [2008] FamCAFC 16

Number of paragraphs:

78

Date of last submission/s:

9 July 2021

Date of hearing:

9 July 2021

Place:

Dandenong

The Applicant:

The Applicant appeared in person

Counsel for the Respondent:

Ms Borger

Solicitor for the Respondent:

McCormack And Co

ORDERS

DGC 4333 of 2020

BETWEEN:

MS DIAS

Applicant

AND:

MR OLFORD

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	6 AUGUST 2021

THE COURT ORDERS THAT:

1.The mother’s application filed 9 December 2020 be dismissed

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Dias & Olford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BURCHARDT

INTRODUCTORY

1. This is a parenting dispute about the best interests of two young children, X, born in 2008, and Y, born in 2011.  The children presently live with their parents on a week-about arrangement pursuant to final orders made by consent on 20 June 2019.

2. Within less than a week of those final orders the mother purchased a property in Town C.  This was, and is, a substantial distance from Suburb B, where the parents were both living when the orders were made.  She seeks that the children now live predominantly with her and spend alternate weekends with their father, together with half school holidays.  She seeks to enrol the children at school in Town C, which is convenient for her.

3. The father seeks that the current regime of time continue, but that in the alternative the children would live with him and spend the same amount of time with the mother as she proposes for him.

4. For the reasons that follow, I think it is in the best interests of the children that the current orders continue.  It should be noted that the father has taken a Rice & Asplund objection.  Whether or not there has been a material change of circumstances, given the way the matter has actually unfolded, might be said to be a nuanced issue.  What I am clear about, however, is that it is in the children’s best interests that the current arrangements remain.

   THE AGREED OR UNCONTROVERSIAL MATTERS

5. The father was born in 1973 and is employed as an engineer.  The mother was born in 1972 and has commenced employment relatively recently full time as a customer service officer in the Region D.  The parties entered into a relationship in 2006 and separated on 2 November 2017.  There were substantial proceedings in relation to both property and parenting matters, which culminated in the 2019 orders.  As part of those proceedings a family report was prepared by Ms E, dated 24 September 2018.  While the contents of that report obviously were not the subject of cross‑examination, and Ms Dias, during the proceeding before me, indicated that she would have wished to challenge them, there are some matters which are, nonetheless, worthy of note.

6. From what X told Ms E, it is clear that the mother, unlike the father, had involved the children, more particularly X, in adult issues.  It is also clear that the children loved both parents but felt, to an extent, conflicted owing to their awareness of the parents’ mutual dislike.  The report recommended that the children live with the father and spend time with the mother over two weeks in a nine/five arrangement.

7. As earlier indicated, the 2019 orders provided for a week-about arrangement.  They also provided for a cash payment to the mother from the father of over $335,000.  At that time both the parties lived in Suburb B.

8. As earlier indicated, only seven days after those orders were made the mother sent a message to the father (2 to the father’s first affidavit) which relevantly stated:

   We just bought a house in Town C so we wont be doing changeover in Suburb B after October.  I think Town F is the mid point.

9. It is also apparent that as the issue of X’s high schooling came around the mother engaged in substantial investigations and it was agreed that X would be enrolled in Town F Secondary School, being approximately halfway between the parties’ by then anticipated residences, with the father in Suburb B and the mother in Town C.  Y continues to attend Suburb G School, where she is now in year 4.  X was in year 6 last year and both her and her sister’s school reports are satisfactory.  It should also be noted that the parties’ notices of risk reveal no matters of concern on the part of the mother, and, indeed, no notifications of any form of risk at all.  The father’s refers to historical risks, but indicates that there are no current ones.

   THE PARTIES’ AFFIDAVITS AND OTHER MATERIALS FILED

10. The mother has filed only one affidavit on 9 December 2020, together with her originating application.  It gives a very brief outline of the relationship and the birth of the children.  It noted that X had continually commented that she wanted to be settled in one home, especially because she was about to undertake secondary school in 2021, and asserted that X had been diagnosed with clinical anxiety.  Perhaps the gravamen of the affidavit is paragraph 5 in which the mother deposed to X’s alleged constant request to have a home base in her care, and that the mother had had to move further out to Town C because this was where she could afford to purchase a home.  This necessitated four hours’ driving each day to and from schools.  She asserted that she was currently unemployable as a result.  She went on to depose as to the travel times between her home and Suburb G and her home and Town F and the resultant difficulties to which this gave rise.

11. The father’s first affidavit filed 12 February 2021 gave slightly more details of the relationship and the children, albeit likewise in very sketchy terms.  He deposed to the orders being made on 20 June 2019 and the receipt of the mother’s message about Town C on 27 June 2019.  He deposed to the children both attending Suburb G Primary School from the start of their education and appended their school reports for the second semester 2020 which, as I have already observed, were unremarkable.  He deposed to the choice of Town F Secondary College for X in 2021, and that the children were well-established at his home in Suburb B where they had friends and that X was well-settled in Town F Secondary College, where she had made friends and seemed to love it.  He went on to depose that X had never said to him or otherwise indicated she was unhappy with the week-about arrangement, and that he had no knowledge of the alleged involvement of X with any health professional.

12. In his second and final affidavit filed 30 June 2021 the father largely repeated the earlier narrative, save that he gave a much greater degree of history of the mother’s longstanding problem with alcohol and associated difficulties for the children.  He deposed at paragraph 35 to the arrangements whereby he takes the children to school when they are in his care and deposed that X was now loving Town F Secondary College, where she had been enrolled for six months.  He deposed that he understood that the mother was employed in full‑time employment with a charity in the City H/Town J area.  He referred to the Rice & Asplund point in passing and stated that in light of the mother’s likely loss of her driving licence, and other difficulties if the children did not remain in the current arrangements, they should live primarily with him.

13. The mother did not file any further affidavits but addressed a number of letters to my associate.  The first, sent on 5 July 2021 at 9.40 pm, was largely argumentative.  I note that the mother asserted that she was seeking further qualifications and asserted that her lack of employment might have been a greater contribution to the children’s academic success in 2020.  She accused the father of damaging Y by feeding her memories that she was not capable of knowing on her own (a response to matters revealed to the section 11F report).  The email ended, “All I request is the court recognises the children's voices, acknowledgement of my continued studies into the behaviour and psychology of children should also be a consideration but my children's voices should be of primary concern”.

14. A second email sent on 6 July 2021 at 11.07 am relevantly took issue with the narrative of her prior difficulties in the father’s affidavit.  She repeated the allegation that Y had false memories.  She went on to assert that she commenced full-time employment in May of this year as customer service officer in Town K and complained of the four hours driving that this involves per day as a result.  She asserted that for her to get Y to school they had to leave home by 6.30am and that her partner collected Y from school when she is working and drives her to her work, whereas X catches the bus with her friends and then a train to Town C where she collects her.  She went on to assert that she was three-quarters of the way through completing her qualifications with L University and was also about to complete a graduate diploma with M University. 

15. She said she did not intend to remove X from Town F Secondary School but that it was not possible to enrol Y at Town F Primary as it was zoned.  She traversed the terms of the section 11F report in terms that are not perhaps entirely fully accurate, but asserted, “X will be turning 13 in October and I feel that her wishes should weigh heavily into this discussion and outweigh Mr Olford’s personal attacks towards me as this is not about me, it’s about what’s best for them”.  She went on to seek that the children live primarily with her as per their wishes and made a number of criticisms of the children in the father’s care.

16. A further email sent on 6 July 2011 at 11.53 pm takes the matter no further.  A final email on 6 July 2017 at 7.23 pm seeks that the father’s application be dismissed,

    as my daughter now refuses to return to his home and has made her own decision as to where she will reside and where she will allocate her time.

    I believe this renders your honours decision on the matter unnecessary as she refuses to return to his home and is old enough to make this decision independently of the courts involvement.

    There are no issues of risk at my home, as such DFFH have no involvement and I trust she will finally be heard in matters pertaining to her and where she wishes to reside.

17. Text messages also sent by X 24 June relevantly say, “Hi.  I’m going to stay with mother for next week and I want to stay with her full time for now but I will still see you in the holidays”.

    THE SECTION 11F REPORT

18. The section 11F interviews took place on 15 June 2021.  Family Consultant Ms N noted the parties’ competing positions, traversed the allegations of coercive control and sexual abuse of the mother, and the father’s countervailing concerns about the mother’s alcohol use.  She noted the concerns each raised about the other’s mental health.

19. Ms N noted that the mother’s assertion that the family report was based on lies and the recommendations of time 70/30 with the father, which is why she has consented to the fifty‑fifty arrangement (paragraph 8).  The report noted the difficult communication between the parties (paragraph 11).  The report noted the main dispute was in relation to residency and that it was asserted that X had voiced ongoing wishes to live with the mother and the mother’s difficulties with school drop offs and pick ups as a result of her recently obtained employment (paragraph 12).  The mother proposed to enrol Y at Town C if both children lived with her.

20. At paragraphs 13-14 the report noted:

    It was somewhat evident during the assessment that the parties have differing views on parenting, and both criticised one another’s approaches. Despite this the children did not raise any significant issues for them during their interviews and reported similar general rules in each household. It may be beneficial to the parties to focus on their own parenting of the children rather than the denigration of the others.

    The shared care arrangement between the parties has been in place for a lengthy period of time.  Whilst distance has seemingly become an issue since the mother relocated and whilst her reasons are understandable, at this interim stage changing Y’s primary school, which she has attended since kindergarten would not be in her best interests. If the mother was unable to sustain the travel it will be likely that parenting arrangements will need to change. In addition to this, if X was to live with the mother then the children would be separated for a lengthy period of time.

21. The report traversed the interviews with X and Y.  X enjoyed her secondary school and has made good friends there (paragraph 15).  Paragraphs 16-17 of the report noted:

    X spoke positively about living with both her parents, although that her mother was easy to talk to and in general it felt awkward at times with her father. X raised no concerns with either home and although the rules were very similar in each household at times she did not find it fair at her fathers. X stated that she got along well with her sister and that they were close.

    When discussed about the living arrangements, X stated that her mother had suggested some options to her which she agreed to. She stated that this was to live with her and spend alternate weekends with her father. She maintained that she had been wanting to change the current arrangements before this conversation with her mother. X stated that she was did not know why she wanted to live with her mother and that it was because she got along better with her. She stated that if the arrangements remained then this would be ok although she was a bit worried about her father’s reaction to her wish.

22. Y presented as happy and pleasant (paragraph 18).  She spoke positively about both living environments at her parents’ homes and when asked if anything worried her about living with her mother, she stated that there was something that happened ages ago at their old home but she did not want to share this with anyone as she did not want to upset people (paragraph 19).  At paragraphs 20- 21 the report asserted:

    When changing schools was discussed, Y appeared aware of this possibility. She stated that she agreed with her mother and that it was not fair for her to travel to take her to school but that she also wanted to stay at her current school and she had been there since she was younger and would miss her friends.

    When the proposal was suggested to Y about staying more in either parents care she stated that this would make the other parent feel bad and if they had done something wrong. Y said she would be mad if she did not live with her sister.

23. Under the heading Issues for the Children at paragraphs 22-23 the report noted:

    Any significant changes to parenting arrangements could likely affect the children’s wellbeing, stability and relationships at this stage. Whilst X’s views should be acknowledged, there are no current immediate factors that would suggest any changes be made at this interim stage. Furthermore it would be not seem to be in the children’s best interests to have them living separately when it was apparent during the assessment that they have a close relationship with each other.

    Concerns were identified for Y and her emotional wellbeing during the assessment due to her own past worries at her mother’s home. Whilst Y stated she felt uncomfortable speaking to the writer about this, she identified that her sister was someone she could talk to about it. It will be important for the parties to ensure that Y and X’s emotional needs continue to be addressed and that they are engaged with support fi required. 

24. The report went on to recommend that the current arrangements in the final orders on 20 June 2019 remain in place, that the parties consider mediation in an attempt to resolve the matter, that they communicate through a parenting app and that restraints be made as to denigration and the discussion of court and adult issues with the children.

    THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT

25. What follows is taken from my notes.

    The Opening and Evidence of the Mother

26. The mother said it was only because her daughter requested the matter that orders should be changed.  X is going through puberty.  There is no threat of harm in her care.  She was here to advocate for the children and seeks the orders in her application.

27. Once called and affirmed, the mother adopted her affidavit as true and correct.  She indicated that she was a customer service officer.  She tendered a bundle of documents as exhibit A1.

28. Exhibit A1 is a bundle of not interconnected documents.  The first page shows that she works a 38 hour week, earning $3183 a fortnight before tax.  She had redacted the name of the employer for reasons that seem unclear to me.  The second page is a document relating to further education certificates, dated from 2018.  The third page is the text message to the father on 24 January 2021 indicating that X wishes to be with her mother, already referred to.  The following page is a character reference, which is irrelevant.  The fifth page is a copy of the offer of employment commencing 13 May 2021 as a full-time, ongoing employee.  The final pages are photographs of the mother and children.

29. Under cross-examination the mother confirmed that the application was simply made because of her daughter’s views.  She made no allegations against the father.  Y was at school in Suburb G.  She had tried to get her into Town F Primary but that was not an option because it is zoned.  She will not take X from Town F High.  She seeks a change of school for Y.  There are smaller schools in Town F but that might be a confronting change for Y.  Town C Primary is slightly smaller than the present school.  She gets up at 6.00 am and leaves at 6.30 am, then she gets back to City H by 9.30 am for her job after dropping X off to school. 

30. She confirmed she agreed the 2019 orders.  A week after she told the father she had bought in Town C.  She settled in November.  She sought to change changeover, but did not seek to change time.  Town F was an agreed point for changeover.  She had done a lot of work comparing schools.  Town F was the obvious choice and the father agreed.  X has been there for two terms now and has a tutor for maths.  She would consider Town F for Y.  It would work for her.

31. X was upset for the first two days at the new school.  Y is very strong and would always survive whichever secondary school she goes to.  This is a year and a half away.  The mother confirmed she had read the section 11F report.  X said she would prefer to live with her.  The father is difficult to communicate with.  It is just the way he is.  X said she was worried about the father’s reactions.  She had recently had an anxiety attack when her computer cracked (as a result of asserted fears of the father’s response).  When asked if X will be okay if things stayed the same, the mother said that X tries to appease everybody. 

1. X was in her bedroom when she sent the text to the father “for now”.  She might change her mind again and she would support this if it happened.  When it was put that she was seeking a 10/four arrangement for X, the mother said she would not force X to spend time.  She then went on to say that she does not influence her daughter.  She encourages her to speak her mind.  She gives X the opportunity to voice her opinions.  She is not going to force her to go where she does not want to go.

2. The mother confirmed that X is not seeing any health practitioner at the moment.  She saw Mr O in 2019.  She was diagnosed with clinical anxiety earlier.  X had suicidal thoughts earlier this year.  She had told the father but he will not discuss it.  X had told the father she was depressed and he told her to speak to the mother.  He had not referred her to the health line and had told her she was stupid when she was depressed.  Counselling with Mr O had ceased because it was too expensive, and she had not asked the father for help in that regard. 

3. She conceded that she lacked support in Town C.  She conceded that she was hospitalised in 2018 and that the children spent one night with the father.  When it was put that the father has supports, the mother responded rhetorically “does he?”  When it was put that the father’s mother lives in Suburb P, the mother said she could not tell the last time that she spoke to the paternal grandmother.  She would not discourage time with the paternal grandmother.  Y in particular had a good relationship with her.  When it was put that the father has a sister able to help the mother said, “What happens in his home I’m not privy to and don’t care”.

4. The mother confirmed that her partner is Mr Q.  They have been together for 12 months but she has only recently introduced him to the children.  He lives in City H and, if I understood the answer correctly, is a retired member of the military.  He collects Y quite regularly and has done so since she started work.  In re-examination the mother referred to her living arrangements.  Town C was not her first choice but she only had $330,000.  The contract for Town C was signed on 4 July 2019 but in response to questions from the Court she confirmed that she had been looking before that. 

   The Evidence of the Father

5. Counsel indicated that she relied upon her written submissions and did not otherwise open the matter.  She called her client.  He adopted his affidavits as true and correct.

6. Under cross-examination by the mother the father said that her qualification was not irrelevant.  He said he had reduced his hours of work so he could help with home-schooling.  He had overlooked X’s work on maths.  The mother took issue with this and said it was all done on Google Classroom, but the father said it was also done on Seesaw and Compass.  These were two apps from the school.  He oversaw what she did on her device.

7. The father said X is forthright with him.  When asked about the recent message indicating X wished to live with the mother he said this was the only message.  He does not interrogate X.  He said things were put into her head by the mother.  He said that he and X talk about a lot of things.  He said there might be other issues coming up, such as the loss of the mother’s driving licence (a proposition she appeared to me to agree with).  He lives six kilometres out of Suburb B, but there is a bus station 400 metres away.  There was a U bus this year.  X walks up a dirt road to get home. 

8. The mother put a series of rolled up questions relating to X’s present lack of engagement with a psychologist and her own part completion of a degree.  The father said he was prepared to engage with mental health practitioners.  X can ring the Kids Health Line if she wants to.

9. It was put that there was no private iPad time for the children.  The father said he limits time to two hours per night.  The children speak to their friends on the phone.  Y speaks to R and another girl.  X talks with S and T.  There are no iPads allowed in their rooms, however. 

10. It was put that moving to Town C was not a significant change.  The father said this would be a move away.  The father said that the mother had moved away.  She had got a job further away.  She wanted to take the children even more.  She had not really compared her position with renting and could have got a job and mortgage.  When asked if he had ever thought of moving closer, the father said Y could not get into Town F.  He also did not want to disrupt Y’s schooling.  When it was put that he was quite content for the mother to be driving for four hours a day the father’s answers suggested he was not particularly sympathetic and that this was just a result of her own decisions.  When it was put that they might try and find a school closer to Town F available by public transport, the father said he would look at that.

11. The mother put a concern to the father as to whether he had done any parenting courses to assist his teenage girls.  He said he had attended U Counsellors.  He had also undertaken a parenting course.  He had discussed X’s periods with her.  He told her he had put some pads in the top drawer.  He told her she could talk to her grandmother, his sister or anyone else.  He had a bin for used tampons beside the toilet.  He denied that X had had to throw one behind her chest of drawers.  He did not agree that the two teenage girls wanted to live with the mother.  X could bring a boyfriend or a girlfriend home.  The father confirmed he had had the children for one week during the school holidays.  It was put that the children might be scared to tell him things and he agreed.

    Final Submissions by Counsel for the Father

12. Counsel relied upon the written submissions.  The issues were submitted to have narrowed.  The central issue was X’s wishes but there was also Y’s school.  X’s views were recorded in the section 11F report.  There was a preference to live with the mother, but she was okay with the current arrangements.  There were no risk issues and the text only said “for now”.  There might be further changes in the mother’s care.  There has been share care since January 2018.  Counsel referred to the first family report.  The children are stable and the children are close.  The mother says she wants school around Town F, but her application is for Town C.  The children’s issues are important but not determinative.  There was no evidence of anxiety on X’s part.  Town F Secondary School was chosen by agreement.

13. So far as travel time was concerned, the mother moved effectively one week after the orders were made.  The father would consider changing Y’s school.  The mother is employed and is engaged in further study.

    The Final Submissions of the Mother

14. The mother said X was scared of the father’s reactions.  She is scared he will hate her if she wants more time with her.  She had no opportunity to cross-examine Ms E.  Suburb G is inconvenient for her.  She did not look for work last year because of home-schooling.  She wanted X to go to the secondary school with friends.  She is driving four hours per day.  The child could move schools.  She said it was about putting the children first.  She gets up at 6.30am.  There is a small Catholic school in Town F or V School.  This would be four composite classes.  That was a big change from a school of 900 children.  The mother cannot get Y into Town F Primary.

    Brief Observations about the Witnesses

15. The mother struck me as being extremely dogmatic.  The father in his affidavit material had described her as being a very aggressive driver and her demeanour in court was entirely consistent with this.  Although she articulated her position as being one where she did not seek to coach X, the language she used about this suggests to me in the strongest way that she has been nothing shy in suggesting to X that she should move to her.  I will return to this aspect of the matter later.

16. The mother’s attitude towards the Court is a matter of significant concern.  What she said and how she said it suggests that she may struggle to appreciate that court orders are not there to be trifled with.  During cross-examination these two parents, who plainly dislike each other, started to conduct themselves in a fashion more suited to a domestic dispute than to the process of taking evidence in a court, and I had to remind them of this.

17. The father did not present as quite as lacking in insight as the mother but, nonetheless, a number of his answers suggested, as was the case with the mother, a concentration upon his own interests and needs rather, perhaps, than those of the children.

    THE COURT’S VIEWS AS TO WHAT HAS ACTUALLY OCCURRED

18. The parties entered into final orders just two years ago.  These orders were comprehensive and covered both parenting and property issues.  They were entered into on 20 June 2019.  The orders provided the mother with in excess of $330,000.

19. The mother had already been looking to purchase a property before that date.  I have no difficulty in inferring that she had already isolated Town C as a place she would be looking to buy.  She signed a contract to purchase in Town C on 4 July 2019 and settled in November 2019.  She completely failed to alert the father to this possibility prior to the orders being made and, indeed, afterwards.  There is but little communication between the parties.

20. Thereafter, and having moved, changeover was agreed, essentially, at Town F as a midpoint, and it was arranged for X to commence secondary school at Town F Secondary.  Y, who has been at Suburb G now for some years, has remained there.  It is clear that X is happy at Town F, where she has made friends.

21. Self-evidently, of course, the children lived in the Suburb B area, where the father lives, all their lives, until relatively recently.  They must have friends and contacts there and the father’s family, at least, appear to be not that far away.

22. The mother’s position plainly is that she had not thought through the practical consequences of her move to Town C at the time she entered into the final orders.  She has now obtained employment, albeit only recently, and finds the lengthy travel involved burdensome to her and also, by inference, to the children.  However, it would appear, if I understand the evidence correctly, that X makes her own way home on public transport, and that Y is collected by the mother’s partner.  It is disturbing to note that the mother did not reveal the existence of this partner until the very latter stages of the proceeding, in circumstances where he plainly plays a significant role in the lives of the children.

23. The mother now plainly wants the elder child and the younger child to live with her.  She would reenrol Y in a school at Town C if she has her.  Whether she would enrol her in Town F Secondary might be open to question.  I suspect that if the primary residence is transferred to the mother she will seek a transfer of the school to Town C because that suits her.

24. I should make it clear that I formed the clearest view that the mother’s primary motivation in pursuing this matter is not the wishes of X, although these plainly form a significant part of the matter.  From what she said and how she said it, what really annoys her is the amount of driving she presently has to do as a result of the situation of her work and her employment.

    HOW DOES THIS ALL PAN OUT IN TERMS OF THE LEGISLATION?

    The Father’s Rice & Asplund Objection

25. As the decision of Warnick J in SPS & PLS [2008] FamCAFC 16 makes plain, a Rice & Asplund objection does not have to be taken in a discrete, preliminary way.  Whenever the doctrine is applied, however, it is first and last a matter of the children’s best interests.  In this instance, perhaps unusually, the parties have given evidence and the matter has been heard in a rather more fulsome way than would normally be the case.

26. The first issue that arises is whether there has been a material change in circumstances.  The answer to that is both yes and no.

27. The answer is yes in the sense that the mother has moved much further away from where she was living at the time the final orders were made and obtained employment yet further away.  This is clearly a change in circumstances given the extra driving involved, both for the mother and the children.

28. In another sense, however, there has been no material change in circumstances because the move is a unilateral one that the mother has taken which, quite plainly, she did not notify the father of at the time the orders were made.  The orders necessarily involved a measure of compromise.  It is correct to say that whatever reservations might be felt about Ms E’s report, the father was negotiating from a position where the report had recommended that the children spend the majority of their time with him.  An equal shared care outcome was plainly a concession of a sort, at the very least.  The mother’s underhand (as I have no doubt it was) decision to relocate a considerable distance away might well make sense to her in simple economic terms, but it was plainly a decision made to suit her interests and one that paid no regard whatever to the best interests of the children.  It is not a material change in circumstances in the sense that the mother well knew she was going to do this at the time of the final orders and the fact that she has obtained employment a bit further away, once again, is a matter that would have been within the reasonable contemplation of the parties, had she been more frank about what her intentions were.

29. In an overarching sense, it is entirely unconscionable to reward the mother for the fait accompli which she has presented to the father and is, in effect, seeking to present to the Court.

30. Just a week after the final orders on 27 June 2019, the mother told the father she had bought a house in Town C and demanded a change in the changeover arrangements agreed to only a week before.  To his credit, the father entered into discussions arising out of this new development (the house contract was signed on 4 July 2019 and settled in November 2019) and it was agreed that changeover would be at Town F and that X would go to Town F Secondary College.

31. The mother had not thought through the implications of her move and, of course, the amount of driving she had to do went up substantially.  This was possible, no doubt, during the period of home-schooling but clearly become more difficult when that ceased.  The matter has been further compounded by the mother’s obtaining employment yet further away from Suburb B in May 2021 and she now complains raucously of the travelling that this has given rise to.

32. I should make it clear that having seen both these witnesses, they both want what is convenient for them.  Although the mother stresses that she is only seeking to give weight to X’s views, from everything that she said it is plain that the primary source of her discontent is the very substantial amount of driving that this now presently involves.

33. I note that X has been at Town F for several terms, now coming up to three, and is well-settled and has friends there.  Y is well-settled at Suburb G, where she has been since she commenced school, and also has friends there.  The children lived the whole of their lives in Suburb B until 2019 and it is to be inferred that they had found friends there, and I note that the father’s family are not far away and that Y in particular has an excellent relationship with her grandmother.

34. The father has not repartnered, it would seem, but the mother has.  It is a matter of concern that the mother did not reveal the existence of this partner until almost by chance in the latter part of the hearing.  He has been in the children’s lives for some time and regularly collects Y from school.  This, of course, militates against the amount of driving the mother has to do and that appears to be also limited by the fact that X catches public transport home.  Given her age, that is not, in my view, problematic.

35. I have no doubt that the mother has deliberately endeavoured to create in X an apprehension that her father will be insufficiently attuned to her needs as a young woman entering into puberty.  I have equally no doubt that he is as sensitive to that as he can be.  His lack of insight in not allowing the children privacy to use their iPads is part of a somewhat strict and controlling approach which he will do well to reconsider as the girls get older. 

    The Rice & Asplund Objection

36. I note and repeat my concerns that the mother said words to the effect that she would never force X to go anywhere she did not want to go.  As I find, and have no difficulty in inferring, the mother is lukewarm about X spending time with the father, and is plainly intending to have her live with her.  Indeed, I have no doubt that she also plans to keep Y with her and will reenrol her in Town C when that occurs because it makes no logical sense not to.

37. Thus, in a sense, the question as to a material change of circumstances is somewhat nuanced.  It could be seen either way.  There is something inherently unattractive about rewarding the mother for her own decision-making which, plainly, did not put the best interests of the children at the forefront of her thinking.  While, of course, at one level of analysis her decision to buy where she could afford to own a home outright is understandable and sensible, she plainly paid no attention to the amount of driving this would involve for the children and that is a significant matter.

38. It is important to remember, however, that the Court is concerned first and last with the best interests of the children.  There can be no question on a punishing the mother for her decisions. What is the Court to do in these circumstances?

39. The matter that militates most effectively in favour of some change being put in place is X’s views.  From what she told the section 11F report writer, it would appear that she may wish, given her age and stage of development, to be more primarily in the care of her mother.  That is understandable.  As things presently stand, the application is only formally pressed in respect of X, and this would self-evidently mean that the children would spend substantial periods of time apart. 

40. I note the mother’s position is that X will continue at Town F, which involves substantial amounts of travel in any event and which would, indeed, be consistent with the travel she presently undertakes.  If I make the orders the mother seeks it should be noted that the amount of time X spends travelling to school will not diminish on any view of the matter but will remain the same.  Indeed, if I grant the orders the mother seeks, the mother will still be doing enormous amounts of travelling because Y will still be in Suburb G.  In truth, the mother’s application only makes sense if she presses for Y to live with her and the school to be relocated to Town C or the like. 

41. The things that militate against any change in circumstances are, first of all, that this is the arrangement the children have been in for an appreciable period of time.  Shared care has been in place for two years.  The children must be taken to be well-established in their routines.  Even the travel from Town C to Town F or Suburb G has been going on for the better part of a year, since November 2020.

42. The Court gives weight to the observations of the section 11F report to the effect that while X’s views should be acknowledged, they should not be made decisive.  She is 12, coming on 13 and, in any event, was prepared to accept the status quo.  The message sent of recent times to her father is, in my view, likely to represent considerable encouragement on the part of the mother, and cannot be taken to be a concluded view. 

43. Even if I am wrong as to that, the section 11F report recommendation that Y remain at Suburb G is not one that can be overlooked.  It is very significant.  If Y stays at Suburb G, as I have no doubt is entirely appropriate and in her best interests, the orders that the mother seeks will not actually diminish the amount of travel the mother has to do and of which she so much complains, but it will not reduce the amount of travel, and the amount of time it takes for X in any event.

1. Furthermore, the mother’s present application would involve separating the children.  They are very fond of each other and it is wholly undesirable that they be separated. 

2. A balancing up of these competing matters, in my view, leads to the conclusion that no change in the living with and spend time arrangements should take place.  They have been in place for some time.  The children are used to them.  The father should take onboard the matters that concerned X that have emerged in this proceeding and would do well, as I have indicated, to give the children privacy on their electronic communications.  Nonetheless, I do not accept that he is not attuned to his elder daughter’s difficulties as the change of life comes upon her.  The orders should stay as they are.

3. Having said this, it should be noted that the position in which the mother finds herself is, of course, a daunting one.  The travel must be extremely burdensome to her and although it is directly arising as a result of her own choices she obviously merits a measure of sympathy in this regard.  I note that the father has said he is prepared to contemplate Y going to school somewhere near Town F and would commend a further exploration of that option.

4. Nonetheless from what I have said above it is clear that the application to change the existing parenting arrangements should be dismissed, and I will so order.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:  

Dated:       6 August 2021