Diggs and Diggs
[2009] FMCAfam 1319
•16 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DIGGS & DIGGS | [2009] FMCAfam 1319 |
| FAMILY LAW – Parenting – where the mother relocated from [N] to the [M] area after separation – where the children are currently living in [N] with the father – where the mother wishes the children to join her in the [M] area – where the mother is concerned and upset about the father’s extra-marital conduct during the marriage – relevance of the father’s conduct to the current parenting issues – whether the children’s relationship with the father might be undermined if they lived predominantly with the mother. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Mazorski & Albright (2007) 37 FamLR 518 Godfrey & Sanders [2007] FamCA 102 |
| Applicant: | MR DIGGS |
| Respondent: | MS DIGGS |
| File Number: | NCC1188 of 2009 |
| Judgment of: | Terry FM |
| Hearing date: | 21 & 22 October 2009 |
| Date of Last Submission: | 9 December 2009 |
| Delivered at: | Darwin |
| Delivered on: | 16 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boyd |
| Solicitors for the Applicant: | Bell & Johnson |
| Counsel for the Respondent: | Mr Hartley |
| Solicitors for the Respondent: | Arnold Lawyer |
ORDERS
That the parties have equal shared parental responsibility for the children [X] born [in] 1999, [Y] born [in] 2001 and [Z] born [in] 2004.
That the children live with the father.
That the children spend time with the mother as mutually agreed between the parties and failing agreement:
(a)If the mother resides within 200km of the children’s normal residential address:
(i)each alternate weekend during school terms commencing on the first weekend of each school term and commencing at 6.30pm on Friday and concluding at 3.00pm on Sunday, extending to 3.00pm on Monday should the Monday be a Public Holiday, Pupil Free Day or Teachers Strike Day;
(ii)from 7.00pm on Christmas Eve to 3.00pm on Christmas Day in 2010 and each alternate year thereafter;
(iii)from 3.00pm on Christmas Day to 6.30pm on Boxing Day in 2009 and each alternate year thereafter;
(iv)for the first half of each school holiday period in even numbered years, commencing from 6.30pm on the last Friday of the school term and concluding at 6.30pm on the midpoint day for such holiday period;
(v)for the second half of each school holiday period in odd numbered years commencing from 6.30pm on the midpoint day of such holiday period and concluding at 6.30pm two (2) days prior to the children re-commencing school;
(vi)on the children’s birthdays as agreed between the parties;
(vii)on the Mother’s Day weekend in each year, if not already a spend time weekend, from 6.30pm on Friday until 3.00pm on Sunday.
(b)If the mother resides more than 200km from the children’s normal residential address:
(i)each third weekend during school terms commencing on the first weekend of each school term commencing at 6.30pm on Friday and concluding at 3.00pm on Sunday, extending to 3.00pm on Monday should the Monday be a Public Holiday, Pupil Free Day or Teachers Strike Day;
(ii)from 3.00pm on Christmas Day to 6.30pm on Boxing Day in 2009 and each alternate year thereafter;
(iii)from 7.00pm on Christmas Eve to 3.00pm on Christmas Day in 2010 and each alternate year thereafter;
(iv)for the whole of the Term 1 and Term 3 school holidays each year;
(v)for the first half of the mid year and end of year school holiday periods in even numbered years, commencing at 6.30pm on the last Friday of the school term and concluding at 6.30pm on the midpoint day for such holiday period;
(vi)for the second half of the mid year and end of year school holiday periods in odd numbered years commencing at 6.30pm on the midpoint day of each holiday periods and concluding at 6.30pm two (2) days prior to the children re-commencing school;
(vii)on the children’s birthdays as agreed between the parties;
(viii)on the Mother’s Day weekend in each year, if not already a spend time weekend, from 6.30pm on Friday until 3.00pm on Sunday.
(ix)at such additional or alternate times as may be agreed between the parties.
That the mother’s time with the children be suspended for the entire weekend on which Father’s Day falls.
That for the purposes of the children spending time with the mother the father shall deliver the children to the mother at the park at [W] or such other mid-point location as may be agreed between the parties at the commencement of the mother’s time with the children and the father shall collect the children from the mother at [W] or other such mid-point location as may be agreed between the parties at the conclusion of the mother’s time with the children.
That the mother have telephone communication with the children each Wednesday and Sunday between 6.30pm and 7.30pm with the mother to initiate the calls and the father to ensure that the children are available to receive the calls.
That the father have telephone communication with the children when they are with the mother for the school holidays each Wednesday and Sunday between 6.30pm and 7.30pm with the father to initiate the calls and the mother to ensure that the children are available to receive the calls.
That each party shall promptly notify the other as soon as practical and in any event with two (2) hours of such admission or treatment should the children while in their care be injured and require admission to hospital or require treatment at the Emergency Department of a hospital
That the mother may obtain from the children’s schools copies of the children’s school reports, newsletters, order forms for school photographs and any other information normally provided to the school by parents and may attend events at the school normally attended by parents.
That each party shall keep the other advised of their residential address and landline and mobile telephone number and inform the other of any change to these details within seven (7) days of the change.
That each party promptly enrol in and attend all sessions of a Parenting after Separation course.
IT IS NOTED that publication of this judgment under the pseudonym Diggs & Diggs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC1188 of 2009
| MR DIGGS |
Applicant
And
| MS DIGS |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Diggs and Ms Diggs separated in January 2009. They are in dispute about whether their children [X], 10, [Y], almost 8 and [Z], 5, should live with the father in [N] or with the mother in the [M] area. The two locations are approximately four hours and forty minutes driving distance apart.
The evidence
The documents relied on by the father were his affidavits filed on
24 March 2009 and 15 July 2009 (two affidavits) and the proof of evidence of his mother, Ms D.
The orders sought by the father were set out in his case outline document filed on 20 October 2009.
The documents relied on by the mother were her affidavits filed on
27 May 2009, 1 July 2009 and 1 October 2009, the affidavit of her partner Mr H filed on 2 October 2009 and the affidavit of her father Mr J filed on 1 July 2009.
The orders sought by the mother were set out in her case summary filed on 13 October 2009.
All of these witnesses were cross-examined.
A Family Report was prepared by Dr Todd Jacobsen and he also was cross-examined.
On 1 November 2009 after the hearing was concluded, Dr Jacobsen was suspended from practice as a psychologist for three months after the Psychologists Registration Board of Victoria found that he had engaged in profession misconduct of a serious nature on five occasions.
The Board found that in obtaining and interpreting pathology results on his clients Dr Jacobsen had acted outside the scope of his practice. Medicare rebates were improperly obtained for three clients in respect of pathology tests and this also was found to be unprofessional conduct.
In addition to being suspended for three months Dr Jacobsen was reprimanded and ordered to undergo supervision of his practice for eighteen months.
The disciplinary proceedings were brought to the attention of Counsel in November 2008 and Counsel were given the opportunity to make further submissions before judgment was delivered.
The father’s Counsel submitted that the disciplinary proceedings should not affect the weight to be given to Dr Jacobsen’s report in the current proceedings. Dr Jacobsen was cross-examined on 22 October 2009 and no attack was made on the methodology he used in preparing the particular Family Report before the court.
The mother’s solicitors did not seek to re-open the matter and advised that the mother was “prepared to allow the existing Family Report of Dr Jacobsen to remain in evidence for Her Honour to take into consideration in respect to the Judgment”.
Background
The mother is 39 and the father is 40. They commenced cohabitation in 1990, when they were both about 19, and married in 1991. They have three children: [X] born in November 1999, who has just turned 10, [Y], born in December 2001 who will be 8 very shortly and [Z], born in April 2004, who is 5½.
The father was employed by [D] during the first half of the marriage. In 2001 he was transferred to a position in [R]. The family moved to [N] and the father travelled from [N] to [R] for work.
The father grew up in [N]. His parents have lived there since 1968. One of the father’s sisters, who has Down Syndrome, also lives in [N]. His other sister lives in Brisbane.
[X] was about 2 when the parties moved to [N], and [Y] and [Z] have lived in [N] all their lives. The parties purchased a home in [N].
The father continued to work for [D] until 2003, when he resigned, and the parties then commenced a [omitted] business in [N].
The parties’ marriage suffered what proved to be a catastrophic blow in 2007 when the mother discovered that for the preceding eight years the father had regularly visited massage parlours.
The marriage did not immediately end after the mother found out about the father’s activities. The father promised the mother that he would instantly cease these activities and the parties went to marriage counselling. The marriage continued through the remainder of 2007 and throughout 2008.
During this period the [omitted] business the parties had been operating since 2003 was being affected by the economic downturn and by a drought in the [N] area. The mother also found the long working hours which the business demanded of the parties difficult. They agreed to close the [omitted] business effective 15 December 2008.
The family went on holidays to Queensland over Christmas 2008, but upon their return to [N] the father and mother had a serious argument. After the argument the mother carried on with her plans to take the children to [M] area to spend time with her parents. On 4 January 2009 she telephoned the father and informed him that the marriage was over and that she would not be returning to [N].
The father contacted his solicitor who wrote to the mother asking her to return the children to [N].
The mother and children returned to [N] following this correspondence. The mother resumed living in the former matrimonial home with the children and the father moved in with his parents and spent time with the children when he was not at work. The father had taken a position as a [omitted] following the closure of the business. The mother travelled back to [M] every three to four weeks with the children to spend time with her parents.
On or about 23 March 2009 the mother unilaterally relocated to [M] with the children. The father wasted no time in filing an application in the [G] Local Court seeking a recovery order. On 7 April 2009 the Local Court ordered that the children be returned to [N]. The children were returned to the father on 13 April 2009 but the mother herself did not return but remained living with her parents.
The court proceedings were subsequently transferred to the Federal Magistrates Court at Newcastle.
On 8 July 2009 the matter was listed for final hearing in October 2009 and interim consent orders were made providing for the children to live with the father in [N] and spend time with the mother each alternate weekend from Friday until Sunday and for one week of the school holidays at the end of Term 3. The mother has spent the time with the children more or less in accordance with the orders since 23 June 2009.
The father’s extra-marital conduct
The father’s evidence was that for about eight years prior to November 2007 he regularly had massages. He admitted that the end result of the massages was sexual relief. He denied having sexual intercourse with the service providers. The father kept his activities secret from the mother.
The mother does not accept that the father only had massages. She unshakeably believes that the father had sexual intercourse with prostitutes. She also referred to the father’s activities as “extra-marital affairs”.[1]
[1] Mother’s affidavit filed 1 October 2009 paragraph 3
During cross-examination the father quietly and sincerely expressed his regret about the hurt which his behaviour during the marriage had caused to the mother. He accepted responsibility for his actions and made no attempt to justify his behaviour or to cast any blame on the mother for his choices.
The father was quietly adamant that he had kept his promise and had not engaged in similar conduct after the mother confronted him in 2007. He was also adamant that he had never engaged in this conduct in [N], but only in other centres, particularly when he was travelling in the course of running the business. He denied leaving the home during the evening for these purposes.
The mother refuses to accept that the father ceased the conduct in 2007. However she was not able to produce any evidence that the father had broken his promise. The mother tendered telephone records which confirmed that the father had made calls to people advertising their services in newspapers prior to November 2007, but did not produce any telephone records for the period after November 2007. It is reasonable to conclude that if any such telephone records existed the mother would have produced them.
The mother was also not able to produce any evidence that the father had engaged in the conduct in [N].
The father was unshaken in cross-examination on these issues and I accept his evidence that he has not engaged in the activities since 2007 and that he never engaged in the activities in [N].
The current circumstances of each of the parties
The father lives in the former matrimonial home in [N] with the three children.
The mother and father have not yet had a property settlement and the mother questioned whether the father would be able to keep the former matrimonial home in [N]. The father was adamant that this was achievable. I cannot resolve this dispute, but if the father is unable to retain the home he should easily be able to obtain alternative accommodation in [N].
The two older children attend [S] Primary School in [N] and have done so since kindergarten. They play netball in winter and are also involved in other activities such as gymnastics, dance and tennis. They often go to their paternal grandparent’s home after school and remain there until the father returns home from work.
[X] has had some difficulties at school in the past but the father’s evidence, unchallenged by the mother, was that she had shown steady improvement over the past few years due to “our efforts to encourage her and through tutoring.” [Y] is making satisfactory progress at school.
Prior to April 2009 [Z] attended [omitted] Child Care for part of each week. When the children came into the sole care of the father in April 2009 the father was unable to meet the fees due to other financial commitments. He explored the option of enrolling [Z] at [S] School but the school, after trialling [Z] there for two weeks, formed the view that [Z] was too young to commence school in 2009.
[Z] is currently cared for by the father when he is not working and by the paternal grandparents when the father is at work. He will commence kindergarten at [S] School in 2010 if he remains in [N].
The father is employed as a [omitted] and works on a shift roster. On at least two nights a week the father is required to get up at 3 or 4 o’clock in the morning and on those nights the father and the children sleep at the paternal grandparents’ home and the paternal grandparents get the two older children off to school in the morning.
The father said that he was seeking other employment which would allow him to be home with the children every night. He recently made one such application and was unsuccessful.
The father has not re-partnered.
The mother proposed that the children should live with her in the [M] area. The mother said that she and the children needed a fresh start in an area where “what the father was up to as far as his addiction to and use of prostitutes was concerned” was not known.
When proceedings commenced the mother was living with her parents in [B] and she proposed obtaining rental accommodation for herself and the children in [B]. However in August 2009 the mother commenced living with Mr H in rented accommodation in [L]. Her proposal at the hearing was that the children should live in [L] with herself and Mr H. The mother met Mr H in December 2008 and commenced a relationship with him in May 2009.
Mr H has a daughter [C], aged 10 who lives with him for a number of nights each fortnight. The evidence about the exact number of nights varied among the witnesses. [C] otherwise lives with her mother in [A] and goes to school in [omitted].
Mr H is a [occupation omitted]. He has a strong employment history and is financially secure.
The mother works casually in the [omitted] business operated by her partner.
The mother and Mr H both conceded that it was too early to be sure about the future of their relationship, but both said that they hoped that it would endure.
If the children commence living with the mother, she will enrol [Y] and [X] (and in 2010 [Z]) at [B] Primary School, which they attended for two weeks in March/April 2009 when the mother took them to [M].
Although each party ran their case on the basis that they wished to remain in their chosen location, they each admitted that they could not rule out the possibility that if the decision went against them they might themselves move to a location closer to the children.
As far as the mother is concerned her relationship with Mr H would be a factor affecting her ability to move and Mr H in turn would need to have regard to his own employment and his responsibility for his daughter [C]. Mr H works at [omitted] which is 350kms from [N] and the mother identified [three locations omitted] as possible locations where she and Mr H could live, although how practical that would be as far as [C]’s time with her father is concerned is another matter.
The likelihood of the mother actually returning to [N] appears remote, and it is difficult to predict which other rural centre the mother might move to if the case went against her.
The father had clearly not given any thought to where he might move to if the case went against him. It would probably be dictated by his ability to obtain employment. The father is keen to retain the former matrimonial home in [N], and moving to the [M] area would represent a considerable dislocation for him.
The children’s best interests
In deciding on appropriate parenting orders for the children I must treat their best interests as the paramount consideration. Sections 60CC(2) & (3) of the Family Law Act 1975, set out the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are as follows:
a)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In the 2007 case of Mazorski & Albright Brown J considered the phrase “meaningful relationship.” After setting out the [dictionary] definition of “meaningful” and “meaning” she said as follows:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.”[2]
[2] Mazorski & Albright (2007) 37 FamLR 518.
The children have a relationship with both of their parents at present which is “important significant and valuable to [them].”
If the children continue to live primarily with the father, I am satisfied that they will also continue to have a meaningful relationship with their mother even if the mother lives at a distance from them. The children have a developed bond with their mother, they will continue to spend time with her and communicate with her regularly and I am satisfied that the father will promote the relationship between the children and the mother.
The mother will not be involved in the children’s lives as fully as she was prior to April 2009, but as Kay J said in Godfrey & Sanders:
“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”[3]
[3] Godfrey & Sanders [2007] FamCA 102
The children also have a developed bond with their father, but I am concerned about whether the children would continue to have a meaningful relationship with the father if they lived primarily with the mother at a distance from their father.
The mother still harbours considerable bitterness and anger toward the father as a result of his extra-marital conduct. She described him as having a “dark seedy and dishonest side to his character.” She said during oral evidence that she had put what happened during the marriage behind her and that she simply now felt sorry for the father and her Counsel submitted that the fact that the mother had repartnered was evidence that she had ‘moved on.”. However it was clear from the mother’s affidavits, from her answers during cross-examination and from the line of questioning pursued by her Counsel in cross-examination of the father that the mother has not put the events of the marriage behind her at all.
The extent to which the father’s conduct issue is still at the forefront of the mother’s mind is illustrated by the following exchange during cross-examination:
Mr Boyd:“Did you make the decision to leave [N] (in March 2009) without consultation with the father?”
Mother: “Just like he made the decision to go to prostitutes without consultation with me.”
Unfortunately when the mother looks at the father now, his extra-marital conduct is the only thing she sees. She is unable at present to separately consider his value as a father to the three children.
The mother admitted that during a recent visit to her by the children [X] asked her about why the parents separated. The mother said that she told [X] that sometimes “Mums and Dads do something naughty and they don’t want to live together anymore.”
It may well be only a matter of time before the mother provides further information to the children.
In my view there is a risk that if the children live predominantly with the mother at a distance from the father, their relationship with their father may be undermined because the mother or her family are unable to refrain from “enlightening” the children about the father’s conduct. The mother may do this even if the children only spend time with her, but the impact of this would likely to be far more damaging and difficult for the children if it occurred in circumstances where they were only seeing the father every few weekends and were not experiencing him as a loving caring father on a daily basis.
As to the second primary consideration, I do not consider that the children are likely to be exposed to abuse (as it is defined in the Family Law Act), neglect or family violence in the separate care of either of their parents.
The mother alleged that prior to separation the father ‘physically assaulted [X] beyond what I would consider normal parental chastisement” She did not expand on this statement but later in the same paragraph claimed that the father “would take out his anger on the two older children by slapping them around the head and other disciplinary measures”.[4] The father denied that he had ever harshly disciplined the children.
[4] Mother’s affidavit filed 27 May 2009 paragraph 14
I treat the mother’s evidence about past events with considerable caution, because she clearly views the past through the prism of the hostility and bitterness she feels toward the father.
Independent evidence does not support a finding that the father harshly disciplines the children. [X] told Dr Jacobsen that neither parent physically disciplined her. [Y] said that neither parent smacked her harder than the other and [Z] said that the mother, father and Mr H all used physical discipline and described his father’s discipline as “the softest”.
Turning to the additional considerations in s.60CC(3), I must first consider any views expressed by the children .
The father said that the children did not wish to move to [M].[5] The mother said that the children were excited about living in [M].[6]
[5] Father’s affidavit filed 24 March 2009 paragraph 25
[6] Mother’s affidavit filed 1 October 2009 paragraph 12
In my view the most reliable evidence about the children’s views is that given by Dr Jacobsen.
As to [X] Dr Jacobsen said as follows:
“When asked how the current parenting arrangements are progressing for her, [X] said that the only thing that she does not like is that she gets tired returning to her father’s care as her siblings and she tend to arrive between 8.00pm and 9.00pm. When asked what changes she would like made to the current parenting arrangements, [X] described spending time with her mother every third weekend, half of all school holidays and two weeks in a block on two occasions during the summer school holidays. When asked specifically, she said that she would like to continue living with her father, “Because he’s more fun.”[7]
[7] Family Report paragraph 49
As to [Y], Dr Jacobsen said as follows:
“When asked for her views about future parenting arrangements, [Y] said that she has not thought about the topic and, therefore, does not know what she would like. However, in the context of discussion, she said that it would be “good” if the current arrangements were maintained. When asked, [Y] said that there are no changes that she would like made if the current arrangements were maintained. When asked specifically, she said that she gets to spend enough time with her mother.”[8]
[8] Family Report paragraph 43
As to [Z] Dr Jacobsen said as follows:
“[Z] said that he would like to continue living with his father, “Because I love him”.[9]
[9] Family Report paragraph 53
The mother’s counsel submitted that the children might have been influenced by the father in expressing these views to Dr Jacobsen. However in my view the evidence does not support a finding that the father is a domineering person who might have overborne the children’s wills or unduly influenced them prior to the report interviews.
I must consider the nature of the relationship of the children with:
i)each of the children’s parents; and
ii)other persons (including grandparents or other relatives of the children).
I am satisfied that the children have a good relationship with each of their parents.[10]
[10] Family Report paragraphs 54 – 59 and not disputed by either parent during the hearing.
The children also have a close relationship with the paternal grandparents. Prior to separation the parents often called on the paternal grandparents to care for the children and the father has continued to do this since April 2009 when the children were returned to his care in [N].
I am satisfied that the children have a good relationship with their maternal grandparents. However they have not spent such extensive and regular time with their maternal grandparents.
The children’s relationship with Mr H is still a work in progress.
Dr Jacobsen reported that [X] and [Y] and [Z] had “generally favourable” things to say about Mr H. I cannot make any findings about the children’s relationship with Mr H’ daughter [C].
I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
This is one of the matters of central importance in this case.
I am satisfied that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between the mother and the children. He gave calm and convincing evidence about how he valued the mother as a parent.
I am not convinced that the mother has the willingness and ability facilitate and encourage a close and continuing relationship between the children and the father. The mother is simply unable to put behind her the bitterness and anger she feels about the father’s extra marital activities.
Dr Jacobsen was also concerned about the mother’s attitude to the father. He said:
“Ms Diggs’ poor judgment in moving with the children a considerable distance from Mr Diggs without first consulting him, thereby depriving the children from spending time with their father, is of considerable concern to the writer in the recommendations he must make regarding with whom the children should live, That is, her actions do not inspire confidence that Ms Diggs will support a relationship between the children and their father in the future.”[11]
[11] Family Report paragraph 68
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:
a)either of their parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the child has been living.
An order that the children live with the mother in [L], her preferred place of residence, will result in a significant change for the children. They have lived most or all of their lives in [N], in close proximity to their paternal grandparents. The girls have always attended the same school, they have friends in the area and they attend extra-curricular activities in the area.
It was the mother’s case that it would be beneficial for the children to move to [L]. She could then resume her role as their primary caregiver, a role she had always performed well. The mother particularly emphasised that she did not work nights as the father did and would be available to care for the children at all times, so that they would not be required to sometimes spend the night in a different home.
I accept that the children love their mother and that they have a good relationship with her and I accept that during the marriage she cared well for them but in my view there are many reasons to be concerned about the possible effect on the children of a move to [L].
If the children move to [L] they will move into a home with their mother and Mr H. Mr H’s daughter [C] will also be living there for part of the time and [X] and [Y] will share a room with [C] when she is there.
If they move to [L] the children will be required to adapt simultaneously to a number of changes. They will leave behind their friends, their school, their usual extra-curricular activities and their daily contact with their father and their paternal grandparents and will be required to adapt to living in a blended family with Mr H and [C].
Dr Jacobsen conceded that children are adaptable but it is impossible to be certain that the children would comfortably adapt to all these changes at once.
If the children live predominantly with the mother they will inevitably be exposed for lengthy periods to the mother’s totally negative view of the father, and might be given information by her about what occurred during the marriage. This might in turn affect their relationship with the father, or it might simply confuse and upset the children and even turn them against their mother.
The mother expressed concern about the children remaining in [N] because she said that the father’s activities were known to members of the community in [N] and that the children’s life in [N] could become uncomfortable as a result.
The father’s activities are known to some people in [N], because the mother told those people about them. I am not inclined to be too critical of the mother for doing that, as the initial time after the father’s activities were revealed to her must have been a difficult for the mother, and it was only natural that she would have felt the need to talk to someone.
There was no evidence however that the father’s activities are widely known in [N], or that the family has been ostracised or subjected to “ridicule and judgment” by the residents of [N] or that the children had been singled out for teasing at school. The father’s activities last occurred more than two years ago and in any event it is possible that the reactions of the [N] community would be more nuanced than the mother’s reaction, although I am not critical of the mother for the way she reacted.
I must consider the practical difficulty and expense of the 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 a parent on a regular basis.
The driving distance between [M] and [N] is about four hours and forty minutes although the drive takes longer with stops. If the parents each continue to live in their chosen location the distance they live apart will inevitably affect the children’s right to maintain personal relations and direct contact with each of their parents on a frequent basis, although they will still be able to see each parent regularly.
The father was concerned about the effect on the children of being required to travel from [N] to [M] each alternate weekend to spend time with the mother. The mother agreed that this was tiring.
This difficulty could be mitigated by one parent moving closer to the other but unless this happens the current arrangement of the children spending each alternate weekend with the parent with whom they do not live is not in their best interests.
I must consider the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs.
The mother was the primary caregiver of the children during the relationship. The father said however that prior to separation he was always a “hands on” father and was involved in almost every aspect of the children’s lives, including their care on a daily basis and their social and sporting activities.
The mother denied that the father had any significant involvement with the children in their early years. She insisted that he only showed an interest in them after his “extra marital” activities were discovered.
I prefer the father’s evidence about this issue. The father was a calm and responsive witness. The mother’s evidence both in affidavits and orally in respect of anything to do with the father was infused with considerable bitterness, and I treat her evidence about the father’s past involvement with the children as unreliable.
I place weight on the following evidence in the Family Report as likely to provide a more accurate and balance assessment of each parents past involvement with the children:
“While the quality of the relationship between the children and each of their parents is not in dispute, it is important to note that [Z], [Y] and [X] each appear to have a good relationship with each of their parents. This suggests that Mr. Diggs and Ms. Diggs have created an environment conducive to the development and maintenance of a relationship between the children and themselves. Furthermore, the children being intelligent, reasonably articulate, socially oriented and well behaved suggests that Mr. Diggs and Ms. Diggs have taken these aspects of their parenting role seriously. It is also important to note that both parents were appropriate while interacting with the children. All of the above suggests to the writer that Mr. and Ms. Diggs each have important strengths as parents.”[12]
[12] Family report paragraph 68 (first occurring)
In my view [X], [Y] and [Z] are fortunate children in that they have received high quality of care from each of their parents during their lives. I am satisfied that each parent has the capacity to provide for the children’s needs on a day to day basis, and that each has the capacity to meet the children’s intellectual needs.
It was the mother’s case that at the present time she could meet the children’s needs better than the father because if they lived with her she would be home every night and the children could stay in their home every night whereas if the children live with the father and the father continues in his employment as a train driver, the children will have to spend some nights with their paternal grandparents.
The paternal grandparents provide perfectly adequate care for the children and the children have a close relationship with them.
Dr Jacobsen conceded however that all other things being equal it would be preferable for the children to be cared for by one of their parents rather than by a grandparent.
The father raised a concern about the mother’s capacity to meet the children’s emotional needs. He said that the mother was not a person who overtly demonstrated affection, whereas he and his family were warm and demonstrative with their affections.
I am not convinced on the state of the evidence that I can make findings that the children living with the father is to be preferred because he is more warm and open in demonstrating affection.
For other reasons however I have reservations about the mother’s current capacity to provide for the children’s emotional needs.
The mother did not demonstrate an ability to put the children’s needs ahead of her own when she moved suddenly from [N] in March 2009, not even affording the girls an opportunity to first say goodbye to their classmates.
Dr Jacobsen was critical of the mother for unilaterally relocating the children and said as follows:
“…..Ms Diggs said that if she could do it again, she would behave similarly. Even with the benefit of hindsight, Ms Diggs is unable to consider an alternate way of dealing with the situation in which she found her vis-à-vis Mr Diggs. Ms Diggs’ actions and her apparent lack of insight suggests that she placed her own needs for comfort ahead of the children’s need to maintain a relationship with their father. Her actions and lack of insight bode poorly in terms of the recommendations the writer must make about with whom the children should live.”[13]
[13] Family Report paragraph 68
The mother’s unilateral relocation was not the only occasion on which the mother placed her needs ahead of the children’s. The mother was asked during cross-examination about an occasion when she travelled to [N] one weekend with the intention (the father and children believed) of spending time with the children there. The mother did not remain in [N] that weekend however but took the children back to [M] for the weekend, causing [Y] to miss an Eisteddfod performance, which upset [Y].
When asked during cross-examination whether she could have left at least [Y] in [N] that weekend so that she could attend the Eisteddfod the mother replied “I didn’t give [Y] the option that weekend (to stay in [N]) because I was missing her terribly and needed to see her.”
These examples of the mother being unable to put the children’s needs ahead of her own heighten my concern that the mother, given the strength of her anger and bitterness about the father’s conduct during the marriage and her conviction that she is the wronged party in the marriage, may be unable to restrain herself from “enlightening” the children about what she considers to be the cause of the marriage breakdown, even though the result may simply be distress and confusion for the children..
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks is relevant.
[X] and [Y] are girls. The mother was concerned that the father’s behaviour in using massage services (on the father’s evidence) or the services of prostitutes (on the mother’s case) suggested that he had a poor attitude to women and that he was therefore not the best person to be primarily parenting two young girls.
There was simply no evidence in the case on which I could draw that conclusion. There was no evidence that the father had ever treated his daughters inappropriately or favoured his son over his daughters. I do not accept the mother’s views that the father engaged during the marriage in concerning behaviour such as possessing or viewing pornography, or that he has displayed a poor attitude to women in a general sense.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
The mother was highly critical of the father for making a unilateral decision that [Z] attend school this year, when the mother and father had agreed prior to separation that [Z] would not commence school until 2010.
The mother talked of it as enrolling [Z] in school, but what occurred was that after the children returned to the father in April 2009 he experienced difficulties paying child care fees, and he trialled [Z] at school. The school formed the view after two weeks that [Z] was not ready to start school part way through the year. He was not enrolled and ceased to attend school.
The father should have consulted the mother before commencing [Z] at school and in failing to consult with the mother he showed a poor attitude to the duties and responsibilities of parenthood.
The mother in her turn failed to consult the father in March 2009 before unilaterally relocating the children to [M]. She admitted that she knew the father was likely to oppose the move and she made the move suddenly and did not give the children any opportunity to say goodbye to their friends.
In unilaterally relocating the children the mother showed a poor attitude to the duties and responsibilities of parenthood.
I must consider any family violence involving the children or a member of the children’s family.
There were no allegations of behaviour coming within the definition of family violence save for the allegations by the mother about the father assaulting [X] and slapping the children. I am not satisfied on the balance of probabilities that any such events occurred.
There has never been a family violence order between the parents or any other relevant persons.
I must consider 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 children.
An order that the children live with the father is the order least likely to lead to the institution of further proceeding. I am satisfied that the father will promote the children’s relationship with the mother and comply with court orders concerning the mother spending time with the children.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act 1975, I am required to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or another child who at the time was a member of parent’s family, or family violence.
There are no grounds to believe that either parent has engaged in family violence or in abuse of the children.
The parents agreed that there should be an order for equal shared parental responsibility. It is an entirely appropriate order for these children and I will make that order.
Conclusion
It is not possible for me to make an order that the children spend equal time with each of their parents, or substantial and significant care with each of their parents, because of the distance the parents live apart.
Although each party hinted that they might move if the case went against them, I cannot predict where they might move to or whether it would bring them into sufficient proximity to enable them to either equally share the care of the children or to each spend substantial and significant time with the children.
It was the mother’s case that if a choice had to be made then the children should live primarily with her. The mother stressed that prior to April 2009 she had always been the children’s primary caregiver. She emphasised that she was better placed at present than the father to care for the children at night, and submitted that children were adaptable and that [X], [Y] and [Z] would adapt to a move to [M].
Although the mother did not directly come out and say so, the flavour of her case was that the father’s behaviour disentitled him to a right to take on the role of primary carer of the children. She also expressed concern about whether he ought to be the primary carer of two daughters, given his conduct.
I accept that prior to separation the mother was more involved in the homemaker and parenting role than the father, but I also accept that the father was a hands on father who was closely involved in the upbringing of his children. I accept that the mother can care for the children every night at the moment whereas the father cannot on occasions because of his employment. However the children and the father sleep at the paternal grandparents’ home when this is required, and the children have a close and long standing relationship with their paternal grandparents.
I accept that children are adaptable and that it is not essential for their well being that they remain in the one location throughout their childhood, and I accept that children often settle happily enough where a parent settles. Learning to adapt to changed circumstances can be of benefit to children.
However[X], [Y] and [Z] would face many changes if they went to live with their mother, and not just a change of location. They would have to adapt to living in a blended family with a step-father and step-sister they do not know well. They would have to adapt to a separation from their father, in circumstances where the mother has a poor view of him and may at best fail to promote their relationship with him and at worst undermine the relationship by making comments about the father’s behaviour which would either confuse and upset the children or potentially turn them against their father.
The father has capably parented the children since April 2009 and is promoting their relationship with their mother. He is making appropriate arrangements for the children to be cared for at night when he is working, in the home of his parents. The children are not expressing any strong wish to change their current circumstances, indeed they seem content with their current circumstances. There must be considerable uncertainty about how each child would react to a change which saw them living in a new extended family.
There was no evidence that the father had a poor attitude to women, or to his daughters, and I accept his evidence that he ceased the conduct about which complaint has been made in 2007.
The mother clearly perceives herself to be a victim of the father’s misconduct during the marriage and as I observed to Counsel during submissions it must seem a cruel twist of fate to her that she now faces the possibility of losing her role as primary carer of the children. However in my view the best interests of the children at the present time would be met by an order that they continue to live with their father in [N].
Crafting suitable spend time with orders presents a challenge, given the competing demands of ensuring that the children are able to spend sufficient time with their mother and ensuring that the children are not subjected to frequent tiring travel.
Dr Jacobsen proposed that if the mother continued to live in [L], which is between 300 and 400 kilometres from [N], the children should spend time with the mother every third weekend and miss a day of school to make it a long weekend. I am not convinced that missing a days school on a regular basis is desirable for the older children. The father suggested that if the mother remained at this distance the time be every fourth weekend rather than every third weekend but this is really a long time between visits, especially for [Z] who is only 5.
I intend to order that the time occur every third weekend if the mother lives more that 200 kilometres away from the father but with no provision for the children to miss a day of school. I intend to adopt Dr Jacobsen’s proposal that in this event the children spend the whole rather than half of the holidays at the end of Term 1 and 3 with the mother.
If the mother moves closer more frequent time would be appropriate. The father’s proposal of different orders to deal with the circumstance of the mother moving closer to [N] is an appropriate one and I will make orders accordingly.
Because of the order for equal shared parental responsibility, the father will not be able to move from [N] to a place which is further away from the mother and which makes it significantly more difficult for the mother to spend time with the children unless he first consults with the mother. If however the mother moves to a place which is further away from [N] than her present location the parties may need to re-negotiate the arrangements for the children to spend time with the mother.
Dr Jacobsen recommended that the parents attend a parenting after separation course and I intend to order that they do so.
For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 16 December 2009
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