DONALD & DONALD
[2012] FMCAfam 876
•30 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONALD & DONALD | [2012] FMCAfam 876 |
| FAMILY LAW – Final arrangements for children aged 16, 13 & 12 – oldest child lives with father – two younger children live with mother – planned relocation of mother to Tasmania from rural South Australia to undertake course of study – mother wishes to take younger children with her – relocation opposed by father – parties have been separated for many years – poor relationship between parties – presumption of equal shared parental responsibility – insight into the responsibilities of parenthood – views of children – meaningful level of relationship – arrangements for children to spend time with father and older sibling prior to, during and after proposed relocation – best interests. |
| Family Law Act 1975, ss.4; 60B; 60CC; 61DA; 65DAA; 65DAC; 65DAE |
| B v B [2006] FamCA 1207 MRR v GR [2010] HCA4 C & S [1998] FamCA 66 AMS v AIF; AIF v AMS (1999) FLC 92-852 Goode & Goode (2006) FLC 92-286 Taylor & Barker [2007] FamCA 1246 Fragomeli & Fragomeli (1993) FLC 92-393 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 D and S V (2003) FLC 93-137 Godfrey v Saunders (2007) 208 FLR 287 M & S (2007) FLC 93-313 Morgan & Miles [2007] FamCA 1230 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MS DONALD |
| Respondent: | MR DONALD |
| File Number: | ADC 1456 of 2011 |
| Judgment of: | Brown FM |
| Hearing dates: | 12 & 13 July 2012 |
| Date of Last Submission: | 13 July 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 30 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Ms Cocks |
| Solicitors for the Respondent: | Mason Westover Homburg |
ORDERS
All previous orders in respect of the child [X] born [in] 1996 are discharged.
The two younger children of the marriage [Y] born [in] 1999 and [Z] born [in] 2000 (hereinafter referred to as “the children”) live with the mother and she have sole parental responsibility for them.
The mother be permitted to live with the children in [P] in the state of Tasmania during 2013 from 20 December 2012 until 20 December 2013.
The children spend time with their father as follows:
(a)During school terms, commencing with the fourth term of 2012, whilst the children are living in South Australia, on four weekends each term between 10.00 am Saturday until 4.00 pm the following Sunday, the weekends to be agreed between the parties but failing agreement to be the second, fourth, sixth and eighth weekend of each term to be calculated by reference to the fact that the first weekend falling after school resumes each term is to be regarded as the first weekend of that term;
(b)During each short school holiday for a period of seven consecutive days, the days to be agreed between the parties but failing agreement to be from 9.00 am Saturday until 9.00 am the following Saturday in the first week of each such school holiday;
(c)During the end of year school holiday for two periods of seven consecutive days, the days to be agreed between the parties but failing agreement to be 9.00 am on Saturday until 9.00 am the following Saturday in the second and fifth week of the 2012/2013 holiday period and each alternate year thereafter and from 9.00 am Saturday until 9.00 am on the following Saturday in the first and fourth week of the 2013/2014 holiday period and each alternate year thereafter.
The intention of order 4(c) hereof is that the children will spend alternate periods of Christmas with each parent (unless the parties agree otherwise) with the children spending the period of Christmas 2012 with the father and the period of Christmas 2013 with the mother. However this provision and the provisions contained in order 4(a) will be suspended during the period the mother and the children are residing outside of South Australia pursuant to order (3) hereof.
Whilst the children are residing outside of South Australia, in order to give effect to order 4(b) hereof the mother is to book and pay for the children’s necessary air travel between Launceston Adelaide and return for the school holiday period at the end of the first and third term of 2013 and advise the father in writing of these arrangements at least twenty eight days prior to the date of the children’s departure.
Whilst the children are residing outside of South Australia, in order to give effect to order 4(b) hereof the father is to book and pay for the children’s necessary air travel between Launceston Adelaide and return for the school holiday period at the end of the second term of 2013 and advise the mother in writing of these arrangements at least twenty eight days prior to the date of the children’s departure.
The father have telephone communication with the children at times to be agreed between the parties and failing agreement to be once per week at 7.00 pm each Wednesday with the time to be calculated by reference to the time zone the children are in at the relevant time and with the father to make the call to the mother’s telephone number.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The mother authorise each the school attended by the children from time to time to give the father all necessary information concerning the children’s educational progress and other related activities and supply him with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the father).
The father be restrained and an injunction issue restraining his from consuming marijuana or consuming alcohol to excess during any period the children are in his care or twenty four hours beforehand.
The parties each attend a Kids R First parenting course at their own respective expense, but not at the same time, with each to complete the course by the end of 2013.
In order to give effect to these orders the children be exchanged between the parties at a location to be agreed be the parties and failing agreement to be at the [G] Police Station.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Donald & Donald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1456 of 2011
| MS DONALD |
Applicant
And
| MR DONALD |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Donald “the mother” and Mr Donald “the father” are the parents of [X] born [in] 1996; [Y] born [in] 1999; and [Z] born [in] 2000.
The parties began to live together in 1995 and married [in] 2000. They agree that they finally separated in January of 2001. They are now divorced and orders have been made in respect of the division of their marital property, the main aspect of which was that the wife retained the parties’ former family home at [S].
Until comparatively recently, no formal orders have been made in respect of parenting arrangements for [X], [Y] and [Z]. It is common ground that the children have lived predominantly with their mother since separation.
The evidence is more controversial regarding arrangements for the children to spend time with their father. The mother’s position is that Mr Donald is an unreliable parent, who has spent time with the children irregularly, as it has suited him.
On the other hand, the father asserts that Ms Donald has actively sought to exclude him from the children’s lives and has refused his reasonable requests to spend time with the children.
Against this background, it is hardly surprising that the parties agree that their relationship, as parents, is a poor and mistrustful one, marked by an inability to communicate effectively. In short, both Mr Donald and Ms Donald see themselves as the victim of the other’s poor and manipulative conduct.
The mother is involved with a non-denominational Christian group known as [F] SA, which is based in [omitted]. [F] describes itself as a youth and community organisation, which provides support to socially-at-risk young people, not only in South Australia but internationally. Its parent group is [F] International.
Ms Donald has been a volunteer at [F] for the past five years. She has worked in a [omitted] role, at [F]’s office in [omitted] but now wishes to undertake a certificate in [omitted].
This course is offered by [F] International at [P] Village, near Launceston, Tasmania. [P] Village used to be owned by [omitted]. [F] acquired the Village as a base for its activities, which include offering training courses to persons associated with it. There is a school at [P] Village for the children of persons involved with [F].
The course Ms Donald wishes to undertake at [F]’s [P] Village will take her around twelve months to complete, if undertaken on a part-time basis. Ms Donald wishes to take [Y] and [Z] to [P] for the whole of the 2013 school year. If the children come with her, because of her parental responsibilities for them, she will only be able to do the certificate course on a part-time basis.
Initially, Ms Donald wished to undertake the course during 2012 and wanted [X] to accompany her and the children to Tasmania. However, at the beginning of November 2011, there was a crisis in the family involving [X].
Ms Donald describes [X] as a child with significant special needs, who has been diagnosed with Asperger’s syndrome. On the other hand,
Mr Donald describes [X] as being “like any other boisterous teenager”.
At any event, there was a physical altercation between [X] and the mother, at her home, on 31 October 2011. Ms Donald asserts that [X] punched her, whilst she was attempting to discipline him for an infraction of her household’s rules.
Following this incident, [X] left his mother’s household and has been living with his father ever since. This crisis has intensified the poor relations between the parties and has complicated what was an already complicated family dynamic.
At this stage, Mr Donald is not agreeable to [Y] and [Z] spending 2013 at [P]. It is his position that this outcome will not be in the best interests of the children, because it will truncate their relationship with both him and [X]. He also doubts the mother’s capacity to support his relationship with the children.
Ms Donald asserts that, in the event [Y] and [Z] are able to go to [P] in 2013, she will ensure that they return to Adelaide during each school holiday period, providing Mr Donald makes some contribution towards the costs of the travel involved. She continues to hold significant concerns about the level of Mr Donald’s insight into being a parent and believes that he is opposing her plans to go to [P] out of spite for her.
It is her position that she has discharged her parental responsibilities for [Y] and [Z] (and indeed [X], when he was in her household) competently and caringly with minimal assistance from Mr Donald. In those circumstances, she asserts that it is fundamentally unfair to her that Mr Donald should be able to frustrate her legitimate and reasonable expectations in this way.
Against this background, it is hardly surprising that other controversies have arisen between the parties. These controversies centre upon the appropriate arrangements for the father to spend time with [Y] and [Z] and for the children to spend time with [X], both before and after the proposed period in [P].
Ms Donald originally commenced proceedings, in this court, in April 2011. At that stage, it was her position that she was at the end of her tether, so far as what she asserted was Mr Donald’s unreliable and inconsistent interaction with all three children.
In those circumstances, she sought orders which would establish a fixed regime for the father to spend time with the children and impose conditions on it, namely that Mr Donald be restrained from drinking alcohol and using cannabis and he attend parenting and anger management courses. It addition, she complained that Mr Donald had refused to engage with her in any process of child dispute mediation.
Mr Donald formally responded to this application in July 2011. He too sought orders which would impose a formal regime for the children to spend time with him. However, he sought a more extensive regime than the mother, which consisted of alternate weekend periods, during term time, from 5:30pm on Friday until 6:30pm the following Sunday and for block periods during school holidays.
Ostensibly at least, the parties reached agreement in respect of their competing applications on 28 July 2011. On this occasion, a final order was made that the three children concerned live with the mother. In addition, it was ordered that [Y] and [Z] would spend every fourth Saturday, from 10:00am until 6:00pm with their father, subject to their wishes, whilst [X] would spend from 6:00pm Friday until 2:00pm Sunday on every fourth weekend with his father.
The children were to be exchanged at the [G] Police Station and an injunction was made restraining Mr Donald from consuming alcohol to legal excess or marijuana at least 24 hours prior to and during any time with the children.
Although Mr Donald was represented by his solicitor, when this order was made and appears to have signed the document memorialising it, it is now his position that he did not understand the orders made and did not consent to them.
It is now Mr Donald’s position that these orders, which provide for him to see [Y] and [Z] once per month, during the day on a Saturday, are woefully inadequate to maintain a proper and meaningful level of relationship between him and the children. In particular, Mr Donald owns a holiday shack at [M]. It is his position that the children enjoy visiting the shack but it is impossible for him to take them there in the time currently available to him.
On the other hand, Ms Donald asserts that these orders have worked reasonably well and are appropriate ones in all the circumstances. She continues to have considerable misgivings about Mr Donald’s style of parenting and behaviour during periods the children have been in his care. She also asserts that both [Y] and [Z] have expressed some reticence about spending overnight time with their father, particularly during term time.
It also seems to have been Ms Donald’s rationale for seeking different regimes for [Y] and [Z] on the one hand and [X] on the other that she had some concerns about [X]’s behaviour towards his younger siblings and the capacity of Mr Donald to regulate that behaviour. These concerns seem to have intensified following the family crisis, which resulted in [X] moving to live in his father’s household.
The orders of 28 July 2011 were not revisited in the immediate aftermath of [X]’s change of residence. However, Ms Donald commenced the current round of proceedings on 22 December 2011. At this stage she formally applied to the court for orders permitting her to take [Y] and [Z] to Tasmania. Initially, she had hoped to travel there in 2012 but in the light of Mr Donald’s stringent objections has modified her proposal to 2013.
On 8 March 2012 I varied the order of 28 July 2011, so that [X] was excluded from the order dealing with the children’s residential arrangements. On this occasion, I also ordered that a family report be prepared, primarily in respect of the relocation issues and in anticipation of the matter being determined by the court on 12 and 13 July 2012.
Because the primary emphasis in children’s cases, is the best interests of the children concerned [s.60CC], it is usual for an independent expert to be commissioned to provide evidence to the court about the needs of any children involved, and where appropriate, what are the views of those children.
The report in this case was prepared by an experienced psychologist, Ms C. Ms C was in favour of [Y] and [Z] being able to live with their mother, in Tasmania, during 2013. In these circumstances she proposed that Mr Donald have weekly telephone communication with the children, whilst they were in Tasmania, and spend time with their father for half of each school holiday period.
Ms C was not in favour of [Y] and [Z] being quarantined from their older brother, [X]. However, Ms C did recommend that the current term time regime, of the children spending one Saturday per month with their father, should be continued, both before and after the children had spent 2013 in Tasmania.
So far as school holiday time was concerned, Ms C was in favour of the children spending block periods of up to seven days with their father and [X]. In the long Christmas school holiday, Ms C recommended that the children have two such periods, one of which could coincide with the festive days of Christmas, in alternate years.
Ms C was concerned at reports received by her from the children that Mr Donald had spoken inappropriately about Ms Donald. In these circumstances, Ms C recommended that Mr Donald be restrained from denigrating Ms Donald in the children’s presence or hearing. She also recommended that both parties attend a Kids R First parenting program.
The release of Ms C’s report did not assist the parties to reach agreement about ongoing arrangements for the children. Their positions remained polarised. However, against the background of the report, on 4 June 2012, I ordered that the children spend one week of the mid-year school holiday with Mr Donald. Again, the parties have differing views as to how successful this recently concluded holiday has been.
As this brief introduction shows, this is a complex case. The issues which arise in it centre on the mother’s wish to live with [Y] and [Z], in Tasmania, during 2013 and what should be the ongoing arrangements for the children to spend time with both their father and [X] before, during and after this proposed temporary relocation.
There can be no outcome in this case, which will be satisfactory to all the parties involved and to all those who will be affected by the outcome. The various options available to the court, in the outcome of this case, cannot be manipulated like the surface of a Rubik’s Cube, to reach a perfect result.
If I do what Ms Donald wants, Mr Donald will feel hard done by and feel that the court has scant regard for extending and supporting [Y] and [Z]’s relationship with him. He will continue to believe that
Ms Donald can dictate terms to him.
If I do what Mr Donald wants, Ms Donald will perceive that she is unheard and disregarded. She will feel that her plans and aspirations must play “second fiddle” to Mr Donald, whom she regards as selfish and motivated by malice for her.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and, for legitimate reasons, wish to take different directions as to where they will live in future.
On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, regardless of the state of the relationship between the parents concerned.
However, there is no principle of law that requires separated parents to live indefinitely in close proximity to one another. Such a principle would offend our conceptions of personal freedom and be unduly restrictive.
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of that child which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the child concerned.
It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. However, at the same time, the court cannot overlook the legitimate expectations of a parent, as to where he or she wishes to live in future.
The balancing of these considerations has been described by Warnick J as both "a delicate interplay of concepts" as well as "an imbroglio of principles."[1] The level of complexity is intensified by the fact that the Commonwealth parliament has passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006.
[1] See B v B [2006] FamCA 1207 (delivered 15 November 2006) at paragraph 1.
The evidence
The parties themselves and Ms C were the only witnesses who gave oral evidence in this case. Ms Donald filed three other affidavits deposed by her adult sons Mr C and Mr T and from Ms S, who is the team leader of [F] SA Mid-North.
Mr C and Mr T deposed that they each enjoy a good relationship with their mother. Their affidavits were filed to refute the allegation made by Mr Donald that they are estranged from their mother, as a result of Ms Donald’s behaviour towards them. Ms S deposed that Ms Donald has been volunteering for [F] for the past five years.
During this period, Ms Donald has been working in a [omitted] role and as a [omitted] in [F]’s [omitted] course. Ms S described Ms Donald as a “valuable member of the [F] SA Mid-North Team” who would be welcomed back once she had completed her certificate in [omitted].
Mr Donald elected not to cross examine Mr C, Mr T and Ms S. Accordingly, I accept the evidence of each of these witnesses. In particular, I accept Ms S’ evidence regarding Ms Donald’s volunteer work at [F] and the utility of her completing her course at [P].
Although Ms Donald is not in a financially secure position, she was not granted legal aid for these proceedings. Accordingly, she appeared on her own behalf in them and prepared her own affidavit material. She was extensively cross-examined by Ms Cocks, counsel for Mr Donald, who was legally aided.
Ms Donald presented as an honest and decent witness. However, she made no bones of the fact that she does not currently have a great deal of time for Mr Donald, whom she believes is opposing her relocation of [Y] and [Z] because he is able to do so.
Ms Donald concedes that Mr Donald loves the children but her evidence in regards to his relationship with them can be summarised from the following statements taken from his evidence:
·“He has not had a strong relationship with them over the last ten years.”
·“He has not been financially responsible for them.”
·“He has not been bothered with them when he has had better things to do.”
·“He took off [in 2004] and had no contact with them.”
·“He talks about his ‘rights’ being taken from him.”
·“[Y] and [Z] enjoyed some of the time they spent with their father in the recent July school holiday but [Y] in particular complained about being bullied by [X].”
Although I found Ms Donald to be an honest witness and accept the bulk of her testimony, her antipathy for Mr Donald has consequences for her objectivity in respect of the nature of the children’s relationship with their father. Currently, Ms Donald views Mr Donald through a prism of hostility. In these circumstances, Ms Donald is likely to be deeply suspicious of Mr Donald and highly protective of the children concerned.
At the present time, Ms Donald communicates, if at all, with
Mr Donald by text message. As such, she is reliant on [Y] and [Z] for information about what goes on in Mr Donald’s household. I am concerned that the children are not necessarily the most reliable conduits of information.
Mr Donald sees Ms Donald as pernickety and inflexible, particularly on her insistence that all handovers take place at the [G] Police Station and the court orders in place are strictly complied with. In the past, he has wanted to modify the orders so that, by way of example, if the parties meet on the road on the way to the police station, handover takes place there.
On another occasion, he proposed handover take place at Ms Donald’s brother’s house because he was short on fuel at the time and knew
Ms Donald would be visiting her brother, whose home is closer to where he lives. Ms Donald declined the request.
Ms Donald’s position is that she is unwilling to make any concessions to Mr Donald, even apparently trivial ones, because in the past it has been her experience that Mr Donald has abused her generosity. In my view, this issue, to some extent, encapsulates the personality differences between the parties.
Mr Donald sees himself as laid back and something of a maverick. On the other hand he would see Ms Donald as being up tight and controlling. Needless to say Ms Donald sees Mr Donald as irresponsible and unreliable.
In my assessment, the parties are quite different in personality and temperament. They are however united by their shared love for [X], [Y] and [Z]. They are however likely to display their love for the children in different ways.
Ms Donald places greater store on discipline and routine for the children. In this regard, it is she who has attended to the educational needs of the children concerned and particularly, so far as [X], and [Z] are concerned, has attended to the professional investigation of their respective psychological needs – in [X]’s case his Asperger’s Syndrome and in [Z]’s case, his hyperactivity disorder (ADHD). I also accept that Ms Donald has paid for the children’s orthodontic expenses, at some considerable personal expense to herself.
Mr Donald places less emphasis on such matters. As previously indicated, he regards [X] as being a boisterous teenager rather than a child with special needs. From Mr Donald’s perspective, it is more important for the children to be able to hang out with him than to pursue academic interests.
Again, two incidents serve to demonstrate the gulf between the parties. In December 2010, [Y] was hospitalised for four days. She took her computer with her. To his credit, Mr Donald visited her each day.
Ms Donald complains that Mr Donald upset [Y] by referring to her as a computer nerd, whilst Mr Donald categorises his comments as being humorous in nature and not intended to cause offense to the child.
Mr Donald apparently frequents the municipal tip near his home, in part as a source of useful but discarded items. He visits the tip when it is closed and accordingly is a trespasser. [X] has accompanied him on at least one of these trips. During this visit, [X] was throwing rocks at discarded television sets. This caused the screen of one of the televisions to shatter and [X] to sustain a reasonably significant injury to his hand, which required stitching at hospital.
From Mr Donald’s point of view, the incident is an example of boyish high spirits, which occurred whilst he was distracted from [X]. From Ms Donald’s point of view, it is a further example of Mr Donald’s irresponsibility and of an inappropriate relationship between
Mr Donald and [X], with the former treating the latter as a companion rather than a child.
I can understand why Ms Donald would be dismayed by this incident. I can also understand why both Mr Donald and [X] would enjoy exploring the tip together, although for obvious reasons, it would be preferable and safer, if this did not involve an unlawful entry.
To her credit, Ms Donald concedes that she has to “let go a little” so far as the children spending time with their father is concerned. Her major concerns focus on safety issues. In this regard, she believes it would be useful for Mr Donald to attend a parenting course, but she doubts he would be willing to attend such a course. She herself is open to attending at such a parenting course.
Mr Donald did not present well in the witness box. He appeared to be a man with a chip on his shoulder. To Ms C, he said of himself “I am just a male in society and I have no legs to stand on.”[2] He was evasive and negative about everything to do with Ms Donald. Although he must concede that it is she who has done the lion’s share of the parenting of [X], [Y] and [Z], he is incapable of providing her with any credit in this regard.
[2] See Family Report dated 17 May 2012 at page 7
By way of example, Mr Donald deposed that he did not believe
Ms Donald was a committed Christian, as she had not been religious during the parties' marriage. To Ms C, he was dismissive about
Ms Donald’s study aspirations asserting his view that Ms Donald would “spend the rest of her life studying so that she doesn’t have to get a job”.[3] Mr Donald was also dismissive of Ms Donald’s housekeeping abilities describing her home to Ms C as a “dump”.
[3] See Family Report dated 17 May 2012 at page 8
For my part, I unequivocally accept the bona fides of Ms Donald’s wish to go to [P] to undertake the certificate course in [omitted]. In particular, I accept the following aspect of her evidence:
“My going to [P] to do the [omitted] certificate will give me more skills to work [omitted], as well as help my own personal development. I also volunteer at [Z]’s school one day a week. I choose to volunteer over paid work as it gives me the flexibility to be available to my children.”[4]
[4] See mother’s affidavit filed 8 June 2011 at paragraph 30
One particular bone of contention between the parties concerns the provision of financial support for the children by Mr Donald. It is the mother’s position that Mr Donald has done whatever is open to him to avoid paying child support or otherwise providing financial support for them, particularly in regards to assisting with the payment of school fees or orthodontic expenses. I found Mr Donald’s evidence in denial of these allegations singularly unconvincing.
Initially, Mr Donald asserted that he had not put in a tax return for “a couple of years”. When pushed, it became apparent that he had not put in a tax return since 2003. At the time of his last return, he had been in well paid employment in the [omitted] industry in the north of the State.
In this context, Mr Donald expressed considerable umbrage that he had been assessed to pay child support at a rate of thirty-five percent of his income and his tax refund at the time had been diverted to Ms Donald. Thereafter, he had ceased his employment and elected to travel around Australia for much of 2004. Something Mr Donald asserted that he “needed to do”. During this period he had not spent time with the children and certainly not provided any financial support for them.
How Mr Donald has derived his income from 2005 onwards is a matter shrouded in uncertainty, which Mr Donald has done little to dispel. He acknowledges some paid employment and also that he was in receipt of Workcover payments for a period, as a result of sustaining an injury at work.
At present, it is Mr Donald’s evidence that he is in receipt of social security payments and lives very frugally. His major recurrent expense is the modest mortgage payment on his shack at [M], which is $170.00 per week.
Mr Donald acknowledges doing work for a [occupation omitted] for which he sometimes receives cash. In my view, the evidence indicates that Mr Donald will do whatever he can to avoid paying child support, which he regards as an unwarranted and unfair imposition upon him, in all the circumstances of his case.
Ms Donald is critical of Mr Donald’s drinking habits and his proclivity to smoke marijuana. Mr Donald has not specifically responded to this application, rather choosing to assert that Ms Donald herself smoked marijuana during the parties’ relationship.
In addition, Mr Donald conceded, that on a prior occasion, when the children had been holidaying with him in [omitted], he had contacted the mother by telephone to advise her that he would be late in returning the children because he was too drunk and hung over to attend at the appointed time. Rather unconvincingly, Mr Donald said that this statement was untrue but had been made in order to justify him spending more time with the children.
I found this explanation somewhat perplexing. Whatever is the truth of Mr Donald’s reason for returning the children late, I remain concerned at his behaviour. However, it seems to me to be more likely than not that Mr Donald has a propensity to abuse alcohol and cannabis from time to time. Certainly he is not a tee-totaller in regards to either substance.
Notwithstanding the concerns I have about some aspects of
Mr Donald’s parenting, I accept that he has much to offer the children. So indeed does Ms Donald. As they are different people, with different temperaments, they offer different things to the children.
From Mr Donald’s perspective, he enjoys playing and interacting with the children. He fixes their bicycles and toys and has introduced them to motorcycle riding. In this context, it is important to Mr Donald that he has an opportunity to engage with the children, at his shack at [M].
Up to this stage, I am satisfied that Ms Donald has provided more of the “nuts and bolts” parenting of all three children, including [X]. It is she who has had to deal with [X]’s transgressions at school, which have led to his exclusion from school. It is she who has provided more structure and discipline in the children’s lives.
It is my view that, to a very large extent, the parties approach the role of parenting the children concerned in totally different ways. Regrettably, they have little facility to resolve their differences in opinion or to empathise with the parenting aspirations of the other.
a) Other background facts
The mother was born [in] 1965. The father was born [in] 1969.
Mr Donald left school after Year 9. He has worked as [occupations omitted]; as well as having had a number of other labouring positions.
The mother is not currently in the paid workforce but regularly volunteers at [F]. She apparently has a number of tertiary qualifications, most recently a diploma in [omitted] obtained from TAFE.
Ms Donald has two adult children from a previous relationship. Her son Mr T lives at [P] currently, where he is completing a diploma in [omitted]. He completed Year 12, at [P], under the care of [F]. He is a [occupation omitted].
The children have each attended a number of schools. [X] is currently at [B] School, which he has attended since coming to live with his father. He was expelled from his previous school.
[Y] is currently attending [R] School after previously attending the [V] School. [Z] also previously attended this school but currently attends [S] School where he is in grade 7.
It is a major concern to Mr Donald that, if [Z] goes to [P] in 2013, he will not transition to High School with his educational and chronological cohort. Ms Donald’s evidence is that [Z] has struggled at school, which she relates to his diagnosis of ADHD.
Ms Donald has arranged for [Z] to have counselling support from CAMHS (the Child & Adolescent Mental Health Service). In the past she has also obtained CAMHS counselling for [X] and sought assistance in dealing with his behaviour from Autism SA. I accept Ms Donald’s evidence that in the past [X] has refused to spend time with his father and his ([X]’s) behaviour has frequently been extremely challenging.
Ms Donald complains that, in Christmas of 2009, Mr Donald shouted at [X] and punched the wall near his head, which happened in the proximity of [Y] and [Z]. Mr Donald acknowledges that the incident occurred but not because he lost his temper with [X] but rather because [X] was misbehaving. Mr Donald denies that he would ever strike any of the children.
b) The circumstances of [X]’s departure from the mother’s home
It is Ms Donald’s view that Mr Donald is an inappropriate role model for [X], who is a vulnerable child at present. She is concerned that Mr Donald is something of a misogynist and does not shield [X] from his negative views about her. Given the circumstances of [X]’s departure from Ms Donald’s home, I share those concerns.
On 31 October 2011, there was a physical altercation between [X] and Ms Donald. The genesis of this altercation was that [X] had complained about his mother’s choice of radio channel, whilst travelling back in her car from a visit to his father. [X] changed the channel unilaterally, indicating he would not listen to his mother’s “shit channel”.
Ms Donald, rightfully in my view, challenged [X]’s behaviour as disrespectful and indicated that if they could not agree on a radio station they would have silence in the car. The altercation continued at home, when [X] was challenged about his mobile phone use and later threw his tea across the backyard. The dispute, which began as example of youthful petulance, regrettably culminated in [X] punching his mother and withdrawing from her household.
When police found [X] wandering the streets later, at his suggestion, the police took [X] to his father’s household, where he has remained ever since. Ms Donald has made a complaint of assault against [X] but as yet the police have not finished their investigations into it and it seems unlikely that it will proceed further.
Ms Donald’s rationale for proceeding with the charge is that it is important for [X] to understand that such disruptive behaviour will have consequences for him. From Mr Donald’s perspective such police intervention may scar [X] and blight his future.
From my perspective, both parties’ positions have merit. However, in the context of these proceedings, what concerns me is the inability of the parties to have a common approach to what was indubitably unacceptable behaviour on [X]’s part.
Mr Donald deposed that it is not acceptable for a youth, such as [X], to assault his mother. However, it seems to me that he has done little if anything to bring this home to [X]. Rather, he has seized on the incident as a means of getting the upper hand over Ms Donald.
[X] was unwilling to see his mother for some time. Ms Donald, in my view to her credit, did not attempt to force the issue. Rather, she texted [X] regularly to tell him that she still loved him. In addition, she made appropriate arrangements for [X]’s possessions to be delivered to him.
Although with the benefit of hindsight it is easy to be critical of Ms Donald for insisting on separate arrangements for [X] on the one hand and [Y] and [Z] on the other, I can understand why she would want to have kept the children separate from one another, given the emotional moment of what happened on 31 October 2011.
More recently, [X] has spent two days with his mother whilst [Y] and [Z] have been visiting their father. From Ms Donald’s perspective, these visits went well and she and [X] have mended the rift between them.
As previously indicated, the parties have differing views as to how successful was the recent mid-year school holiday, when all three children spent time together. I suspect that [X]’s behaviour is not always smooth towards his younger sister and brother but, in the light of Ms C’s report, I accept that the three siblings have a close bond with one another, which needs to be supported.
However, in the medium to longer term, it seems likely that [X] will remain living with his father, whilst [Y] and [Z] will remain living with their mother. In particular, [X] has made it clear that he does not wish to live in [P] in 2013.
c) [P]
[P] is a former [omitted] village, approximately 60 kilometres south of Launceston. It has a private school, [omitted] College, which provides education up to Year 12 for children living in the village. From Ms Donald’s perspective, the school offers an appropriate standard of education for [Y] and [Z]. She is enthusiastic about the school because of its positive influence on her son Mr T.
[X], [Y] and [Z] have previously visited [P] on more than one occasion. Accordingly, both [Y] and [Z] are familiar with [P] and have made some connections with children who live there.
Because of her parenting responsibilities, the authorities at [F] have indicated that Ms Donald will not be allowed to undertake her studies on a fulltime basis. Accordingly, I accept that Ms Donald will remain available to parent [Y] and [Z], notwithstanding her study commitments.
I also accept Ms Donald’s evidence that she is not prepared to go to [P] without [Y] and [Z]. In Ms Donald’s words, “[Y] and [Z] come first”. The necessary implication of this comment being that Ms Donald considers that it would be detrimental to [Y] and [Z] if they came into the fulltime care of their father.
If she is able to take the children to [P] in 2013, Ms Donald anticipates she will leave Adelaide around 14 January 2013 and will travel to Melbourne by car, placing it on the Trans-Tasman ferry. She anticipates that she will return to [S], after completing her course, prior to Christmas time in 2013.
Ms Donald proposes that [Y] and [Z] should spend one week of each of 2013 school holidays in Adelaide with their father and [X]. The children would have to travel by air to achieve this outcome. It is Ms Donald’s position that it is only fair that Mr Donald pay one half of the children’s airfares.
On her last trip to [P], Ms Donald paid $130 each way for her and the children’s travel between Adelaide and Launceston. This seems to have been a particularly cheap fare. Ms Donald acknowledges that in future the fare is likely to be between $160.00 and $200.00, each way, depending on how far in advance it is booked.
Given his financial circumstances, Mr Donald asserts that he is incapable of contributing any of the travel costs. As previously indicated, it is my view that Mr Donald has not been completely candid about his employment situation. However, in my assessment, he is unlikely to contribute any monies towards the children’s necessary travelling expenses, notwithstanding that his lack of contribution may mean that he does not see the children for a period approaching 12 months.
In my estimation, Ms Donald is likely to be a better financial manager than Mr Donald. In addition, in my estimation, Mr Donald is a person who is capable of considerable stubbornness. As such, if he feels hard done by as a result of the court’s decision to authorise the children’s temporary relocation to [P], he is unlikely to accept this decision either gracefully or constructively.
Ms Donald proposes that, in the event that she and the children move to [P], Mr Donald communicate with the children regularly by telephone and computer. In respect of the telephone, she proposes once per week on Wednesday evening at the fixed time of 7:00pm. Mr Donald agrees with this proposal.
Mr Donald is opposed to any orders being made for the children to communicate with him by other electronic means, such as email or Skype, because he does not own a computer and does not intend to obtain one.
In these circumstances, given the poor relationship between the parties, it appears that telephone communication, at a fixed time, represents the best means for the children to keep in touch with their father in the event of a relocation to Tasmania, certainly between school holidays.
d) The Family Report and the evidence of Ms C
Ms C interviewed each of the parties and the children concerned, in her professional rooms, on 4 May 2012. She did not form a favourable impression of Mr Donald, whom she considered presented himself “as a victim of the Family Court situation”. She also reported some friction between herself and Mr Donald, which arose after she asked Mr Donald to leave her waiting room, whilst she conferred with the mother.
I accept that it is possible that there was some level of misunderstanding between Ms C and Mr Donald, which caused the two to get off on the wrong foot together. I also accept that it was inappropriate for Mr Donald to have muttered under his breath, when he was asked to leave, as he perceived unfairly. However, I do not consider that this incident affects the overall objectivity and validity of Ms C’s report.
There is a level of artificiality about all family reports which must be regarded as an isolated snapshot of the children concerned and the relationship they have with those who are significant to them, which is frozen in time. Necessarily, the time available to Ms C to undertake a report was limited and she was only able to observe and speak with [X], [Y] and [Z] on one occasion.
Notwithstanding these limitations, I found Ms C’s report to be a well considered one. As such, in general terms, I accept the import of her recommendations and her overall assessment of the children concerned.
Each party clearly stated to Ms C what their respective position in the matter were. In particular Ms Donald stated her opposition to overnight term time because Mr Donald did not follow court orders.
She also reiterated her safety concerns for the children and her fears that Mr Donald was an inappropriate behavioural model for them and would attempt to influence [Z] against her, as he had done with [X]. She complained about Mr Donald’s financial neglect of the children.
Mr Donald told Ms C that he did not want to separate [Y] and [Z] from Ms Donald but merely wanted to see them more often as “once a month for eight hours is not enough time”. In this respect he stated that he had bought his shack at [M] so that the children could spend weekends and school holidays there with him. He had also bought the children motorbikes for this purpose. Both the shack and the motorcycles were pointless under the current arrangements.
Ms C described [X], [Y] and [Z] as “all lovely children”. [Y] was considered highly articulate, whilst [Z] was less mature emotionally than his sister and therefore had a lower degree of insight.
[Y] was reported as being very clear and keen about going to [P]. Her comments to Ms C were recorded as follows:
“When asked about her wishes in respect of relocating to Tasmania for a year, [Y] stated that she is very keen to go to [P] and really wants to do it. She reported that she has been there before and described it as a “really peaceful place” where “people pay attention to you and no-one’s left out”. She already knows “quite a lot of people there”. She told me that Mr Donald has said he doesn’t want her and [Z] to go to [P] but she doesn’t know his reasons for saying this.”[5]
[5] See family report at page 10
[Y] was somewhat critical of her father, particularly that he did not pay attention to her and [Z] during her visits to his home. She also complained that Mr Donald made derogatory comments about her mother. [Y] stated that Mr Donald “only wants her and [Z] to stay with him in order to get back at Ms Donald.”
Significantly, [Y] report missing [X] and thought that [X] in turn missed her and [Z]. In this context, Ms C opined that it was important for both [Y] and [Z]’s emotional wellbeing that their relationship with [X] was re-enforced.
However, [Y] was not in favour of there being any change to the current term time weekend arrangements. In particular, she was not in favour of overnight visits as she felt more comfortable in her own room at night. Interestingly, [Y] felt able to cope with spending a week, with her father, during school holidays.
Ms C sensed that there was some tension between [Z] and [X]. This was because [Z] told her that [X] and he “tended to get annoyed with each other”. He also stated that he had not missed [X], a statement which Ms C took with a pinch of salt given her later observation of a warm sibling relationship between all three children concerned.
Like his older sister, [Z] was not in favour of changing the current term time contact arrangements. Activities in which he engaged at Mr Donald’s home were described as going to the movies, going bowling, or having movies at home.
These were the same activities described by [Y]. It is likely, I think, that these are not the type of activities preferred by Mr Donald. As such, it may be the case that, in his preferred environment – his shack at [M] – he and the children will engage more easily together.
[Z] was initially in favour of the year long relocation to [P] but Ms C sensed some ambivalence in his reaction to the issue. However, he was clear that he did not want to be separated from his mother for a year.
Ms C was of the view that [Y] had clearly thought through the implications of moving to [P], for a year in terms of separation from her friends and father but [Z] may not have done so.
Again, although [Z] did not want to change the term time contact arrangements, he, like [Y] indicated “he could stay with Mr Donald for a week in the school holidays.”
In interview, [X] spoke favourably about his father’s household. He reported being upset because he was not able to see [Y] and [Z] as often as he used to. In this context, he was not in favour of them spending a year in [P] in 2013.
[X] reported that Mr Donald expressed to him his dissatisfaction with the current court ordered arrangements. A major component of his complaints being that he was unable to take the children to his shack.
All three children were observed to have a loving and comfortable relationship with each of their parents. They chatted and played cooperatively with Ms Donald, whilst they were described as relaxed with Mr Donald.
Ms C was critical of both parents for their mutual contribution to their ineffective parenting relationship, which was said to be “characterised by blame, control, retribution, inflexibility, mistrust and using the children as negotiation tools.” It was in this context that Ms C recommended both parents attend a Kids R First post-separation parenting course.
However, she was somewhat doubtful that Mr Donald would attend such a course, describing him as “a law unto himself.” She was particularly critical of Mr Donald for suggesting to her that, if he could not get the time he wanted with the children, he would not spend any time with them at all. She was also highly critical of him for exposing his derogatory view of Ms Donald to the children.
However, like me, Ms C was in no doubt that Mr Donald loves the children very much indeed and they love him, as is apparent from the manner in which they were observed to interact with their father. She was however concerned that Mr Donald interacted with [X] as a peer rather than as his son.
Ms C also had criticisms of Ms Donald. In particular, that she had made rules, which had resulted in [X] being separated from [Y] and [Z]. This view was influenced by Ms C’s observation of the three children together, which she described as a “very nice little session”.
The majority of Ms C’s recommendations were strongly influenced by what [Y] and [Z] told her in interview. In particular, Ms C did not favour changing the current term contact arrangements because neither [Y] nor [Z] favoured such a change
As such, Ms C was not in favour of pushing them, particularly as it was her view that there was some level of friction between the children and their father, particularly in the context of Mr Donald’s derogatory comments about their mother.
It was also because both children were in favour of the relocation, particularly [Y] an articulate and mature child, Ms C recommended that the court authorise the relocation. Interestingly, Ms C did not address any possible implications for Ms Donald’s capacity to parent the children effectively if her aspirations were frustrated in a significant way by Mr Donald. Nor did she comment on possible ramifications of this for the parties’ already disastrous parenting relationship.
Given the importance of the children’s relationship with their father, which was apparent to Ms C from the observed interaction, she recommended that the children spend one week of each short school holiday period with their father, before, during and after the proposed relocation to Tasmania.
Ms C was open to the children spending two separate weeks with their father during the long end of year school holiday. Ms C was of the view that, given [Y] and [Z]’s ages, although a year was a long time, they would not forget their father during this period because of the strength of their relationship with him.
The legal principles applicable
The service of [X], [Y] and [Z]’s best interests is the most important consideration in this case [section 60CA]. This is the paramountcy principle. [X], [Y] and [Z]’s best interests are the paramount or most important consideration in this case.
The provisions, in the Family Law Act 1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act 1975 [section 60B], which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
In their respective applications, neither party has addressed the issue of equal shared parental responsibility. In their respective submissions to the court, both parties assert that their relationship is too compromised and conflicted for them to consensually make decisions about the three children concerned.
An order which provides for equal shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.
This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made when they need to be made without consultation.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[6]
[6] See MRR v GR [2010] HCA4 at paragraphs 13 and 15
Given the structure of Part VII of the Family Law Act 1975, particularly in matters where the presumption of equal shared parental responsibility applies, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
Pursuant to rights read by the High Court into the Australian Constitution, Australian citizens, and those resident in this country, have a right to freedom of movement, both internally within Australia and indeed overseas. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose.
On the other hand, pursuant to the principles contained in the Family Law Act 1975, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. As such, it has been said that relocation cases need careful analysis.[7]
[7] See C & S [1998] FamCA 66
This requirement for careful analysis flows from the fact that a parents’ entitlement to freedom of movement, as a citizen, is frequently difficult to reconcile with the entitlement which children have, pursuant to the Family Law Act 1975, to maintain and develop relationships within their family, particularly with a parent, which are likely to be significant to them, both in the short and long term.
The High Court has considered this dilemma in a number of cases and has determined that although the child’s best interests are the paramount consideration, they are not the sole consideration for the court. A parent’s aspirations as to where and how he or she proposes to live in future is something which the court is required to take into account. However, these expectations must yield to the child’s ultimate best interests.
In AMS v AIF; AIF v AMS[8] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[8] AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangements are in the best interests of the child concerned.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
AMS was determined prior to significant legislative amendments to the Family Law Act bought into effect by the Family Law Amendment (Shared Parental Responsibility) Act. These amendments have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents and have changed the pathway, which the court must follow, in all cases concerning children, particularly those in which the presumption of equal shared parental responsibility has been found to apply. This pathway applies just as much to cases involving relocation, as it does to more conventional parenting cases.
Pursuant to the applicable legislation, when the presumption of equal shared parental responsibility has been found to apply, the court is directed to “to consider” firstly equal time and then secondly “substantial and significant” time between a parent and child. It has been held that this requirement applies just as much in relocation cases as it does in other cases pertaining to children.
The Full Court in Goode & Goode[9] has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
[9] See Goode & Goode (2006) FLC 92-286
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.
In Taylor & Barker[10] the Full Court of the Family Court said as follows:
… [the approach] which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[10] Taylor & Barker [2007] FamCA 1246 at paragraphs 81-83
The Full Court speaks of the risk of the court potentially devaluing the legislative imperative placed upon it to consider actively a child spending equal time or substantial and significant time with both parents, in all cases, including those which contain a relocation proposal.
Whether or not the presumption of equal shared parental responsibility applies in this case, given that Mr Donald does not formally seek orders that [Y] and [Z] live predominantly with him but rather that
Ms Donald be restrained from injunction from removing the children from South Australia and given Ms Donald has indicated that she will not go to Tasmania without the children, there appear to be only two realistic outcomes in this case:
·The relocation to Tasmania is “permitted” and orders are made for Mr Donald to spend time with [Y] and [Z] during school holidays and to communicate with him by telephone;
·The children remain living in [S] with Ms Donald and either the current contact arrangements remain in place or they are recalibrated in some way.
However, as the High Court has pointed out, each such outcome must be examined in the context of what is reasonably practical, given the reality of the situation facing the family concerned, including, I take it, the practical consequences of the relocation either happening or not happening.
Of itself, a parent’s freedom of movement may have implications for the welfare of the child concerned, particularly if that parent has principle responsibility for the care of the child, who is subject to the relocation. For obvious reasons, a parent’s ability to function effectively, as a parent, is likely to be important to the child’s welfare.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[11]
[11] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
As the child’s best interests remain the paramount consideration in the outcome of any relocation proposal and as one of the components of a child’s best interests is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests and so should occur.
The potentially deleteriously consequences, for children, of locating away from one of their parents, compound with the distance involved. The tyranny of distance develops by degree.[12] For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Hobart or Broome to Bairnsdale.
[12] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)].
It is a common occurrence for a parent to move voluntarily away, from the child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. For obvious reasons, one of the frequent consequences of marital breakdown is that parties concerned form new relationships. Accordingly the interests of new partners become involved.
In such circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[13] As Kay J pointed out in Godfrey v Saunders[14] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[13] See D and S V (2003) FLC 93-137 at 78, 280
[14] See Godfrey v Saunders (2007) 208 FLR 287at 298
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible, with both their parents, there thus is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
If such a principle was indiscriminately applied, in children’s cases, it would necessarily result in the negation of a parent’s entitlement to freedom of movement. Parents would never be able to move with their children following relationship breakdown. The court cannot ignore this entitlement. If the legislature intended to curtail this right, it would have specifically done so.
As a result of these considerations, I conclude that the main thrust of the enquiry, in this case, remains what outcome is likely to best serve [Y] and [Z]’s best interests. The recent amending legislation has not specifically prohibited a parent relocating with a child because such a move will have implications for the nature of the child/parent relationship with the other parent concerned nor has it imposed any special onus on the parent wishing to relocate.[15]
[15] see M & S (2007) FLC 93-313 per Dessau, J. at 81,386
The best interests of a child are ascertained by a consideration of the objects and principles contained in section 60B and the various considerations listed in section 60CC(2) and (3). Accordingly, the best interest test remains “integral” to the determination of any parenting issue, including the difficult issue of relocation.[16]
[16] ibid at 81,386
In conclusion, the case requires no ready solution. Every relocation case is different and requires careful analysis. As is apparent from this survey of the law, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”[17], which arise from complex issues.
[17] See AMS v AIF (supra) per Kirby, J. at 86,041
However, the ultimate issue in the case is the best interests of the children concerned. In this regard, the parties’ competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed, against the yard stick provided by section 60CC and the principles which underpin it.
As Boland J put it:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtaining such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”[18]
Determining the children’s best interests – section 60CC
[18] Morgan & Miles [2007] FamCA 1230 at 74
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect any child concerned from harm, as a result of exposure to abuse, neglect and family violence; and the benefits of that child having a meaningful relationship with each of his or her parents.
The mother categorises the father as a person lacking in insight, who has been neglectful of the children in the past and violent in their presence, particularly when the punched the wall near [X]’s head. As such, Ms Donald continues to have concerns that there is a risk of the children coming to harm, if they spend extended periods of time with their father and with [X], who also has behaved violently in the past.
In the context of these proceedings, I must make some assessment of the degree of risk involved and put in place orders which are commensurate with that degree of risk. Although Mr Donald has, in my view, in the past been something of a lackadaisical parent, I do not think that he would willingly expose the children to any significant risk of coming to harm.
The incident involving [X] and the television screens was, in my view, one of carelessness and lack of supervision, rather than neglect. In my assessment, Mr Donald is unlikely to either neglect or abuse the children, when they are in his care.
However, his standard of care and parenting style is likely to be significantly different to Ms Donald’s. She is likely to be more structured and disciplinary in her parenting, whilst Mr Donald is likely to be more hands off and permissive. It is not my function to say which style of parenting is superior, other than to comment that, in my view, both parents have much to offer the children.
In this context, Mr Donald is anxious to spend time with the children at his shack, where they can to some extent run free. At the shack, the children will ride motorcycles. Necessarily these types of activities pose some risk for the children but also are likely to confer benefits on them, particularly in terms of extending and enhancing their relationship with their father.
This is the central aspect of Mr Donald’s case. From his perspective, the current arrangements do not allow him to spend sufficient time with [Y] and [Z] to enable them to have a meaningful level of relationship with him. In particular, he wants to be able to take the children to his shack both on regular alternate weekends and during school holidays.
In addition, it is in my view manageable for the children to engage with their father in each of the short school holiday, whilst they are in Tasmania. As such, although the children will be affected by the move, in my view, they will not be adversely affected to a marked degree.
I am also satisfied that [Y] and [Z] are likely to benefit from the relocation. Ms Donald is likely to be stimulated by the move, as are the children themselves. They are likely to benefit from experiencing a school in a different environment.
e) The practical difficulties and expense of the children spending time and communicating with each of their parents
Whilst the parties are in South Australia, the logistical difficulties arising from the children spending time with their father are relatively easy to surmount. The parties live within an easy drive of one another, mainly along country roads. Both have access to motor vehicles. [G] is the natural half way point.
The major difficulty arising to prevent the children spending time with their father regularly is the parties’ poor and mistrustful relationship, which results in them having difficulties conveying even the simplest piece of information between them without the potential for miscommunication and rancour to arise.
Obviously, these difficulties will be compounded in the event that more complex travel arrangements are required, involving the purchase of interstate airflights, particularly if each party is required to provide a part of the fare arising, as Ms Donald proposes currently.
In the event that [Y] and [Z] spend 2013 in [P], clear lines of demarcation need to be laid down between the parties to allocate responsibility for paying for and arranging any travel for the children to spend time with their father and [X] in South Australia during school holidays.
It is likely to cost somewhere between $640.00 and $800.00, perhaps more because of the involvement of school holiday periods, for [Y] and [Z] to travel between Launceston and Adelaide to spend time with their father and [X] during each school holiday, if they go to [P]. Potentially there are three holiday periods involved bringing the outlay to somewhere between $1,920.00 and $2,400.00.
It may be the case that, if the tickets are booked and paid for well in advance, cheaper tickets may be obtained but it is also equally possible that the new year will see increases in the cost of domestic travel in Australia. I do not know. What I do know is that, given the financial circumstances of the parties, the sums involved are significant indeed.
Ms Donald anticipates that she will be a student, if she relocates to [P]. Necessarily her income will be confined to social security payments. However, she struck me as a methodical and frugal person. She is also likely to have some support from [F]. In my assessment, she is likely to be far more organised than Mr Donald in budgeting and planning for the children’s travel exigencies.
Although it seems likely to me that Mr Donald has gone to some pains to conceal his true financial position from both the court and
Ms Donald, I accept that he is not a person who is in secure financially. It also seems probable to me that he is not a person who is particularly adept at financial management and saving.
Mr Donald has also made it clear that he is affronted at the suggestion that he should contribute to the children’s travelling costs, given his vehement opposition to [Y] and [Z] going to [P] in the first place.
However the fact remains that this case is centred on the best interests of the children concerned, including the best means of them maintaining relations with each of their parents, in the difficult matrix which arises in this case. In these circumstances, it does not seem reasonable to me that Ms Donald should potentially bear all of the children’s travel expenses just because Mr Donald feels hard done by.
It seems to me that the children will benefit from spending a year in [P]. I also accept that it would not be helpful for [Y] and [Z] to be separated from their father and [X] for a period of just under one year. Accordingly it seems to me to be appropriate, in the service of the children’s best interests for their parents to contribute the necessary travelling costs involved.
There is some merit to the argument that, as it is Ms Donald who wishes to go to [P] and take the two children with her, she should pay the majority of the costs arising. However, I also think it inappropriate that Mr Donald, because of his opposition to the proposal should be allowed to abrogate his responsibilities towards the children.
It also seems to me to be prudent that responsibility the travel expenses relating to each school holiday involved should be allocated entirely to one or other of the parents, as otherwise, in my view, it would be a recipe for disaster for the parties to have to organise collecting payments from the other or later reimbursement.
In all these circumstances, what I propose is that Ms Donald should book and pay for the children’s travel between Launceston, Adelaide and return for the end of Term 1 and end of Term 3 school holiday in 2013, making the necessary bookings at least six weeks in advance and advising Mr Donald of same five weeks prior to the date of the children’s initial travel. With Mr Donald to do the same in respect of the mid year or end of Term 2 holiday.
This arrangement shares the costs somewhat. It gives each of them ample time to shop around for the best fares and to save the necessary money. If Mr Donald fails to abide by his obligations, it will mean that the children will be disappointed but the disruption to their relations with their father and [X] will be minimised.
f) The capacity of the parties to provide for the children’s emotional and educational needs
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
These criteria are closely related and so it is appropriate to consider them together. In my view, Ms Donald has shown herself to be a responsible parent. In my assessment, she is attuned to the emotional needs of all the children, including [X].
In the circumstances of this difficult case, I can understand why she should think it appropriate that an attempt be made to bring home to [X] the inappropriateness of his aggressive behaviour towards his mother on the occasion on which he left her household.
Although, it may be too late for such an intervention to be successful, I do not think her action in making a complaint to the police about his conduct towards her can be categorised as emotionally abusive of [X]. [X] needs to be shown that he is accountable for his actions and that violence towards women is unacceptable, particularly given the fact that I have reason to believe that Mr Donald may have passively condoned his ([X]’s) behaviour, once [X] became a part of his household.
It is my view that Mr Donald has not always properly discharged his parental responsibilities for the three children. He has been remiss in providing for them financially. In 2004 he withdrew from their lives for an extended period of time.
Mr Donald has demonstrated an inability to shield the children from his negative views of the mother and has denigrated her to the children. He regards Ms Donald as an enemy to be frustrated wherever possible. This is not conducive to the emotional well being of the children concerned.
Ms Donald has been criticised by Mr Donald for on the one hand being a perpetual student and on the other hand for bringing instability to the educational arrangements of the children. The children have each attended more schools than is perhaps ordinarily seen.
However, I accept that there were valid reasons for those changes of school. I also accept that Ms Donald has been a proactive parent in terms of ensuring that both [X] and [Z] have received appropriate treatment and counselling for their respective special needs.
It seems that Ms Donald has something of an academic bent. There is nothing wrong with that. I accept that she has made the necessary inquires of the school at [P] and it is likely to meet the educational requirements of [Y] and [Z]. Given her own predilections in life, it seems to me to be likely that she will retain an active interest in the children’s educational endeavours.
h) The children’s maturity, sex, lifestyle and background
i) Aboriginality
In the context of this case, these criteria do not appear to be specifically relevant.
j) Family violence
k) Any family violence order
I have alluded to concerns regarding family violence in my discussion of matters arising under the primary considerations. I have grave concerns that the circumstances surrounding [X]’s departure from his mother’s household were not well handled. [X]’s assault of his mother amounts to family violence.
Children learn their behaviour from their parents. As I have already mentioned, in my view, it is unacceptable for a child of [X]’s age to assault a parent without consequences. A parent who condones such behaviour is not an appropriate role model for such a child or indeed other children. I remain concerned that Mr Donald has either actively or passively condoned [X]’s unacceptable conduct towards his mother.
There are no family violence orders relevant to these proceedings.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
In these circumstances, it seems to me desirable that the court should bring about, in any orders made, as stable a situation as possible, for the children, which will obviate the need for any further litigation.
There are two major areas of contention between the parties, who have been separated for many years. Ironically, they have been able to manage their parenting arrangements for a significant component of that period without the intervention of the court. As such, if the court puts into place a clear arrangement in respect of both matters in dispute, it would seem there is a reasonable prospect that the parties will not resume litigation with one another.
The first issue is the proposed year long relocation of [Y] and [Z] to [P]. Once this issue is resolved, one way or the other, it is likely to remain resolved. The other issue is the question of the frequency and length of Mr Donald’s interactions with the children during school terms.
Mr Donald’s position is that eight hours per month with the children during term times, during term times is inadequate for him to maintain a proper level of relationship with the children. It is also the flavour of his case that he was in someway tricked into agreeing with the orders which give rise to this arrangement in the first place.
In these circumstances, it seems likely to me that, if I accede to Ms C’s recommendation, based largely on the reported views of the children, and maintain the current term time arrangements, it will leave Mr Donald feeling aggrieved and this, of itself, will be a prelude to further litigation between the parties.
In my view, the best option to prevent further proceedings between the parties is to modify cautiously the existing arrangements for [Y] and [Z] to spend time with their father during term times. In addition, for reasons already provided, it is likely to be beneficial for all three children to spend extended weekend time with one another.
The presumption of equal shared parental responsibility
The parties have been separated for over a decade. During a reasonable portion of this period, Mr Donald absented himself from significant involvement with the children. In my view, to a very large extent, he has been content to leave financial responsibility, for all three children, to the mother.
The parties now communicate infrequently and ineffectively. Their respective attitude for the other, as demonstrated in these proceedings, is one of veiled contempt.
At the present time, a consequence of [X]’s behaviour towards his mother, the three children concerned live in separate households. This arrangement was not as a result of any consensual decision made on the parties’ behalf. To the contrary, both the mother and the father view the other’s conduct, in respect of [X], with the gravest of suspicions.
Up until [X]’s departure from Ms Donald’s household, it seems clearly to be the case that she has made all decisions concerning the children’s education and health issues. In the case of both [X] and [Z], decisions relating to their health have been significant because of each child’s special needs.
The evidence indicates that the parties have different views as to the extent of [X]’s special needs. The father’s position being that the mother has overstated these concerns. It seems to me to be likely that the parties have never discussed, in the considerable period since their separation, any major issue to do with the children.
Section 61DA(1) creates a positive presumption that it is in the best interests of any child for his or her parents to have equal shared parental responsibility for the child. The presumption does not apply, if there are reasonable grounds to believe that one of the child’s parents has engaged in abuse of the child or family violence.
I do not think that the presumption is rebutted on either of these basis. Accordingly, I must turn to consider whether the evidence is such that the court can be satisfied that it would not be in the best interests of [X], [Y] and [Z] for the parties to exercise equal shared responsibility of them.
[X] has recently turned sixteen years of age. Of his own volition, he elected to leave his mother’s household. His academic record is not a strong one and it seems to be the case that he is investigating entering the paid workforce.
In these circumstances, particularly given [X]’s age, I question whether there is any utility in making an order that he be subject to an order for equal shared parental responsibility. More particularly, I question the utility of making any order whatsoever regarding him. In these circumstances, I decline to do so and will discharge all orders which relate to him.
Rightly or wrongly, [X] is likely to do as he pleases in respect of ongoing relations with his parents. He does not want to go to [P] and Ms Donald does not wish to compel him. She is also content to see if [X] comes round to wanting to spend more time with her in future. There are promising signs in this regard.
In all these circumstances, the court must focus on [Y] and [Z] and determine whether it is likely to be in their best interests for Mr Donald and Ms Donald to have equal shared parental responsibility for them. Given the acrimonious and fractured parenting relationship between the parties, I am not satisfied that such an order would be in the best interests of the younger children.
Accordingly, at this juncture, it is not necessary for me to consider either an equal time regime or a substantial and significant time regime for the ongoing parenting of [Y] and [Z]. Given that she has exclusively exercised parental responsibility for [Y] and [Z], up to this stage, I will make an order that Ms Donald have sole parental responsibility for these two children.
Conclusions
Having considered the various section 60CC factors applicable in this case, I am firmly of the view that the best interests of [Y] and [Z] will be best served if they remain living predominantly with their mother. In any event, Mr Donald does not wish to challenge this arrangement.
For understandable reasons, Ms Donald wishes to spend a year at the [P] Village in Tasmania. Her year at [P] will provide her with qualifications to advance her career with [F] and benefit the wider community, when she returns to South Australia.
Her decision to go to [P] is well thought out and considered. It is not, in any way, a capricious decision. Rather, the decision has been put back a year because of Mr Donald’s objections to it.
At this stage, [Y] and [Z]’s most significant relationships are undoubtedly with their mother. I am satisfied that she has tended to both their educational and emotional needs with care and love.
The two children have visited [P] on several occasions. [Y], in particular, is enthusiastic about spending a year at [P] where she has made friends.
In all the circumstances of this case, I consider that it would be beneficial for the children to spend a year at [P], with their mother. In my assessment, the year away is likely to broaden the children’s horizons and provide them with other valuable experiences.
Mr Donald has objected to the proposed relocation. He has used his objection to re-agitate issues to do with him spending time with the children in future.
As I have found, Mr Donald has been recalcitrant in respect of the provision of financial support to Ms Donald for the care of the children. In these circumstances, his objection to the proposed relocation is likely to precipitate an extreme reaction from Ms Donald.
If she is not able to pursue her educational aspirations in [P], because of Mr Donald’s objection, she is likely to feel bitterly disposed towards him, as it will be her understandable view that he has frustrated her ambitions, including her hope of financial advancement, opportunistically out of spite.
The children’s best interests, in this case, are the paramount but not the only consideration. I am not in a position to ignore Ms Donald’s legitimate expectations as to how she wishes to lead her life in future.
[Y] is thirteen years of age. [Z] is twelve. As such, they are of sufficient maturity to have well formed memories of their father and to be able to converse with him effectively over the telephone.
In my view, Ms Donald has put forward reasonable proposals for the children to maintain their relationship with their father during the period they are [P]. If the children are able to see their father on two or three occasions during 2013, I am satisfied that they will be able to satisfactorily maintain a parental bond with their father.
The fact remains, when both children were considerably younger,
Mr Donald saw fit to absent himself from the children’s lives for a period approaching twelve months. During this period, he abrogated both emotional and financial responsibility for the children. In these circumstances, it seems somewhat hypocritical of Mr Donald to stand in the way of Ms Donald’s year long sabbatical in [P].
The evidence, available to me, indicates that [Y] and [Z]’s respective relationships with their father are fraught with difficulty. In these circumstances, the family report writer Ms C was not in favour of pushing the children to extend the time which they spent with their father, particularly during school terms.
I do not dismiss those concerns. [Y], in particular, is sensitive to the derogatory comments Mr Donald makes about her mother. However, it is also apparent to me that [Y] and [Z] have a close and loving relationship with [X]. In this sense, it is important for the younger children’s ongoing wellbeing that efforts are made for them to bridge the gulf between their mother and their father’s household.
Interestingly, in these circumstances, Ms C was in favour of the younger children spending periods up to a week, during school holidays, with their father. The parties disagree as to how successful was the children’s most recent holiday visit with their father, in July of this year.
Notwithstanding the note of caution issued by Ms C and the concerns of the mother, I consider that [Y] and [Z] are likely to benefit from having a more meaningful level of relationship with their father. I accept that both children know their father well.
It is significant that Ms C observed the children to be relaxed with their father and to “good-naturedly tease him”. At the present time, the children spending only eight hours per month with their father, during the school term, provides an extremely limited context in which the children may consolidate and broaden their relationship with their father.
I do not think that this timeframe is sufficient for the children to have a meaningful relationship with either their father or indeed [X]. This is not their best interests. It is, I think, incumbent upon the court, at this stage, to attempt to facilitate a deepening of the relationship which the children have with their father.
The [M] shack has totemic significance to Mr Donald. It is his abiding wish to be able to spend time with the children at the shack. I accept that it is not practicable for the children to visit the shack under the current arrangements.
In these circumstances, I propose extending the time [Y] and [Z] spend with their father to include a regime of four visits each term to
Mr Donald from 10:00am on Saturday until 4:00pm the following Sunday. This regime should not be unduly disruptive to the children’s academic requirement and can commence prior to the year in Tasmania and resume after the year has completed.
In conjunction with this regime, I will order that the children spend time with their father for periods of a week at a time in each of the short school holidays and for two periods of a similar length during the end of year school holidays. In fixing the latter periods, I will take into account the celebration of Christmas.
As it is Ms Donald who wishes to spend 2013 in Tasmania, it is my view that she should bear the larger proportion of the children’s travel expenses necessary for them to reconnect with their father during school holiday periods. However, it does not seem unreasonable that Mr Donald should also make some contribution in this regard.
To this end, I will order that Ms Donald book and pay for the children’s necessary travel at the end of the first and third school term to come to Adelaide and Mr Donald book and pay for the mid-year school holiday.
Notwithstanding my view that it is inappropriate for the parties to share equally parental responsibility for [Y] and [Z], I will direct that the mother keep the father informed of the children’s educational progress by directing she provide him with copies of the children’s recurrent school reports, once they are released.
It is also appropriate that the parties be ordered to provide to each other their relevant contact details, including addresses, telephone numbers and the like and be ordered to keep the other informed of any serious medical emergency or accident which may befall the children, including [X].
It also needs to be underlined to the parties that the dispute between them is their dispute, not their children’s. I will make an order that the parties be restrained from denigrating, abusing or insulting the other parent in the presence or hearing of the children or permitting any other person so to do. I will also restrain the parties from directly discussing these proceedings with the children.
Finally, I accept that it is likely to be helpful to Mr Donald if he attends a Kids R First course. However, in my assessment, he is likely to be resentful about being forcibly compelled to attend such a course. In these circumstances, I do not propose to make an order that he attend any post-separation parenting course or indeed any course of anger management other than the Kids R First Course, which Ms Donald has said she will willingly attend.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and forty-one (341) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 30 August 2012
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