Drake and Drake - [2008] FMCAfam 1140

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRAKE & DRAKE

[2008] FMCAfam 1140

FAMILY LAW – Parenting orders – relocation – Wife seeking to relocate to [Y] with parties two children aged 14 and 12 – parties agree Wife to relocate with eldest child – Husband seeks youngest child remain with him – separation of siblings – weight to be given to children’s views – ability to facilitate relationship between child and other parent – ordered both children reside with Wife and she be permitted to relocate forthwith.

Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA

R v R: Children’s wishes (2000) FLC 93-000

Applicant:

MS VASSER (FORMERLY DRAKE)

Respondent:

MR DRAKE

File Number:

MLC 1659 of 2008

Judgment of:

Bender FM

Hearing date:

17 October 2008

Date of Last Submission:

17 October 2008

Delivered at:

Melbourne

Delivered on:

6 November 2008

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Morrison & Sawers Lawyers

Counsel for the Respondent:

Ms Devine

Solicitors for the Respondent:

Faram Ritchie Davies Lawyers

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children of the marriage [S] born in 1994 and [M] born in 1996 (“the children”).
The children live with the Wife and she be permitted to forthwith relocate with the children to the La Trobe Valley.
The children spend time with and communicate with the Husband as follows:
(a)for nine days in the first and second term holidays commencing at 12.00 noon on the first Saturday of the holidays and concluding at 12.00 noon on the second Sunday of the holidays;
(b)for the whole of the third term holidays, subject to the Husband giving the Wife 28 days notice in writing of his intention to take the children on holiday to Queensland or such other holiday destination as the Husband determines, and failing such notice for nine days commencing at 12.00 noon on the first Saturday of the holidays and concluding at 12.00 noon on the second Sunday of the holidays;
(c)for 15 days during the latter part of the long summer vacation in each year commencing at 3.00pm on the third last Saturday of the holidays and concluding at 3.00pm on the Sunday prior to school recommencing;
(d)for no less than one weekend in each of the school terms on a weekend agreed between the parties in writing, but to include, where possible, long weekends and the Father’s Day weekend, to commence at 9.00am Saturday and conclude either at 3.00pm Sunday or 3.00pm Monday if a long weekend;
(e)by telephone each Wednesday and Sunday between 7.00pm and 7.30pm, with the Husband to telephone the children on such number as provided by the children;
(f)by telephone on the children’s birthdays, the Father’s birthday, Easter Sunday and Christmas Day at such time as nominated by the Husband;
(g)by email, SKYPE or such other electronic communication; and
(h)such other times as are agreed between the parties in writing.
Whilst the children are spending time with the Husband pursuant to order 4 herein:
(a)the Husband shall ensure the Wife has the address and if available, the contact telephone number of holiday destinations of the children outside Shepparton; and
(b)the Wife shall be at liberty to telephone the children each Wednesday and Saturday between 7.00pm and 7.30pm to either of the children’s telephone numbers.
The Husband’s communication and time with the children pursuant to order 4 herein shall commence as from 1 January 2009.
For the purposes of the time the children spend with their father pursuant to orders 4(a), (b), (c) and (d) herein, the parties shall meet at the [omitted] Road House on the Hume Highway at the commencement of the time and the Wife shall collect the children from Shepparton Police Station at the conclusion of that time.

BY CONSENT:

The Husband, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Wife to or in the presence or hearing of the said children (or either of them) and from permitting any other person so to do.
The Wife, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Husband to or in the presence or hearing of the said children (or either of them) and from permitting any other person so to do.
The Wife and Husband keep each other informed of their residential address and telephone number, and notify the other in writing 14 days prior to any proposed change.
Each parent is to be:
(a)kept informed of any illness or injury affecting either child;
(b)authorised to obtain any information normally available to parents from health professionals and educational institutions concerned with the children; and
(c)at liberty to attend and participate in any educational or extra curricular activities of the children.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 1659 of 2008

MS VASSER (FORMERLY DRAKE)

Applicant

And

MR DRAKE

Respondent

REASONS FOR JUDGMENT

Introduction

The parties, who live in Shepparton, separated in August 2004 and final orders were made two months later providing for the children of the marriage [S] born in 1994 and [M] born in 1996 (“the children”) to live with their mother and spend regular time with their father.
These proceedings commenced by way of an application by the Wife for the recovery of the children who were overheld by the Husband in February 2008.
Orders were made on 20 March 2008 for the children to be returned to the Wife. The Husband filed a Response seeking orders that the children live with him and the Wife filed a Reply seeking orders allowing her to relocate with the children to [Y] in the La Trobe Valley.
At the commencement of the final hearing, it was advised that the parties had agreed that the Wife and 14 year old [S] were to relocate to [Y]. The issues for determination were two fold:
a)whether 12 year old [M] lives with his father in Shepparton or relocates with his mother and sister; and
b)the frequency and practical arrangements for the time the children will spend with the parent they are not living with.

Background

The Husband was born in 1963 and is 45 years of age. He is employed as a [occupation omitted].
The Wife was born in 1973 and is 35 years of age. She is employed part-time as a [occupation omitted].
The parties commenced cohabitation in 1991 and married in April 1993. They separated in August 2004.
In October 2004, the parties entered into consent orders which provided for the children to live with the Wife and for the children to spend time with the Husband each alternate weekend and on Wednesday and Thursday evenings.
The Wife commenced property proceedings in April 2005 and the Husband responded with an application for residence. A family report was prepared by Ms Jay Manya and released on 12 October 2005 (the “first report”). Final orders were made by consent on 28 October 2005 which provided for the children to continue to reside with the Wife and spend time with the Husband each alternate weekend, overnight each Wednesday and for specified school holiday periods.
Property matters were also finalised by consent.
From the time of separation, the Husband subjected the Wife to a continuous stream of verbal and written abuse, referring to her amongst other things as “the lesso”, “the lesso bitch”, and “the fucking lesso bitch”. The Husband referred to the Wife in these terms directly, and in the presence of the children, often texting the children with messages referring to the Wife in these terms. An example of the language used in text messages sent by the Husband to the children is set out in the following message:
“Of course I love you not blaming you blaming that fucking lesso bitch.”
The consent orders in 2005 did not lay the issue of the children’s residence to rest. The Husband continued to pressure the children to live with him and in September 2007, correspondence was forwarded by the Husband’s then representatives alleging that the children wished to live with the Husband and inviting the Wife to attend mediation to discuss the matter.
The Wife was of the view the Husband was putting the children under considerable pressure to live with him and in light of his continuing abuse to her believed negotiation was impossible.
After an exchange of correspondence between the parties’ solicitors in January and February 2008, the Wife’s solicitors received correspondence to which was attached letters from the children indicating they wished to live with their father and listing their mother’s perceived shortcomings.
On 18 February 2008, the children were overheld by the father following correspondence sent by the children to the Wife indicating that they were going to live with their father.
On 25 February 2008, the mother issued an application for a recovery order and on 26 March 2008, an order was made, by consent, for the children to return to live with the mother, for the pre-existing arrangements to recommence in relation to the time the children spent with their father and otherwise for the preparation of a family report.
In the six weeks that they were with the Husband, the children did not spend any time with the Wife.
The Husband filed a response to the Wife’s application for a recovery order seeking orders that the children live with him and spend alternate weekends and half school holidays with the Wife.
In or around December 2007, the mother commenced a relationship with Mr M. Mr M is employed with the [omitted] plant in Gippsland and resides in a family property in [Y], some 20 kilometres south of Morwell. Mr M has four children aged 14, 13, 9 and 6, who reside with him four nights in every ten, pursuant to an informal arrangement reached between Mr M and his former partner.
Ms Jay Manya originally interviewed the parties and the children for the purposes of the preparation of a family report in June 2008. Subsequent to the preparation of that report, the Wife made the decision that the relationship with Mr M was a committed and ongoing one, and that it was her wish to relocate to [Y] with the children to live with Mr M. In light of this decision by the Wife, Ms Manya

re-interviewed the parties and the children on 17 September 2008 to enable her report to reflect the applications now before the Court. The Wife formally filed a Reply seeking orders to relocate with the children on 15 October 2008.
Ms Manya’s report was released to the parties on 13 October 2008 (the “second report”). Ms Manya reported at paragraph 31:
“[S] spoke clearly and decidedly that she wished to relocate to [Y] with her mother. She could not cope with the idea of living away from her mother. She further explained that even during previous interview with the writer she really had a wish to continue in her mother’s primary care, but felt compelled to ‘tell lies’ about her wishes. She was scared of upsetting her father.”
When the matter came on for hearing before me on 17 October 2008, Counsel for the parties advised that it had been agreed that the Wife and [S] were to relocate to [Y] and that the issue for determination before the Court was whether [M] would also relocate with his mother or remain living with his father and what the arrangements were to be for the children to spend time with each other and the parent with whom they were not living.

Wife’s Proposals

The Wife seeks orders that she and both children be permitted to move to [Y] and that the children spend time with the Husband one weekend per month, for half the term holidays and for such period in the long summer school holidays as fits in with the Husband’s work commitments. The Wife proposes that at the commencement of the Husband’s time with the children, she meet him at Longwarry for a changeover, and at the conclusion of that time she will collect the children from the Police Station in Shepparton.

The Husband’s proposals

The Husband’s proposals were that [S] move to [Y] with her mother and that [M] continue to reside in Shepparton with him. He proposed that the children spend all of the school holidays together with the first term holidays being spent with the Husband, the second term holidays being spent with the Wife, the third term holidays being spent with the Husband, the first half of the long summer vacation with the Wife, and the second half of the long summer vacation with him. He proposed that changeover take place at the [omitted] Road House on the Hume Highway, this being a location equidistant from both homes.
Cross-examined on his proposals, and in particular that his proposal meant that the children would only see the parent with whom they were not living twice a year, he expressed the view that to travel all that distance for four to five days was a waste of time as they would not get “good family time”. His evidence in relation to the children spending some time during school term was of a similar view – ie. traveling all that distance for only a couple of days was a waste of time.
The Husband was asked whether the arrangements proposed by the Wife would work if she was prepared to do all the driving. He was adamant she wouldn’t do that and that all she would do if [M] lived with her would be to “lock him up”. He did not consider any alternative arrangements for time with the children to those proposed by him as workable.
The Husband was asked what his proposals were for the time the children would spend with him in the event orders were made for both children to relocate with the Wife to [Y]. Through his Counsel, the Husband indicated that he had no formal proposal and that the proposal of the Wife was unworkable because of the distance, expense, his work commitments and the relatively short periods that the children would be with him.
The Husband was strongly of the view that [M]’s wishes that he wanted to stay in Shepparton living with his father should be respected. It was his case that [M]’s stated wishes should determine the matter. He is of the view that [M]’s wishes are genuine, and that he has in no way influenced [M] or placed him under any undue pressure to say that he wants to live with his father.

Ms Jay Manya

Ms Jay Manya is a psychologist who has prepared two family reports in this matter. The first dated 12 October 2005 was prepared when the parties first came before the Court and the second dated 13 October 2008 which was prepared for these current proceedings.
In paragraph 34 of her first report, Ms Manya states:
“It seems that the father discusses adult issues with the children probably to gain their emotional and moral support towards him as the ‘aggrieved and blameless party’ which makes the children emotionally unsettled, angry with their mother and creates a wish in them to protect their father from further emotional injuries. This trend is not emotionally healthy for the children if it continues for prolonged periods.”
In her second report, at paragraphs 47 and 48, Ms Manya states:
47. There is evidence on the Court documents that even at the end of 2007 and early 2008 the father has been addressing the mother as ‘the thieving lesso bitch’ and referring to [S] and [M] as ‘MY’ children. Mr Drake continues to be highly venomous in his expressed views towards the mother and more importantly finds it appropriate to pass on such communication through the children to the mother.”
48. “Ms Drake says that the father has sent messages to the children influencing them to think that their mother is ‘a liar, it is boring to live with her, not to allow the Lesso to push them around etc’. There is evidence to support that he has undermined mother’s role on a regular basis. As stated previously Mr Drake has a very limited capacity to have insight into his own behaviour or about the emotional needs of his children. His contempt and disrespect towards Ms Drake is appalling and has a long term damaging impact on the children. Ultimately it is likely to make the children highly confused about relationships in general and ambivalent about their relationship with both their parents.”
Under cross-examination, Ms Manya confirmed that the father’s behaviour, as described in her first report, had continued and accordingly there was real potential for long-term damage to the children. When asked to expand what she meant by this, Ms Manya said:
“Children can remain ambivalent, mistrusting, about the most important relationship in their life throughout their lives. They can have a distant relationship with the mother as well as the father when they grow older and see things differently. They may lack self-esteem as to who they are and what part of them is from their dad and their mum. That could be forever in doubt for these children. So there are a lot of - they stand to lose a lot on an emotional, social, and also familial background. They get to lose a lot if this continues.”
In her report, Ms Manya describes her interviews with the children. In relation to [S], she notes that when she saw her in June 2008, she presented as generally annoyed, but unable to speak about the reasons for being angry. She noted [S] was difficult to engage in discussions and declined to express an opinion. When Ms Manya saw [S] in September 2008 however, [S] was adamant that she wished to relocate to [Y] with her mother. Ms Manya noted that [S] was concerned that the Court would not understand her views because she had stated different things previously, and said that she wished to write a letter to “the judge”.
Ms Manya then reports that [S] spontaneously wrote a letter and was firmly of the view that that letter was a true reflection of how [S] truly felt. That letter was annexed to the report in the following terms:
“To Judge,
In June I saw jay and said I don’t mind who I live with But now mum is moving away And I can’t live with out her. I need my mum with me. If I have too (sic) stay with dad I don’t have proper friends because there (sic) parents don’t like him and don’t want there (sic) daughters around him so I won’t have proper friends and I won’t have my mum around, like I need. I can’t tell dad this because I am really scard (sic) of him and what he is going to do/say. I need my mum because I love her so so so much and I don’t feel comfortable asking dad for girl things like pads and I feel happier with mum and mum doesn’t put presser (sic) on me like dad does. You only have 1 shinin (sic) star and for me that is my mum. dad always swears and calls mum names and I don’t like it because mum is a nice lovling (sic) person and as I said before I am scard (sic) of dad so I am too scard (sic) to tell him to stop and that mum is the best an (sic) a really nice person. I love [Y] (where mum is moving) and I really really hope I can enjoy the rest of my life how I want it to be lived.
thanx (sic) [S].
Ms Manya strongly recommended that it was in [S]’s best interests that she be allowed to relocate with her mother to [Y].
In relation to [M], Ms Manya reports that during his first interview in June 2008 he was quite iffy about his future living arrangements, and that whilst he was outwardly calm, his inner doubts and insecurities could be seen.
Ms Manya reports in the September 2008 interviews, [M] told her he was aware that his Mum was moving to [Y] and that [S] wanted to go with her. He told Ms Manya that he knew that [S] had visited a school in [Y] but that she had told her father that she didn’t wish to go. [M] knew his sister had lied but he didn’t want to tell his father that.
In the second report Ms Manya, in paragraph [54], states:
“[M] presents as unsure about the move but it is clear that he would experience a great sense of loss and grief if separated from his sister. He states a preference to stay in Shepparton, but he does not present as pleased with his decision.”

The issue of the separation of siblings will be discussed at greater length later in this judgment.

The Husband’s response to the family report

It was the Wife’s evidence that the parties had been advised that they would receive copies of Jay Manya’s second family report on Wednesday 15 October 2008. The mother indicated that [S], being aware of the receipt of the report and that it would contain the information that she wanted to move to [Y] with her mother, was most concerned as to how the father would respond to the receipt of this report, especially as she would ordinarily spend Wednesday night with him. The mother indicated that [S] had texted her father twice on Wednesday to see if he had got the report and that as [S] was agitated, she gave her the option not to go to her father’s house that evening.
The mother gave evidence that on Wednesday evening, [S] received a text message from [M]’s phone in the following terms:
“You blew the whole report. Dad says he wants his phone back and you are not welcome here.”
The mother had in her possession [S]’s mobile phone and the message in those terms was sighted during the hearing.
The text message received by [S] after the release of the second family report was discussed with Ms Manya. Whilst the father was adamant he had neither sent the text message himself nor directed [M] to send it, Ms Manya in cross-examination said:
“I don’t believe for a minute that [M] would say that to [S]. It is influenced by his father. I am very sure about that.”
“I don’t believe [M] would be doing it without the influence of his father.”

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
It is established law that in relocation cases the best interests of the children remain the paramount consideration. However, that is not the sole consideration and a parent’s wish to relocate and rights of freedom of movement are also very relevant considerations. In this case, agreement has been reached that the Wife and the child [S] will relocate to [Y], so it is an issue as to whether [M] “relocates” with his mother or remains in Shepparton and lives with his father.
In this case, both parties agree that they should have equal shared parental responsibility for the children. This was an order that was made by consent on 25 October 2005, and neither parent seeks to discharge or alter that order. In light of their acknowledged complete inability to communicate, and failure to consult, it is questionable whether the parties will comply with the requirements of the Act to consult on the major long term issues that arise in respect of the children.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
There is no application by either party that the Court makes such an order, nor is it practicable as it is agreed they will be living some
300 plus kilometres apart.
Section 60daa(2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the Court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)          the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Again, as the parties have agreed that they will be living more than

300 kilometres apart, this is not an application that is before the Court, nor is it practicable or achievable.
When determining what is in the children’s best interests, the Court must consider the matters set out in ss.60cc (2) and (3) of the Act. Each of the matters contained in the subsections must be considered and assessed in the context of each of the party’s behaviours and proposals and a determination as to which party’s proposals best meet the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The children do have a meaningful relationship with both their parents. However, their relationship with their father is coloured by the unremitting pressure that he has placed on both of them to come and reside with him and the constant negativity he displays towards their mother.
In his evidence, the husband confirmed that he had told both children that in the event they were to relocate to [Y] with their mother, he would take from them the mobile phones that he currently provides and pays for. When being cross-examined in relation to the text message sent by [M] to his sister, which makes reference to Dad wanting his phone back, the Husband said:
“I’m not having my daughter have a phone that I am paying for when she is living six hours away.’
Having agreed to the relocation of his daughter to [Y], one might have expected the Husband to want his daughter to have a telephone to enable him to easily communicate with her rather than the opposite.
When the Husband was being cross-examined in relation to the various proposals for the children to spend time with the parent with whom they are not living, the Husband’s views on the appropriateness of the proposed arrangements were very much self-focussed and not focussed on what would enable the children to best maintain their relationships with both their parents. For example, the Husband commented that the weekends were not worthwhile because of spending four to eight hours travelling. It was put to him that if [M] were living with him under his proposal he would only see his mother twice each year. He was asked whether that would be good for [M]. He responded, “Is it good for me?” and said that his work commitments would make it impossible to spend any weekend time with his children.
On the evidence of Ms Manya there is clear risk of psychological harm to the children in the event that the Husband continues to expose the children to his negative views of their mother.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account which I will consider in turn.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

[S] has expressed a strong view to relocate with her mother to [Y] and there has been agreement reached that that is what is to occur.
As stated previously, it is the Husband’s case that [M] has expressed a strong view to remain in Shepparton living with him, that the Court should respect [M]’s view and that should be what determines the outcome of the case.
The Wife’s evidence was that [M] had said he doesn’t want to leave Shepparton and that he wants to live with his father. However, she was strongly of the view that [M] was undecided about what he truly wanted and that he had been heavily influenced by his father in saying that he wanted to live with his father and not leave Shepparton.
When [S] was being interviewed by Jay Manya, she revealed that she often told lies to her father that she wished to live with him as that kept her out of trouble with her father (see paragraph 32 of Jay Manya’s second report). It was the mother’s evidence that she had only realised very recently just how much pressure [S] had been put under by the Husband to say that she wanted to live with him. She was strongly of the view that [M], being two years younger than [S], was under the same pressure but had not reached an age where he felt he could say what he truly wanted.
The mother also conceded that [M] has lived all his life in Shepparton, has many friends, he is very happy in his school and most importantly, he is heavily involved in and loves his football and cricket. She conceded that part of his desire to stay in Shepparton was so he could continue to play his sport and to be with his friends. She made the observation that [Y] also has football and cricket clubs, and that [M], being a sociable young man, would quickly make friends in his new school environment.
Both [S] and [M] are mature young people who have expressed, to differing degrees, views as to where they wish to live into the future.
It is to be noted however that it was only very recently that [S], at the age of 14, felt sufficiently confident to truly express her wishes and to acknowledge that until that time her stated desire to live with her father had been a lie concocted to appease her father and protect herself from his unremitting pressure to say that that was what she wanted.
Whilst [M] is, not with complete conviction, indicating a desire to continue to live with his father, there has to be real concern that this is not a true reflection of his feelings but is indicative that he has not achieved [S]’s level of maturity where he is able to withstand his father’s pressure and say what is truly in his heart.
In R v R: Children’s wishes (2000) FLC 93-000 at paragraph [52], the Full Court said:
“In determining the weight to be given to children’s expressed wishes it must be borne in mind… that while they are an important factor, they are not the only factor to be considered in determining their best interests.”
At paragraph [54], the Full Court said:
“There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
At paragraph [57], the Full Court said:
“However it is not the law that those wishes are determinative of the outcome which may be overridden by other factors relevant to the determination of the children’s best interests.”
In her second report, Ms Manya reported at paragraph 54, that:
“[M] presents as unsure about the move but it is clear that he would experience a great sense of loss and grief if separated from his sister. He states a preference to stay in Shepparton but he does not present as pleased about his decision. He is very loyal to his father and has a stronger relationship with him. Moving him away from his father against his stated wishes may not be beneficial for him. On the other hand if he feels forced to go with his mother he may not settle well at his new location.”
Paragraph 55 of Ms Manya’s second report states:
“[M] might be assisted to make a final clear decision regarding his relocation if he had three sessions with a local psychologist before the final determination of the matter and a letter from the psychologist about the outcome would be helpful to the Court before the final determination. After such discussion if [M] feels positive about relocation it is recommended that both children are allowed to relocate with their mother to [Y]. If he is content to reside with his father in Shepparton he should be allowed to do so. It would be helpful to provide a copy of this family report to the concerned psychologist.”
When cross-examined, Ms Manya indicated that [M] was quite ambivalent about where he wanted to live.
When cross-examined about the suggestion that [M] attend upon a psychologist to assist him in reaching his decision, Ms Manya made it clear that she wasn’t advocating that the decision be left to [M], but rather allow him to come to terms with any decision that is made as to where he lives. Ms Manya said:
“I thought that, through counselling, he may be able to come to that. My guess is, if he has a professional working with him for three occasions, he would become aware and he would most probably decide to go with his mother. That’s my guess.”
When cross-examined as to the strength of that guess Ms Manya rated the probability as eight out of ten.
In her second report, when discussing [M], Jay Manya in paragraph 41 noted that:
“[M] did not wish to change schools, leave his friends behind or stop playing sport. Most of all he worried about his father being alone and morose.”
When cross-examined on this, Ms Manya was concerned that [M] was putting the feelings of his father ahead of his own and that his stated wish to remain in Shepparton was more to look after his father than a reflection of how he truly felt.
When cross-examined around the issue of not being able to play sport, Ms Manya indicated that that was because:
“That’s what his dad believes too – the exact words of the father that he says.”

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

Both children have a close and loving relationship with their mother.
Both children have historically had an apparently close and loving relationship with the father, more so [M] than [S].
Indications that [S]’s relationship with her father may not be so close in the future are:
a)the Husband’s reaction to [S]’s disclosure that she preferred to live with her mother and move to [Y] as evidenced by the text messages she received via [M];
b)[S]’s disclosures to Ms Manya that she was unable to tell her father the truth of her wishes because of her real concerns as to that response;
c)the Husband’s unwillingness to put himself out in order to continue his relationship with [S] upon her move to [Y]; and
d)the Husband’s demand that [S] return the phone.
If this Court decides that [M] will move with his sister and mother to [Y], the quality of [M]’s relationship with the Husband may be compromised if the Husband reacts negatively to that decision.
In her second report, Ms Manya in paragraph 57 states:
“If both children move away from him, Mr Drake might find the change in his life unbearable and perceive it as a ‘great injustice’ to him and to the children as he seems unable to separate his personal feelings and experiences from that of his children’s views and perceptions. He would need professional support to cope with the enormous sense of loss he is likely to feel about the children living away from him and to move on positively with his life.”
Hopefully Mr Drake will take this advice.
[S] and [M] have a very close and loving sibling relationship.

Ms Manya noted in cross-examination that:
“[M] and [S] are very close brother and sister.”
This was evidenced by [M] not disclosing to his father that [S] wanted to move to [Y] with their mother, even though he knew that [S] was lying to her father when she told him that she wanted to live with him. His loyalty to his sister outweighed his loyalty to his father in that situation.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the Court must also take into account

sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the Court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

In the face of continuing denigration and verbal abuse by the Husband, the Wife has at all times ensured that the children have spent time with the Husband in accordance with the consent orders made by the Court.
In her second report, Ms Manya states at paragraph 56:
“The writer believes that Ms Drake is more inclined to allow the children a consistent relationship with their father in the future.”
Unfortunately, the same cannot be said of the Husband. Examples of the ongoing denigration and abuse by him of the Wife have been previously outlined in this judgment and that attitude was clearly apparent in the evidence that was given by him to the Court.
Of greater concern, is that the Husband makes no effort to shield the children from his attitude about the Wife and uses them as one of the means of communicating his disregard for her.
Ms Manya was cross-examined at some length in relation to the Husband’s response to future arrangements in relation to the children. In paragraph 11 of her second report, Ms Manya states:
“The father initially shared that he was unsure when the children can spend time with their mother if she lived in [Y]. When pressed for a firm answer he stated that the children may spend time with their mother in school holidays provided that they wished to do so.”
Ms Manya indicated in her evidence:
“It is Mr Drake’s confirmed belief that the children don’t miss their Mum. They don’t really want to see their Mum. So it is unlikely that they may want to see their Mum in which case they won’t see their Mum.”
Ms Manya further noted that throughout her interviews with Mr Drake, he did not give any affirmative answers to her questions as to the benefits of the children spending time with their mother, of the mother’s parental capacity or of the depth of the relationship between the children and their mother.
The Court can have no confidence in the Husband’s willingness and ability to promote the children’s relationship with their mother.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The agreement by the parties that the Wife and [S] will relocate to [Y] will mean significant changes in relation to the children’s circumstances. They will, of necessity, see less of the parent with whom they are not residing. Under the Husband’s proposal, the children would only see the other parent twice a year, and each other four times a year.
The Husband’s stated intention to take their mobile phones from the children, would also limit telephone communication.
If both children live with the Wife in [Y], they will see their father less regularly than is currently the case and his capacity to be involved in special occasions such as birthdays and sporting events will be limited unless he is prepared to travel to [Y], something he seems unwilling to do.
The Husband’s proposal that [M] live with him in Shepparton and [S] live with her mother in [Y] would mean the separation of the siblings. Ms Manya was most concerned as to this aspect of the proposal as it was her evidence that [S] and [M] have a very close sibling relationship and that they, like many children of separated parents who have remained in conflict, have been reliant on each other for support.
Ms Manya’s description of [M] when he was discussing with her the possibility of being separated from his sister indicated just how difficult this possibility for [M] is. She described him as being teary, having a trembling voice and having to go and stand quietly in the corner and taking some two minutes to compose himself.
It is apparent that [M] and [S] would be adversely affected if forced to live separately and apart, particularly [M], who Ms Manya described as having less emotional maturity and strength than his sister and likely to experience a great sense of loss and grief if separated from her.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are obvious practical and financial difficulties that will arise as a result of the mother’s relocation to [Y].
Previously in this judgment I have set out the parties proposals in relation to the children spending time with the other parent. In particular, I have detailed the difficulties the Husband perceives in being able to maintain any regular ongoing physical contact with the children.
I have formed the view that, for the children to spend meaningful time with their father, the bulk of the travelling will need to be done by the Wife.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

The Wife has the capacity to provide well for the children’s physical, intellectual and emotional needs and has done so to date.
The Husband has the capacity to provide for the children’s physical and intellectual needs. Whilst there is no doubt that the Husband loves his children very much, his inability to shield the children from his active dislike of and disdain for the Wife raises serious doubts as to his ability to provide for the children’s emotional needs. This judgment previously sets out the real concerns that Ms Manya has as to the long term impact on the children if the Husband is unable to address these issues and shield the children from his extreme negativity about the Wife.
Ms Manya was asked as to how best to assist [M] deal with his sense of responsibility towards his father and to shield him from the potential of the father to undermine him embracing a new lifestyle in [Y],

Ms Manya indicated:
a)that [M] should not be made to spend time with his father until he becomes settled with his mother;
b)that someone in authority should explain these orders to [M] so that he can take on board that it was not his decision; and
c)that his mother arrange for some therapeutic intervention to assist [M] in allowing himself to settle happily and comfortably in [Y].

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

Not relevant.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The Wife has demonstrated a positive and appropriate attitude to the responsibilities of parenthood, in the face of considerable negativity and pressure applied by the Husband.
The Husband, in exposing the children to his ongoing negativity and denigration of the Wife, has not exhibited the same level of responsibility to parenting the children.
Of further concern was a recent incident when the child [M] was in the Husband’s care. [M] had injured his arm whilst at football and there was possibility that [M]’s arm may have been broken. The Wife was only advised of [M]’s injury through [S]. At no time did the Husband contact the Wife to tell her that [M] was at the hospital or that he had been injured.
The Husband, who currently provides both children with mobile phones which enables him to communicate with them has placed a block on both the children’s phones so that the Wife is unable to communicate with them or they with her when they are with the Husband.
Whatever personal views the Husband may have of the Wife, failing to advise the Wife of an injury to one of the children whilst in his care or preventing them from contacting her using their telephones in an emergency is not in the children’s best interests.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

The Wife obtained an Intervention Order against the Husband on

27 January 2006 because of the abusive text messages, emails and letters being sent by the Husband to the Wife. The Husband breached that Intervention Order by continuing to send abusive text messages, emails and letters, and accordingly the Intervention Order was extended for a further 12 months, expiring on 26 January 2008.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

Not relevant. The Wife’s Intervention Order against the Husband expired on 26 January 2008.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The possibility of [M] rebelling against an order requiring him to live with the Wife and running away to his father was raised in cross-examination with Ms Manya.
It was Ms Manya’s evidence that:
“After being with Mum, once he is placed with his mother, if there is no further negative influence from the father, I am confident [M] will settle well with his mother, but if there is ongoing confusion, creating messages from the father, it will be difficult for him to settle with his mother.”

Section 60cc 3(m) any other fact or circumstance that the Court thinks is relevant

Both [S] and [M] spoke positively of the mother’s new partner, Mr M and of Mr M’s four children.

Conclusion

In balancing the best interests of the children, taking into account all of the evidence, I am of the view that it would be in [M]’s best interests that he reside with his mother and sister in [Y].
In forming this view, I have balanced the weight to be given to [M]’s stated wishes to reside in Shepparton with his father against the impact on him of being separated from his sibling [S], and the real probability that his father will not facilitate him having an ongoing and meaningful relationship with his mother.
The evidence of the Husband himself and the expert opinion of

Ms Manya supports a finding that if [M] were to reside with his father, he would not be encouraged to pursue a relationship with his mother. On the contrary, he would be actively encouraged not to have a relationship with his mother as his father would continue to expose him to his strongly held negative opinion of the mother as a person and as a mother.
If he lived with his father, not only would [M] not have a relationship with his mother, but he would also have a greatly diminished relationship with his sister, someone with whom he has a very close relationship and upon whom he has great emotional reliance.
There is no doubt that [M] will miss his friends and his sport, but I am satisfied that he will be able to enjoy and pursue his sporting loves in [Y], as well as making a new group of friends as he starts his schooling in the Latrobe Valley.
It will be important for [M] and [S] to be initially shielded from their father’s disappointment in this decision, and from any undue pressure that he may, and probably will, place on them to rebel against this decision. Accordingly, provision will be made in the orders for the Wife and children to relocate as soon as practicable and for there to be a period of time to allow both of them to adjust to their new circumstances without overt negativity from their father.
It was Ms Manya’s recommendation that [M] in particular may be assisted in his adjustment to the change of circumstances by having the orders explained to him by someone in authority, so as to understand that it was his parents who agreed that this decision was to be made by the Court and that he bears no responsibility for its outcome. Unfortunately, this is a matter that proceeded without the assistance of an Independent Children’s Lawyer. In those circumstances, whilst not an order of this Court, it is requested that the Wife’s solicitor explain the orders to [M].
Ms Manya also suggested that [M] may be assisted in adjusting to his new life in [Y], if he were to receive some therapeutic counselling to allow him to work through any conflict and/or responsibility he feels in enjoying his new life. I do not intend to make an order for that counselling. The Wife assured the Court she will seek such assistance for [M], and [S] too, if needed and I accept her assurance.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate: Sarah Hession

Date: 6 November 2008