DURRAND & DYER
[2015] FCCA 380
•14 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DURRAND & DYER | [2015] FCCA 380 |
| Catchwords: FAMILY LAW – Contested parenting application – four children – 16 year old twins at boarding school – parties agree about 15 year old living expressing strong views to live with mother in Melbourne – dispute about 5 year old – mother and father each impressive parents and each excellent custodians of their Aboriginal and Torres Strait Islander heritage – both parents from the (omitted) lands – mother’s proposal enables youngest child to spend time living with his older brother – siblings have close and loving relationship – finely balanced matter. |
| Legislation: Family Law Act 1975, ss.60 CC, 61DAA, 65DAA |
| Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MS DURRAND |
| Respondent: | MR DYER |
| File Number: | MLC 11613 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 16 & 17 February 2015 |
| Date of Last Submission: | 17 February 2015 |
| Delivered at: | Cairns |
| Delivered on: | 14 August 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Ms Wilson |
| Independent Children's Lawyer: | Ms Susan Gray Solicitor |
ORDERS
The Father and the Mother have equal shared parental responsibility for the major long term issues of the Children, W born (omitted) 1998, X born (omitted) 1998, Y born (omitted) 1999, and Z born (omitted) 2009 (“the children”), including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
Notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the Children whilst they are living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the Children whilst they are living with or spending time with him.
The Child Z, born (omitted) 2009 (“the Child”) will live with the Mother in Melbourne.
The Child Y, will live with the Mother in Melbourne. Y will spend time with the Father in (omitted) or elsewhere during school holidays at times and places agreed to between Y and each parent.
The twins W and X born (omitted) 1998 (“the twins”) are to remain at boarding school until the completion of their studies. The twins will spend time with the parents during their holiday periods at times and places agreed to between the twins and each parent.
Z spend time with the Father as agreed between the parties, and if they fail to agree, then specifically as follows:
(a)Alternating holiday periods throughout the year, for the duration of one whole holiday period as follows:
(i)Term 1 Easter school holiday period with the Father in even numbered years, and with the Mother in odd numbered years;
(ii)Term 2 school holiday period with the Mother in even numbered years and with the Father in odd numbered years;
(iii)Term 3 school holiday period with the Father in even numbered years and with the Mother in odd numbered years;
(b)Term 4 Christmas school holiday period with the Mother in even numbered years and with the Father in odd numbered years. NOTING THAT in the Christmas 2015 holidays, for one month with the Mother of those holidays and will spend the balance of those holidays with the Father unless the father agrees to forego that time on the basis that the children will live with him for the whole of the Christmas holidays in 2016.
The cost of contact, over and above any reimbursement for travel under scholarships, is to be paid equally between the parties, including the cost of the Child Z travelling to and from (omitted) and Brisbane. The Mother is to pay the cost of Z travelling to (omitted) and the Father is to pay the cost of him returning to Melbourne.
Z communicate with the Father through Face time, Skype or telephone at all reasonable times, and no less than three (3) times a week, with the Mother to nominate the three (3) days. The times are to occur to fit with the Child’s activities and the Father’s work hours.
The Mother and Father are to each enrol without delay at Relationships Australia in the Post Orders Parenting Program and each is to file a certificate of completion within one year of the date of these Orders.
The Independent Children’s Lawyer is discharged.
All outstanding applications are removed from the pending cases list.
NOTATION:
A.The Court notes that Ms C has indicated to the Court that she will also undertake the Post Orders Parenting Program.
IT IS NOTED that publication of this judgment under the pseudonym Durrand & Dyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
MLC 11613 of 2012
| MS DURRAND |
Applicant
And
| MR DYER |
Respondent
REASONS FOR JUDGMENT
The parties in this matter are unable to agree about the living arrangements of their fourth child Z born on (omitted) 2009 (“the child”) aged five years old at the time of this trial.
The applicant mother, Ms Durrand (“the mother”) seeks orders that the child live with her in Melbourne and spend holiday time with the respondent father, Mr Dyer (“the father”).
The father seeks orders that Z reside primarily with him in (omitted) and spend holiday time with the mother.
The mother was born on (omitted) 1977 and is 37 years old and the father was born on (omitted) 1977 and is also 37 years old. The parties then aged about 19 or 20, commenced cohabitation by the end of 1996 or around 1997 and they married on (omitted) 2004 by which time they had been together for about eight years. The marriage ended in March 2008, which is now seven years ago. They did, however, continue an association and relationship after separation.
In total there are four children of the relationship. The first children were twins, W and X born on (omitted) 1998 (“the twins”) and they are currently 17 years of age. The parties’ third child, Y (also known as Y), was born on (omitted) 1999 and he is currently 15 and a half years old.
The nature of the parties’ relationship appears to have been an on-again off-again relationship. Having separated four years after they married, the parties maintained a relationship of sorts and in this period they conceived their fourth child, Z.
Each of the mother and father are Indigenous Australians and each is rightly proud of their heritage. The mother reported her cultural heritage was both Aboriginal and Torres Strait Islander. She said her connection to her Aboriginal cultural heritage was through her maternal great grandfather with links to (omitted). As noted in the Family Report, the mother noted her Aboriginal clan group was “(omitted)” and her Torres Strait Islander cultural heritage was from both her mother and father’s family links to (omitted) and (omitted).
The father reported that he too had both Aboriginal and Torres Strait Islander cultural heritage. He said he is part of the “(omitted) nation or tribe” of (omitted) with links to the (omitted) and (omitted) areas from his father’s side, and (omitted) and (omitted) from his mother’s side. He explained that his Torres Strait Islander cultural heritage was from his father’s side with links to (omitted). The father explained also that he did not grow up with his Torres Strait Islander side and that the responsibility for teaching the children about Torres Strait Islander events and traditions is generally undertaken by the mother’s family. I note that in the preparation of the Family Report that the parties had, through an Order of the Court, the assistance and presence of the Court’s Indigenous Family Liaison Officer, Ms J, based in (omitted).
Each of the mother and father have been actively involved in living and promoting their Indigenous heritage, including their joint active involvement in native title land claims which have been successfully pursued. The mother and the father fought for their family’s country which was handed back to their people in 2009. As a result of the successful native title land claim they pursued with others, traditional lands were returned to the (omitted) people. Subsequently the mother and father played their part in establishing the commencement of a community on those traditional lands, namely the small community established at (omitted). The father has continued his involvement in returning to the country in a real and physical way, living on the traditional lands and learning and absorbing himself in the culture of his ancestors. I understood the land to be in the vicinity of the (omitted), (omitted) and (omitted).
The mother was a trustee of the (omitted) Land Trust at the time the first Family Report was prepared in December 2013. Each of the mother and father have explained to the Court that individuals from this region were part of the Stolen Generation and that the Indigenous women have subsequently played an important role, including leadership, because of the impact that this had on their peoples, their roles and their identity. The mother explained to the Report Writer, because their ancestors were part of the Stolen Generation, both she and the father had had to seek answers with respect to their Aboriginal culture. The mother and father have walked in both worlds. They have not grown up on their ancestral lands and it seems initially they were not told a lot about their culture and the information that they could find out was from the “mob living on the land” as the mother described it. The mother explained that “our families were forcibly removed from their country and put into (omitted)”.
Each of the mother and father have indicated that they are very connected to their country and to their respective families. Each of the parties has explained they are respectful of their Elders, their culture and, as I have said, each of them are proud Indigenous parents. They have each taken on leadership roles. In my view, it is clear that each of them are model custodians of their respective cultures.
The mother, apart from being involved in finding out about her culture and heritage and helping to pursue the native title issues and the reclaiming of traditional land, is studying at university. The mother was accepted into a (course omitted) degree in late 2008 at the University of (omitted). She is currently also an (occupation omitted) at the University of (omitted) which involves being responsible for engaging with and supporting both Indigenous and non-Indigenous students. The mother was the first female Indigenous union representative at the University.
The father has spent significant time on country and is currently working as a facilitator with “(omitted) ” link. His position currently is located in (omitted) (about an hour from (omitted)). The father is involved in supporting individuals recovering from severe and persistent mental illness. Prior to that the father was an (occupation omitted) with the (employer omitted), a position he held for two and a half years. At that time he worked closely with key traditional owners from (omitted) communities to repatriate Aboriginal traditional governance. In his role he helped determine who speaks for particular geographical areas within the landscapes and to deal with conflict resolution. The work that he carried out was used as a case study by the Human Rights Commission in their native title report 2012 to show an example of good governance. The (omitted) Groups were commended by the Queensland premier and were awarded a reconciliation award in 2012. Prior to his position as an (occupation omitted), the father held positions with (employers omitted). His positions at that stage were mainly in the capacity of (omitted) and (omitted). He also established and ran his own (business omitted) company for three years when the parties were together.
During their relationship, the parties, who had originally lived together in (omitted) in 1996, and then in various locations including (omitted), (omitted), and then back to (omitted), moved to Melbourne in 2008 and lived in (omitted) because of the nature of the father’s business he owned at the time. It seems in late 2008 they then returned to Far North Queensland and moved up to (omitted) to be on homelands. Around January 2009, the parties enrolled their children at (omitted) State School.
Around this same time, the mother moved to Melbourne to live on Campus at (omitted) College having been accepted to attend (omitted) University. The father says that when the mother left to attend University, that for 2009 the children remained in his care and the mother visited four times during the year for one to two weeks at a time. The parties finally separated in April 2009. Sometime during March and April 2009 the parties conceived their fourth child Z during the mother’s return visits to (omitted). Post separation, the mother says that she attended University whilst she was pregnant with Z. Z was born on (omitted) 2009 in (omitted). The father says he and all of the children travelled down to (omitted) from (omitted) to be with the mother and their new baby, Z.
The mother returned to Melbourne to continue her studies at the commencement of the academic year in 2010. It seems that for some weeks Z stayed with the father, however, it was difficult for the father, who was working full time, to care for Y and Z. The mother’s sister was asked to care for Z, however, this was not an arrangement that could be facilitated by the mother’s sister as Z was only weeks old. The maternal grandmother assisted the parties by collecting Z when they both needed her help. The father asserts that this was to be a short term arrangement. Z was taken into the love and care of his maternal grandmother, the mother also arranged for Y to also go to his maternal grandmother’s care. At this time the father says he was travelling a lot with his work, but that again, he did not intend for Y to be with the maternal grandmother in the long term.
The mother reports that the children Y and Z stayed with the maternal grandmother for approximately 12 months in 2009/10 so that she could pursue her university studies, being a (qualifications omitted). In January 2011 Y was awarded a (omitted) scholarship to attend boarding school at (omitted) School. Y did very well academically and won awards for his (omitted) and (omitted). The mother proposed that Y then move to Brisbane so he could be close to the twins.
The father at the time was living in (omitted) in Far North Queensland due to his work. The father did not wish for Y to go to boarding school after (omitted) School, and instead requested that he attend (omitted) School in (omitted), which was closer to the father and his traditional culture. The father also proposed that the twins be moved to (omitted) boarding school, however this was not agreed to by the mother. The mother agreed with the father’s request to have Y attend (omitted) School so that Y could spend more time with the father and to allow Y to connect with his culture through his father. The schooling of Y and his living arrangements has been a cause of ongoing dispute between the parties.
The mother says she tried to contact the father but could not get a hold of him in 2012 and, in particular, at the end of the first term there appeared to be no one on-the-spot to collect Y. The mother ended up having to call her brother, Mr B, who went to collect Y and deposited Y at the mother’s sister’s home, being with Ms M (Ms M known as “Ms M”).
Ms M has a 15 year old son, J, who went to school at (omitted) State School in (omitted). J and Y are quite close in age and have always enjoyed each other’s company. At that time it was suggested that Y would live with Ms M and finish the school year at (omitted) and live with Ms M. Y then lived with Ms M and J up until December 2012.
There was some tentative proposal or agreement that Y was going to live with his mother at the end of that year and acting on a belief that this had been agreed, the mother booked a flight for Y from (omitted) Queensland to Melbourne on 24 December. The mother also tentatively made arrangements for Y to attend school in (omitted). Ultimately, Y did not go to Melbourne at that time. He returned to live with his father and he continued to attend at (omitted) State School. Y went with the father for a period of living on their traditional lands for the 8 or 9 months and was home schooled during this period by the father and/or Ms C. The children that went with the father and Ms C, who does not claim to be an Indigenous Australian, to the homelands were Y, Z and Ms C’s two children. When the father relocated to his traditional home lands in (omitted) and took Z with him, it seems at the time Z was on holidays with the father. There was a dispute between the parties as to whether the mother had agreed for this to occur. The mother says the father refused to return Z to her. The mother filed a recovery order seeking the return of Z and Y in 2013. Judge McGuire in Melbourne made orders on 20 February 2013 that Z was to live with the mother in Melbourne and Y was to live with the father in (omitted).
Ms C was also ordered by the Federal Circuit Court in Cairns to return her two children to (omitted) at the request of their father. Each of the father and Ms C then returned to live in (omitted) and Y was then re-enrolled to complete the rest of his year 9 studies at (omitted) State School and then his year 10 studies at (omitted) High School.
Ultimately the mother sought for Y to attend school back in Melbourne. The father disagreed. There was dispute as to whether or not the father had agreed that Y could go to Melbourne and live with his mother and Z. In January 2015 the mother failed to return Y to (omitted) stating that Y was expressing strong views he wished to remain in Melbourne living with her and Z. The Father sought a recovery order on 3 February 2015 for the return of Y who was then 15.
At the time of trial the father permanently resides with his partner, Ms C. Ms C was born on (omitted) 1981. The father has lived in (omitted) with Ms C since about March 2012. Ms C has two children from a previous relationship, A, aged nine and B aged six. On (omitted) 2014 the father and Ms C had their own son, C. At the time of trial the father and Ms C were expecting the birth of their second child which was imminent.
At the time of trial the parties’ son Y had been attending (omitted) High School in (omitted) since the father and Ms C had returned to live in the (omitted) area in July 2013.
After the discussions the parties had in November 2014 at the maternal grandmother’s home and the (omitted) at the coffee shop, the mother walked away with the view that they ought to try and improve their communication and resolve this and that she would do as the father had suggested, that is, discontinue her application. The father denied that he told her to discontinue the application. In any event, the mother did file a notice of discontinuance very late in the proceedings after the matter had been set down for trial. That was filed on 27 November 2014 after they had their meeting.
I subsequently granted leave to the mother to withdraw that notice of discontinuance as it was apparent during a mention of the matter prior to the trial, and noting the mother had discontinued, that she still sought orders for Z to live with her. She said that her notice of discontinuance was filed as part of the father’s agreement with her that she would file that notice of discontinuance, and that the father also requested her to contact Child Support and do what she could about having arrears of about $13,000 discharged and assist in getting a divorce application happening for the parties.
This matter was listed for trial in February 2015. Prior to the trial on 3 February 2015, an Application in a Case was filed by the father to have a recovery order issue for the return of Y to (omitted). When that application came on before me, the parties were cooperative in reaching agreement that, given the trial was only days away and given that Y had allegedly expressed some very firm views about where he wished to live, they agreed with the Court that an addendum to the Family Report ought to be prepared and that, at the very least, for that purpose Y ought to return to (omitted). I also ordered that Y remain living with the father in (omitted) until the trial and that he return attending at the (omitted) State School.
As agreed, Y did return to (omitted) and the Family Report was prepared. The parents were given the opportunity at the commencement of the trial, noting that Y was then over 15, to have some discussions given the very strong view that Y expressed namely, that he dearly wished to live with his mother in Melbourne. Y expressed strong views also that he loved both of his parents, but that he wanted to live in Melbourne, attend college and university in Melbourne, play soccer in Melbourne and he looked forward to spending more time with Z in Melbourne.
To the credit of the parties, despite their previous disagreement about the future of Y’s living arrangements, the father agreed then that Y ought to be given the opportunity to live with his mother in Melbourne. An order was made accordingly and Y returned to live with the mother and Z in Melbourne.
At the time of trial, the twins (known as W and X) continued to reside at boarding school at (omitted) in Brisbane where they have been for some years. Each of the parties wish for this to continue. They will be completing year 12 this year.
Ms C’s children A and B, attend (omitted) College in (omitted). A is in grade 5 and B is in grade 1.
At the time of trial Z continues to live with his mother in Melbourne and is to start attending his formal schooling in prep school. The mother has made arrangements for him to attend primary school at (omitted) Primary School in Melbourne.
The mother has not re-partnered since the parties’ separation. The mother has close family members in (omitted), including her mother and sister, Ms M, and Ms M’s husband and their son J (the mother’s nephew) who has spent many years growing up with Y. As can be seen, each of the children in this family setting have had arrangements made in terms of where they have been living and attending school.
The mother has completed four and half years of her university studies and intends to conclude her studies, all going well, by the end of 2016. The mother’s long term plan is to return to the (omitted) area to “give back and strengthen her community”. The mother informed the Family Report Writer that she hoped to work in the (omitted).
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).”
Since changes to the legislation were made in June 2012, the Court is required to give greater weight to the second of those considerations.
When deciding what parenting Orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
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 (s.61DAA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.
If the presumption applies, and there is an Order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).’
In MRR v GR [2010] HCA 4 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
Witnesses
The Mother
The mother gave evidence and was cross examined. It was very clear that the mother is committed to her own family and her extended family. Although she has not always been the child’s primary carer, she has been a primary carer of Z for most of his life. The mother has tried to juggle her commitments as a mother and her desire to achieve a tertiary education and thus be in a position to work towards her life goal of giving back to her community.
The mother said in her affidavit of 8 February 2013, that her relationship with the father was characterised by a lot of coming and going on the respondent’s part. She said in their relationship it was common for the respondent to come home for a number of days or weeks and then leave again when “we had a fight”. She said when this happened, the children, including Y, would remain with her. The mother says “From birth I have been the primary carer for all of my children, including Y”.
The mother, like the father, is an excellent role model for her children and family. Whilst pursuing her University studies, the mother has done her utmost to co-ordinate visits between herself and the twins in boarding school, and Y if he was not living with herself or the father. The mother has been resourceful, as has the father, in being able to keep this family of four children, three of them attending different schools in different geographical locations, all in touch with each other. The mother has tried to assist Y with his education from a distance at times, such as with his Shakespeare essay.
The mother in my view is deeply attached to her children. The mother wept when she had recounted to her what Y had to say about each of his parents in the first Family Report. Y said of both his parents that he looked up to each of them and described them as “deadly”. Y described his mother as a really wise, strong woman and he thought it was good she was studying. I agree with Y.
The relationship between the mother and father has, however, been marked in years gone by with aggression and acts of family violence as described by the mother. I have no doubt that this mother and father, as young parents of three children, were under pressure during their relationship. They moved fairly regularly and whilst parenting they were each dedicated to significant issues apart from raising their own children. Whilst those years are in the past, the mother says that she tries to co-operate with the father to prevent conflict, but deep down she is still in fear of him. The mother was asked about the issues of domestic violence referred to in her material and she gave a brief account of some of those incidents. The mother then wept and said “I don’t want to talk about it…he is still a good person”. The Court reminded the mother that the Court had to know the context in which domestic violence occurs. The mother gave her evidence of events without fuss or elaboration. She did not wish to talk about the family violence any more than she had to. She explained some of the incidents occurred in the presence of the children. The mother explained again that she considers the father is a good man and that the days of their hardship and family violence were awful days and that the father may have changed a lot since those days.
The mother was clearly affected by what had happened, but she had no wish to talk badly about the father. I had a strong impression that she held the father in high regard as a person and father despite what had happened in the past.
I consider that the mother was truthful in her accounts of their past life. The mother is an impressive witness and an accurate historian. She gave her evidence thoughtfully and in my view, without exaggeration. I accept that when the children spoke to the parents as explained by the mother, and said they wanted “mum and dad to talk”, the mother genuinely believed that the father had agreed for Y to return to Melbourne and that, in her agreement with the father, she said and did, put in a notice of discontinuance in regard to her application and said that she wanted to “listen to our children”. I note there has been pressure in the past from the father for the mother to withdraw domestic violence applications (which the mother did) and to contact child support and see if they would discharge the father’s child support debt. As I have said, the mother it seems to me is a peacemaker and she has been very willing to make compromises to keep peace in the family and particularly with the father. At times this has been to her own detriment.
I had a strong impression that the mother is well in touch with all of the children and that she has a good understanding of their individual emotional and educational needs. I regard as a mother, is well placed to provide for their daily needs and overall wellbeing and who will always put the children’s interests first.
The Father
The father describes his current position as an (occupation omitted) with (employer omitted), as a position in which he works closely with key traditional owners. He said that “this position requires me to demonstrate trust, honesty and respect.” I had the impression that the father would perform his work very well.
The father has been involved with his children to the best of his ability throughout their lives. The father is deeply committed to his role as a father to his children. The family has moved around and the twins went to boarding school and Y another school. Despite the differences in locations, I had the impression that the father has always worked hard to support the family and that he has done what he could to ensure that the family came together as much as possible.
During the trial the father was at pains to point out to the Court and the mother that some of her global statements included in her affidavit material were inaccurate. He was correct in some respects. Perhaps what the mother did not do sufficiently in her material was to acknowledge the assistance of others in terms of raising the children. The mother’s affidavit of 8 February 2013, did not set out the precise details of who has been caring for the children. This has been a source of frustration for the father.
The father has, it seems for many years, been in work which involved him travelling long distances and being away for periods of time. This is not a criticism, however, whilst the father wishes to highlight that the mother has not always been the primary carer, in my view, the father has also had other important demands on his time, including the obligations which follow on from his employment. At times I accept that the mother could not get a hold of the father to deal with child related issues, both before and after separation, as the father was travelling, often in remote areas. I consider that the father is an excellent father subject to the caveat that he appears to have had a bad temper in the past and that this has resulted in the mother remaining cautious around him.
In November 2012, the father was invited by his brother to live on traditional homelands as referred to elsewhere in this judgment. At that time the father took Z with him. He said that they lived in what is referred to as a ranger base, which is a transportable home (sometimes known as a donga) offering all modern amenities, solar electricity, gas cooking, television, internet, fans and telephone lines. There were two offices and a school room already established. The father recently had a three-roomed transportable donga relocated to enable an additional room for a private office, the children to have another room for schooling and a room to set up for “my twin girls when they come home”.
At the start of December 2012, the father’s partner, Ms C, and her two girls, A 8, and B also aged four, moved to live with him on traditional homelands. The decision of the father and his partner, Ms C, to relocate with their respective children to (omitted) (which is approximately nine hours from (omitted) by road), resulted in each of the father and Ms C being ordered, pursuant to applications lodged in the Federal Circuit Court by their respective former partners, to return the children that they had in their care to the other parent. In Ms C’s part, that was to return the children to (omitted), and in the case of the father, he was ordered to return Z to the mother in Melbourne. When the father moved to (omitted), an order was made by Judge McGuire on 20 February 2013 for the child to be returned to the mother.
At that time Z had been living with the mother in Melbourne for 18 months or more. The mother had delivered Z to the father in September for a school holiday expecting him to be returned at the end of the school holiday period. The mother travelled again to (omitted) to collect Z from the father following the making of a recovery order.
In final submissions, the father said he has a five-year plan that involved him returning to live on his traditional homelands in five years’ time.
There has been disagreement between the parties as to what was agreed and what wasn’t agreed. Much time was spent hearing evidence about what was alleged to have been said at a meeting in (omitted) between the mother, father and Y about the prospect of Y returning to live in Melbourne. Disagreement about where the children might live or go to school appears to have been occurring throughout the relationship. It is not surprising therefore that it is still occurring now. This appears to have been a feature of the parties’ communication, as is seen in the history where other agreements have seemingly been reached on one party’s view of events, with the other saying that there was no firm agreement.
I had a strong impression that overall the father has much to offer all of his children. Subject to my remarks in this judgment, he is an excellent role model for the children and he, like the mother, is committed to ensuring that the children share their rich cultural heritage and spend as much time as possible with each other and the other parent. I accept that he wants the best for the children, albeit he and the mother have not always agreed what this is.
These parties met when they were very young and each of them has matured and, it seems to me, each has mellowed over the years. Having said that, as between the mother and father, I have observed that the father has been at times overbearing with the mother, even recently in telling the mother, “I will see you in Court” and “I will win” and other similar remarks. These sorts of remarks are at odds with the assistance that the father has offered the mother at times such as helping the mother getting a loan in Melbourne. I have no doubt that the comments were said to intimidate the mother. It is regretful that in his dynamic with the mother, the father falls back on this unacceptable style of communication with the mother.
I would caution the father against such behaviour in the future as it is behaviour that provides poor role modelling for the children and the mother is entitled, like everyone else, to enjoy the father’s respect. I should add that the father apologised for his behaviour in Court and I am confident that the father now realises his error of judgment in making such remarks.
The father is respectful of the mother’s capacity to provide guidance and support for the children in regards to their education. In relation to Y and his education the father said, “I speak from my heart when I said Y will benefit from his mother’s knowledge around the educational experience.” He said that he was looking forward to Y having every opportunity to grow and prosper in Melbourne and that Y is smart and has every opportunity to do better. The father wished that he himself had done a lot better. I consider his remarks were genuine.
I was impressed with the father’s candid admissions that he did not deny what the mother said about their history of family violence. The father said that at the time he was heavily intoxicated and that “I am not going to make excuses…it is something I am very remorseful about.” The father did not deny anything the mother said about their past and said she had a better recollection than he did. He said he would not try and defend what happened and again, that he was remorseful for what he had done. The father said he and the mother have been together for a long time and they had a lot of history. He said:
“In the area I work in now, having lived experience around these issues, it is sad that I have done this. I am only hoping that I can advise others…that I can help others. Everyone walks a path…there is a lot of what I experienced that I can advise other males that deal with this sort of stuff.”
The father explained “that I am hoping it’s been for a purpose.”
As can be seen, the father’s admissions are illustrative of his maturing and acknowledging the elements that contributed to their hard times. The father has changed his life. He was an impressive witness.
The father said in his cross examination that the “Mother is a great mother…we have all been off track with different things, we get over taken with other agendas…she is a good mother.” I am satisfied that the father’s remarks are genuine.
Ms C, Father’s partner
Ms C gave evidence and was cross examined. She is a very supportive partner for the father and as I have said elsewhere, she is expecting their second child. Ms C met the father at University when she started studying (omitted) studies and (omitted) in 2012. Ms C has always been the primary carer of her children. Whilst she says that she and the children’s father “have never had any dispute about their care” I accept that such a statement of course would be save and except for Ms C moving to (omitted) with the children and Mr Dyer and a Recovery Order issuing for the return of the children.
As I have said elsewhere, Ms C does not claim to be of Indigenous heritage. Ms C has impressive qualifications in terms of her work experience in the (omitted) sector going back to 1996. She is currently studying a (qualifications omitted) Studies. She says she will qualify to be a (occupation omitted) as well as further qualifying to work in the areas of (omitted).
The household of Ms C and the father is a very busy household. Their respective work schedules and the balancing of the children’s care is quite demanding. Ms C works as a (occupation omitted) at a (employer omitted) in (omitted) from 8:00 am till 5:00 pm. The father works at (omitted), a distance of 33 minutes on a good day from (omitted) to (omitted). The father is usually home at 5:30 pm however, there are times when he is home later than that. They appear to work well as partners, though there are reports of raised voices and arguing at times. Living in the home are the two daughters of Ms C, A and B and C, the son of the father aged one, and a new baby is imminent. Prior to his departure to Melbourne, Y lived with A, B and C. When Z lives there too, there have been five children in the household.
As expected, Ms C supported the position of the father in relation to difficulties with the mother. There is no doubt that the mother has sent offensive emails, text and phone messages to the father warning off Ms C from becoming involved in the parent’s parenting of their children and in particular from including herself as a guardian or parent in the school records and in educational reports for Y. After the father and mother gave their evidence, which was quite painful at times for each of them, each of them appeared to want to put the past behind them. When Ms C gave her evidence, I was initially taken aback by the strength of some of Ms C’s criticisms of the mother. I understand that she was however, referred to in very derogatory terms by the mother when the mother was communicating with the father. It is to be hoped that once this litigation is concluded, that any animosity that exists between Ms C and the mother is put aside. I had a strong impression that this was the intention of the father and I was impressed with Ms C’s willingness to participate in a Focus on Kids course to help all of the adults develop mutual respect for each other.
All of the grown up children of the father and mother wish for their parents to end their disputes. This position needs to be respected by all the adults. I also note for the record that the mother was glowing in terms of her descriptions of the involvement of the children with Ms C. She said that Ms C listened to her issues and tried to allay her of her concerns. Ms C has it seems tried to keep the peace in her role as step mother. I concluded that Ms C did understand that it was very anxiety producing for the mother and her role in the family, to find that she was not included on the Education Plan for Y and that her name is not even mentioned as a parent on the enrolment form for Y.
I accept that the father has a warm relationship with each of A and B.
It is a credit to Ms C that the children of the parties in this matter also speak highly of their relationship with her.
Dr S, Family Report Writer
Dr S’s initial report dated 9 December 2013 is comprehensive and of significant assistance to the Court. So too is her second report dated 4 December 2014. A further updating report was prepared dated 6 February 2015 regarding Y expressing strong views about living with his mother, the alleged agreement the parties had made and then the dispute about what was agreed.
Observations of the whole family were comprehensively covered in each of the first two reports of Dr S. The twins were described as confident, mature and insightful young women who make a number of decisions regarding their day to day living circumstances by virtue of their being boarders. Dr S notes they are entrusted with responsibilities by both parties and cited chaperoning Z on flights as an example. Dr S noted that;
“The twins are investing their talents and energy in activities which are a credit to both parents and which give back to their community (e.g. QTC, leadership camp). If the twins are to be included in any Court Orders the Family Report Writer would support them having the flexibility to speak to the parent with whom they are to spend time about whether they are able to attend over the school holiday period in question, and if not, then what time, if any can be arranged?”
X who was 16 at the time of the interview in December 2014, and soon to be 17 on her birthday the following (omitted) 2015, had plans to complete her boarding school and then hopefully to attend University in (omitted) as that is where her mother attended, or alternatively University (omitted) in Brisbane. X was very aware of the ongoing disagreements between her parents, she wanted to keep the holiday arrangements fair, and she expressed frustration at being the messenger for her parents. X was also exasperated with the Court process noting if the parents had agreed we wouldn’t be here for a second time. X wishes her parents would communicate about some of her additional activities such as proposed music tour and overseas travel. I had the impression that she was anxious about the willingness of the parents to agree about such issues. X was quite protective of Y, saying that its time the parents sorted things out as it was “not fair for Y.”
When W was interviewed in the first report she stated that she got on with both her parents and that as the first born twin, she felt like she had to “hold everyone together because she was the eldest.” Her maturity was seen in her observations of the other siblings. She spoke about Y’s strong character and X’s optimism (e.g. believing in the impossible). She loved Z dearly and enjoyed playing with him. She wished to embrace the arrival of her new baby brother (C). X’s disappointment with her parents continuing to have disputes through the Court was also high on the agenda of W when she was interviewed in the first Family Report. Her message to her parents was expressly stated as “enough enough, just stop it.”
Y was noted as a polite, co-operative and articulate young man. As I have said, fortunately, the parties have agreed that this young man turning 16 in June 2015, who was able to clearly articulate his love and affection for both parents, wants to be actively involved in decision-making concerning his future, which Dr S noted is entirely healthy and appropriate and which should be supported. Dr S noted that:
“Adolescence is a period of rapid growth and development during which young people strive to individuate from their parents and develop a sense of autonomy. It is also a period of time during which adolescents benefit from a sense of relatedness and connectedness to their parents so they feel supported and loved as they increase their independence.”
Dr S also noted Y’s desire to spend additional time with his mother and younger brother Z was a theme which Y consistently expressed throughout his Family Report interview. The mother confirmed that Z looks up to Y, copying jobs his elder brother had carried out and Z had been upset the night that Y left to return to (omitted), crying and asking when he was coming back. In the first Family Report Y noted that Z reminded him of himself.
The obvious strong bond that all the siblings enjoyed is commented upon. All of the older children expressed a view that they spend as much time together as possible on their holidays and that they have longer with each parent during the holidays so that they did not have to pack up mid-way during the holiday periods.
The cultural issues were canvassed at length by Dr S who had with her, the Court's Indigenous Liaison Officer Ms J. Each of the parties were invited to put forward names of an Elder they wished to nominate to support their own belief about their culture and neither party took up this invitation. I rely upon but do not repeat the lengthy discussion in the report of Dr S regarding cultural issues. The children’s recollection of their past engagement in cultural activities and the very sound understanding and education they have regarding their cultural heritage is evident from reading the Family Reports. W knew each of her totems on both her mother’s side and father’s side and spoke about the importance of her being “one with the land.” She described it being a stomping ground where no one could tell you what to do. W said when they were younger they used to do Torres Strait Island dancing with her grandfather and when they were older they learnt about their Aboriginal side.
The observations noted in the second Family Report of the mother, X, Y, Z and cousin J includes the observation that Z was observed to kiss and hug his mother and Y, the mother told Z she missed him and the child reiterated this sentiment and said he missed their kisses.
In the report dated 13 February 2015 of Dr S, it was observed that Y spoke very affectionately about his father. Y said that not all boys would have a relationship with their father like he does and that his father “put lots of effort in to it. Everything is deadly.” It was very clear from Dr S’s report that Y was in somewhat of a bind in that he loved each of his parents dearly, but he wished to have the opportunity to live in Melbourne with his mother given he had not lived with her since he was a tiny boy.
Orders have been made for Y to live with the mother in Melbourne and it is intended that Y will spend the holiday times on an alternating basis with the father and have the opportunity to be absorbed in his culture with his father, spending time on the homelands when possible during his return back to (omitted).
Dr S stated in her cross examination that at the outset, these parents should be proud of their children, their achievements and their knowledge of their cultural heritage. Dr S noted that in some respects the elder children of the parties were more mature and considered than the parents when it came to identifying the ongoing conflict between the parents. Dr S said that their elder children were role models for other children. She noted that in this matter, it is not about who loves Z more or can care for him more.
In terms of weighing up the two proposals, Dr S said that there were risks for Z both ways in terms of whether he lived in (omitted) with the father or in Melbourne with the mother. Whilst not discounting that Z has spent holidays with the father, even for a couple of months this is different from a long term arrangement where Z is not living with his mother. Dr S was troubled that Z now 5, having lived with his mother since he was about one year old, in moving to live full time with the father would likely not be able to understand why was no longer living with his much loved mother. Dr S said that particularly in the long term, this confusion about why he was moved from his long term living arrangement, could disrupt his relationship with his mother. This was particularly so when there is no obvious reason why he would not be living with the mother.
An advantage of the mother’s proposal was that Y would be living in Melbourne and that Y and Z are very affectionate, Z looks up to Y as a big brother and that they have never had the chance to live together. Y made it clear throughout his discussions with Dr S that he would very much love to spend more time with Z and have the chance to live with him. Y saw this time ahead for the next three or four years as the last chance he would have to do so.
If the Court ordered that he live with the mother in Melbourne, the single biggest issue identified by Dr S was the risk arising from Z not being sent up to (omitted) pursuant to Orders. Whilst Dr S knew that there were limitations on what was possible in terms of Z coming and going from (omitted) to Melbourne given the tight financial circumstances of the parties, Dr S said that it was imperative that that each party put aside funds to make sure that there were no failures in sending Z to (omitted). Failure by the mother to send Z to (omitted) would prevent Z from being able to experience time on country with his father and of course spend generally time with his much loved father.
Dr S said that Z had a good relationship with his both his step siblings and gravitates to B as they are the same age. Overall, Dr S said Z’s relationships with C and his step siblings are emerging relationships given that these children are all infants. He has a good relationship with them all, they cuddle him and show him affection. She noted that Z was very much used to being around in both households.
Dr S urged the parties to learn to deal with each other respectfully, she said there is no place for vulgar language or swearing in their communication making reference to the emails sent by the mother to the father and that all the parties had to adjust to the extended family that now existed and the roles that each of the adults played.
I have found all of the reports of Dr S to be most helpful and generally I accept her evidence.
S.60CC(3) The additional considerations are:
S.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
Z is too young to express a view at the age of five as to his permanent living arrangements. It is clear that he loves each party and that he is actively involved with all of his siblings. A feature of this matter has been that all of the grown-up children have expressed a view that they want the mother and father to stop arguing and to resolve their matters. The Report Writer gave evidence that the communication between the parents was sadly lacking and that each of the parents needed to know that their negative and conflictual communication is having a significant ripple effect on their children. Dr S said that at times the children have shown more wisdom about how the matter should proceed, in terms of them wanting for the parties to just come to some agreements and stop their conflict through the court system.
The twins aged 16 have expressed a view to remain at their boarding school and as I have said, to spend as much time as possible with their other siblings on the holidays.
Y said to the Report Writer that he knows he did not do well at school at (omitted) in 2014. He said he would be “pissed off” and would try to go back to Melbourne in the event he was ordered to stay in (omitted). It was contemplated by Dr S that he may refuse to live in (omitted) after spending time with his mother in Melbourne given his very strong desire to stay there in the event he was forced to return to (omitted).
In the report, the father acknowledged that since Y had returned to (omitted) just prior to the trial he had told him very clearly he wants to live in Melbourne because he loves his mother. The father said he would support Y if this is what he wanted to do, but he wanted the decision to be made “holistically” given his concerns.
Y presented as a polite and cooperative young man who was able to articulate his current thoughts with respect to his living arrangements. He explained he was “a bit over (omitted)” and he wanted to spend time with his mother because he had not lived with her for “a while.”
Y did not have any significant issues with his father’s household which had prompted his decision to want to live in Melbourne, only a desire to spend more time with his mother. He noted, however, it could be annoying within his father’s household as he was the only teenager and he said that Ms C was pregnant again. Y also spoke about his father and Ms C helping him with his study. However, he reported they did not finish work until late and there were other children in the household. He also made reference of the meeting at the (omitted) prior to him going to Melbourne in January 2015. He said he told his parents he wanted to go to Melbourne and he believed his father was alright with it.
Y noted that his father indicated he loved him and he would be happy with whatever decision he made. Y made up his mind about going to Melbourne before leaving his siblings in January 2015 and he also informed his friends and school friends he was going. Y did not reaffirm with his father when he said farewell to head off to Melbourne in January 2015 that he wished to stay there, as Y held a concern that his father would not put him on the plane. When Y telephoned his father from Melbourne and told him he wanted to stay there, Y said his father told him he would not do that and the Court would not allow it. Y responded to the father by saying “stuff the Court”. Y’s very firm views were that Y believes both of his parents want him to live with them and noted that each of them had spoken to him about his future prospects. The father had spoken to him about a (omitted) apprenticeship with Ms C’s brother-in-law and his mother had talked about the possibility of university study. When asked about how this made him feel, Y said, “I don’t really care what they want - I just care what I want - I do care, but I have to make decisions.” Irrespective of this, Y expressed a desire to convey to the Judge that he loves both of his parents.
It is abundantly clear that these parents are much loved by all of their children.
As I have said elsewhere, Y very much requested a strong view to be able to live with his mother and for the opportunity to also spend as much time as possible, before it was too late, to experience living with young Z.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
Each of the children have excellent relationships with the parents as seen in the Family Report. Their descriptions of the parents as being “deadly” and great role models was most touching for the parents to read. X reported she had an excellent relationship with each parent and was frustrated though that she ended up being “the messenger” used to pass information from one parent to the other. She stated, “they should communicate – not me”. Given her very busy scholastic commitments and her desire to stay out of any disputes, it ill behoves either parent to expect this young adult to have to pass messages on to the other. Both of the twins, now aged 17, are reported to have told their parents that they are weighed down “by the ongoing feuding between them” and their involvement in the Court processes.
Whilst Y expressed much love for each parent, he too noted that the parents talked with “tone” to each other and it was not peace – it was just “pretending to be peace”. I had a strong impression that the children of the parties were very desirous of spending as much time together as possible. The parents have agreed that this should occur. It is to be hoped that the voices of their children will be an impetus for these otherwise good parents, to take steps now to change the way they communicate with each for the sake of their children, if nothing else.
The children of Ms C were also interviewed for the Family Report. Her daughter A was interviewed for the purposes of the Family Report and she noted that her relationship with “Mr Dyer” (as the father is known) was good and that C was “cute”. She expressed love and affection towards C. A expressed the view that both of her own parents were happy for her to see the other parent and they are “still friends”. B was also interviewed for the Family Report, and she noted that her own parents are still friends.
B perceived that her mother and Mr Dyer, at times, were arguing or having disagreements. The Family Report records that the older children reported “raised voices” between Ms C and the father. I endorse the comments of the Family Report writer Dr S that “it is important that the children feel they can resolve conflict without what they perceive as shouting so they incorporate these skills into their own repertoire for settling disputes.”
Each of the father and Ms C have had the stress of parenting four children of differing ages, from a teenager through to a baby from a blended family. Added to this each has a heavy work load, with Ms C being the (occupation omitted) of a (omitted) at (omitted) and planning on taking the second baby (along with C) to the (employer omitted) with her once that child is born. Ms C works a long week and it involves travel. So too, the father works a long day with travel at the beginning and end. The father, whilst helping to support his blended family, also has financial pressures associated in keeping his own children flying around from school to home and paying the costs over and above boarding school not covered by the scholarship. I consider that there are day-to-day stresses in this household and that each of the father and Ms C has significant responsibilities. It is with some disquiet that the Court notes the children’s references to raised voices and disagreements.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
To participate in making decisions about major, long term issues in relation to the child; and
To spend time with the child; and
(iii) To communicate with the child.
I am satisfied that each of the parties have taken every opportunity open to them to be involved in major decisions about the children, spend time with and communicate with the children.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
I am satisfied that each of the parties have attempted to fulfil their parental obligations in providing support to maintain all of these children.
S.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 either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In terms of the impact of change following on from either of the proposals, the mother’s proposal provides for Z to remain living with her in Melbourne. His schooling has been organised. He has had time at University day care and now attends prep at (omitted) Primary School. He has been living with his mother since the age of about 14 or 15 months. He has a strong and primary attachment to her. He loves his father and his mother, and each of the mother and father are good parents and they love Z.
Z is very comfortable and safe in his father’s care. As referred to elsewhere in this judgment, Dr S gave evidence that this does not mean, however, that he does not miss his mother when he is with his father. Dr S gave evidence that the likely effect on Z of being removed from the primary care of his mother permanently and the adverse results which could flow on from this in terms of his ongoing relationship with his mother. Dr S agreed that if Z lived with the mother, Z would be able to keep a meaningful relationship with his father with whom he has a strong bond which would be maintained by the ongoing holiday time as proposed by the mother provided it actually happened.
Dr S noted that she had trouble ascertaining precisely how much time would be spent going on country with the father if Z lived with him, but noted that whilst it could possibly happen more spontaneously if Z lived with the father, the practical reality was however, that now Z has started school, his opportunities to go on country will be limited to holidays. The other commitments of the father of a new born, and a one year old, along with Ms C’s older children are also noted. Ideally, if finances were no impediment, Z would come and go between the two households with much more frequency, however, the practical issues of cost and distance preclude this.
If Z lives with the father, another impact of such a change will be that Z will change from the fairly quiet household of himself and the mother in Melbourne in what looks to be a close family circle and routine, and moves into a household in Far North Queensland with the father and his new partner Ms C, her two children A and B, their new son C, and a new baby arriving any day. He will be one of five children. I am aware of the evidence of Dr S that he is used to being in both households. I accept also that he has an excellent relationship with B and that his step-siblings assist him from time to time. This can be seen in the Family Report which notes B crying at the time the session concluded as she didn’t want to separate from Z.
As can be seen in the dynamic between all of the children during the Family Report interviews, in a household of step-siblings, half-siblings and step-parents there are many competing demands for each child to receive attention. There is also considerable energy expended in diffusing tiffs and disputes between all of these children which are just part of the dynamic of multiple children in one household.
An advantage for Z if he lives in Melbourne is that is that he has a strong relationship with his full brother Y, and they have great affection for each other. Y is an excellent role model for Z and Y has a strong desire to spend more time with his younger brother. I am not surprised that this is so given the fairly fragmented arrangements that have been in place for these children which have come about as a result of their priority in education requiring them to live elsewhere and separately. This is particularly so for Y. All of the children, the twins now young adults aged 17 and Y at 15, have expressed a desire to spend all of their holidays together and to have the longest time possible with one or other parent so they do not have to split up their holidays. This is a separated family with children who desperately want to stay together as a family. The parents agree that this should occur.
The mother describes herself and Z living in duplex in a quiet family neighbourhood. Her home is located on the same street as Z’s school, being only a 5 minute walk. Z has his own bed and shares a large room with his mother. Each morning the mother and Z walk to class and each afternoon the mother collects him. Z has friends at prep no doubt friends from (omitted) Day Care where he attended for 3.5 years.
Also, Z moving from living most of his life in Victoria to living in in tropical Far North Queensland is a significant move in terms of distance, climate and environment.
I am satisfied that it is an advantage for Z in the long-term in having the opportunity of living in a household with his older brother Y. The importance of enabling this relationship to occur over the next few years was described by Dr S. Sibling relationships are long lasting relationships and thus very important for children and in this case Z and Y. Sibling relationships often last long after parents have gone. Z’s relationships with both his half-siblings and step-siblings are emerging relationships and there are many years ahead for those to be consolidated. This is however, probably the last opportunity for Z to spend any significant time living in the same household as his much-loved older brother. I also accept that Z would miss his mother in the proposal of the father. This is to make no criticism of Ms C, who would then become the mother figure for most of the year for Z in the event that Z was to live with the father. However, Z’s relationship with his own mother is loving and strong and their household and family circle in Melbourne has consisted primarily of just the mother and Z.
Z has of course spent time in the household of the father and Ms C on holidays. I note that even in these periods, the evidence of Ms C is in line with this observation as she too described, “Z and Y have a very close relationship. Z cannot wait for Y to awake in the mornings and quite often is the source of Y’s rising. Z often says “All I want is a brother.’” She noted that the way Z says this is so endearing and cute and often has the effect of “causing Y to instantly forgive him if he has done something to make Y cranky.”
I also note that another significant change that will occur if Z lives with the father will be that his days will be very long. He will be catching a bus with his step-siblings and getting to school at 8:00 am. After school he will be collected by a bus taking him to a day care centre at (omitted). Then he will spend a few hours after school there and be delivered back home in another trip from the day care centre back to the parents’ home by about 6:00 pm. This is a very long day for Z and most of that day, as I said, is at school or with his step-siblings.
Ms C works at a (employer omitted) in (omitted) five days a week and it is proposed that she will take both C and the newborn to work with her to spend time in the nursery. Ms C says that she and C will travel back from (omitted) to (omitted) leaving (omitted) at either 5:00 pm or earlier if she can. Her own two children have to be collected from school somewhere along the way. The father, who works till 5:00 pm, is then to travel back from (omitted) to (omitted) as well, a journey of at least half an hour on a good day or longer if there is congestion.
When Y was interviewed he commented that there is a lot of parenting to be done with the young children in the home and the description provided to me by the father of how it would be for the five children going to their various schools, after school care and back again every day, with each of he and Ms C working, suggests to me that it will be a very busy household. I note also the reference in the Family Report to the reports of the various children including the older children of raised voices in the household of the Father and Ms C. This adds to my concern that simply running a household with five young children (one a baby) is a significant challenge for parents, particularly with two working parents and a blended family. I have referred elsewhere to the financial pressures about which I have had evidence from the mother and father in terms of keeping all of their children at their respective schools and travelling.
In my view adding Z into this mix of a household of living with two step siblings and two baby half siblings and removing his primary attachment figure spending holiday time with the father is quite a different concept from removing the child from the care of his mother with whom he has lived most of his life.
As to the proposal of the mother that Z remain living with her, I note that he is used to living in that stable and secure environment. It will be a home where he will be living with Y and his mother. I am very aware that Dr S has identified that if Z lived in Melbourne, it is critical that he does actually spend the holiday time as planned with the father. In other words, it is essential that the mother ensure that she does sufficient forward planning to ensure that Z travel North as per her current proposed Orders.
S.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
Clearly in this matter, as I have referred to elsewhere, the ongoing issue for the mother and father is the financial pressure of raising their four children, keeping the twins at boarding school, the cost of raising all of the children generally, and the cost of flying the children from (omitted) to Melbourne, or boarding school to Melbourne and then to (omitted). Now that Y is living in Melbourne, there will be airfares from Melbourne to (omitted), instead of (omitted) to Melbourne for him.
I have examined each of the parents’ income and their financial obligations. As neither parent has the ability or desire to move to live in the state where the other parent lives, it is a given in this matter that Z will be travelling back and forth between (omitted) and Melbourne.
The parents are very practical and they are always sharing the costs in terms of ferrying the other children from one home to another, or from boarding school back to Melbourne or (omitted). Each of them is committed to funding Z either way, wherever he lives. The parents have agreed that, as requested by the older children, they spend a whole holiday period with one parent instead of splitting up the holidays and having to pack up mid holidays and move. This change should also be cost effective, as opposed to flying four children to two different locations each holidays.
Economically and in terms of spending quality time with each parent, I accept that with this family and the age of the children, that it is in the children’s best interests to structure the holidays on that basis.
The reality in this matter is that the parents have to pay all the costs associated with schooling over and above what has been provided for in scholarships. This is a significant cost to each of the parties. Each of the parties have also managed to spend as much time as possible with their children and pay airfares for the children to fly from one to the other. Typically they have gone halves. ABSTUDY enables the twins to fly from boarding school to home, that being only one home and that home is nominated as Melbourne.
This means that when the children spend holiday time with their father, the father has to pay the return costs for the twins to come to and from (omitted): a significant cost.
So while there are issues of distance and cost involved in the cost of contact for either parent where ever Z lives, I am satisfied that these parents will share the cost and manage the cost. Obviously with such distance and the cost of travel and the income of the parents and their current financial obligations, arrangements of equal time or significant and substantial time are not in the equation. Dr S observed that in an ideal world, Z would come and go much more frequently, however, neither the mother nor father are planning on moving and this is just not possible. The court notes that despite this not being possible, the past time spent with Z and the father has enabled them to build a strong relationship.
S.60CC(3)(f) The capacity of each of the child’s parents; and 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 mother and father are each excellent parents in their own right. Each has parented whilst coping with the demands of life, be it work or study. The father removed Z from the mother when he took him to (omitted) to live. At that time, I am not satisfied that he appreciated the emotional bonding of this young child with the mother. As Dr S explained, Z’s strong attachment to his mother does not mean that he does not also love his father and love his time with the father.
In a matter with two good parents, I consider that the mother is slightly more in touch and attuned to the emotional needs of the children than the father. The mother was precisely correct in her interpretation of Y’s strong wishes to live with her in Melbourne. I accept her view that Y and Z are strongly bonded and would very much enjoy and thrive from living in the same household indefinitely giving these two brothers the last chance they have to do so as children. I accept that the mother listened to the twins when they implored the parents to cease arguing and that the mother, acting on their request and believing that the father had agreed to allow Y to travel and live in Melbourne, discontinued her application. Whilst the father is a good and loving father and has much to offer the children, I consider that of the two parents, the mother has a more well developed understanding of the children’s emotional wants and needs.
S.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 S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting Order under this Part will have on that right
The children in this matter are all proud young Indigenous children who have a love of their culture, their traditional lands, their parents and each other.
The mother explained to the Court that it is quite unique and rare that both herself and the father are from the same land: The (omitted) Lands and that because of this, their four children have strong (omitted) blood. The father said that the children have a lot of strength in their spiritual connection to their land.
It is difficult to imagine two parents better equipped to ensure that the children each enjoy their culture whether spending time on country with the father, observing their Torres Strait Islander traditions with their mother, or hearing stories and the cultural history and all other aspects of their culture from both parents. Dr S has comprehensively covered the cultural aspects of this matter in her report. I rely upon, but do not repeat, the contents of the Family Report in this regard.
The father contends that it is important for Z to spend time with him on country and that it is not sufficient for Z to spend time on country with him during the weeks of school holidays provided for in the mother’s proposal. The mother disagrees.
The Family Report Writer dealt with this issue at paragraphs 165 onwards. I note the opportunity given to each party to nominate a cultural expert and their respective responses. I note also that the father expressed the importance of him spending time with Z prior to the commencement of formal schooling in order to give him “stuff” back upon on “country” which would facilitate the development of his identity and distinguish his role and responsibility. Some of the father’s beliefs about paternal governance were not accepted by the mother who contested the reliability of the information provided by the father in relation to their Aboriginal cultural practices, and she spoke about the impact that the Stolen Generation had had on their knowledge of their cultural traditions.
Whatever the father believes his cultural traditions are, I consider it significant that neither the mother nor the father grew up on country, yet each of them are utterly connected to and absorbed in their culture, their traditions and each are most proud of their Indigenous cultural heritage. Each is heavily involved in celebrating their cultural activities. Each has been actively involved in securing their Native Title claim and establishing a small community on those traditional lands. Both the mother and father have each immersed their lives, their family life and their work in Aboriginal and Torres Strait Islander culture. They have raised their children accordingly. All of their children share the parent’s love of country and love of their culture.
I note also the reference in the Family Report to Z being raised in his early first year by his maternal grandmother, at a time when the mother was studying and the father was working and travelling and therefore not able to raise young Z. As to the time that the father proposes is necessary, that is non-specific. The father also on a practical level has the demands of one new child C and the arrival of a second newborn child was imminent at the time of a trial. Clearly he will have family obligations in his family life with Ms C which will affect his ability to leave and go on country for weeks on end.
Having regard to all of the evidence in this matter, I am satisfied that if Z lives with father his right to enjoy his culture will be accommodated and similarly, I am satisfied that if Z lives with his mother, and spends time with his father that his right to enjoy his Indigenous heritage will be appropriately accommodated in that time. Z has both Aboriginal and Torres Strait Islander heritage as do each of his parents. The father has acknowledged that he did not grow up in the Torres Strait and that the mother is the best custodian of that culture for the children. The child therefore ought to have exposure to each of those traditions and cultures and I am satisfied that this will occur in the time that the children spend with either parent, on either proposal.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In terms of the attitude towards parenting, each of the parties has shown significant responsibility about being the custodians of their culture and handing that on to their children. Save and except for th4e issue of Family Violence, neither parent complains about the other parent’s parenting. Each of them is able to provide food, shelter and a safe and loving home for the children. Z was born after the parties had separated. At the time of his birth, or shortly thereafter, the mother returned to Melbourne to continue with her studies and asked her sister Ms M to look after Z. This happened for a short period and in that time the father reclaimed Z and kept him in his care for a period of some weeks. The mother says this was for a week; the father says it was for six weeks. Nothing turns on this. The parties agree, however, that Z was then given to the maternal grandmother, who at that stage lived at (omitted), and Z was to be raised by the maternal grandmother. That happened for about a year and the mother and children coming back from boarding school, and Y, would all fly to the maternal grandmother’s home to spend time together.
I accept that, after about 12 or 14 months, the mother returned from Melbourne and wished to take Z back to Melbourne with her. I am satisfied there was some sort of dispute between the mother and her mother at that stage. The mother agrees there was a dispute, but attempts to sheet it home to her mother not wanting her to have a life like the other children had had with the father coming and going and Z moving around. In any event, the mother’s relationship with the father was strong enough for her to contact the father and say, “Come to (omitted) and help us leave.” The father organised for accommodation and flights for the mother and all of the children.
Z has lived with the mother since that time, which is around February 2011, save and except for the period when the father took him to the homelands for four or five months, ultimately ending in a recovery order being made in February 2013.
The mother would say that she has done more, and says that she would fly back to (omitted) or fly to the children’s school and pick them up and take them somewhere – to an event, a concert or sporting event – and then take them back and then fly back again. I accept that she did this. The father has also provided financial support all through the period of separation and he has played his role in doing what he could do to assist with the children. There has been a period when he was the primary carer of the three children and the mother was in Melbourne.
I have a sense that the mother does not expressly acknowledge that others raised Z for over a year and that others have assisted in raising Y. Specifically, the mother does not appear to properly acknowledge that the father has helped in raising those children in a myriad of ways. This is a source of frustration for the father. He has, like the mother, also paid significant financial support to assist the children. This happened recently when the twins travelled to (country omitted) at a cost of almost $3,000.00. Whilst inevitably there has been somewhat of a contest between the parents as to who has been doing the most, my assessment is that each of these parties did everything they could do to support their children. There was a period, when Z lived with the maternal grandmother, that the father did not spend time with Z in that year. As he described it, the dynamics between himself and the maternal grandmother did not permit this. I heard the father’s evidence surrounding his experiences at that time and I accept that he made the decision in an attempt to avoid conflict.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
To the extent that the family violence is relevant to my considerations, I regard it as historic; something that the mother and father both appear to acknowledge happened in their difficult and turbulent days many years ago, when the children were small. The only legacy of that appears to be that at time when the father has dialogue with the mother he can appear intimidating, and this is seen in a text message sent to the mother prior to the trial that “I will win” and another message that by a certain date he will have both children in his care.
The father explained this with an apology, saying he had played a lot of sport and it was a tactic to get into the head of the other side. He stated he did not mean to intimidate the mother. As I have said elsewhere, the dialogue of the father was ill-advised and he knows it and apologised for it. The father, however, is not alone in having inappropriate dialogue with the mother and there has been evidence before the Court of the mother flying off the handle at the father, using derogatory language to the father and using explicit language to the father in her descriptions of Ms C and Ms C’s children.
Each of the mother and father still has much to learn about their ongoing dialogue and the need for them to deal with each other with respect. I do not consider for one minute that the mother would consider the language she used in her communications with the father about Ms C would be appropriate for her communication as a student counsellor towards other students, towards her lecturers, or the people she is mixing with at university. Each of the parents needs to find better and respectful ways of communicating. Their dynamic of resorting to insults and “tone” with each other are loathed by the children. It is a key recommendation of the Family Report Writer that both the mother and father seriously concentrate and develop the skill of communicating with each other with respect. I intend to order that each of the parties do the Post Orders Parenting Program as they have each assured me that they wish to change their past dialogue to a more respectful communication. To her credit, Ms C has indicated she too will do the course.
As I said, the difficult communication between the parties is the single biggest ongoing issue between these two otherwise excellent parents. It is to be hoped that with the benefit of this litigation behind them, the decision about where Z is to live resolved, and similarly Y’s living arrangements resolved, that the parties will be able to move on and adopt a more respectful communication.
S.60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person
The mother has instigated two orders during the relationship many years ago. As I understand the evidence, on each occasion she agreed to the father’s request for her to drop the Orders.
S.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
I intend to make final orders.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant.
I have nothing to add under this heading.
60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
I am satisfied that it is to the benefit of each of the children and in particular Z, to have a meaningful relationship with each of his parents. Z is a much loved child. The father, who often refers to him as “Z boy” has many plans for Z to learn his cultural heritage and spend time on country. The father loves Z dearly as does the mother. The mother also has much to offer Z and is an excellent role model in terms of achieving in life through formal education.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no evidence of abuse or neglect or psychological harm being perpetrated by either parent towards Z.
The situation that occurred when the father went to the homelands with Z followed on from a meeting at the Botanical Gardens in which he explained to the mother he wanted to spend more time with Z and that Z should remain with him until at least the end of 2012. He then describes the mother ringing him up having second thoughts. The mother somehow got information that Ms C’s children had been abused and the mother said she didn’t want her children being around these children that were abused.
There is no evidence at all of Ms C’s children being abused. I accept the evidence of Ms C that this is so and that she and the children’s father have agreed on a week-on, week-off arrangement. It seems to me on that occasion that the mother played some part in acquiescing or seeming to give agreement to the father and then having second thoughts based on information given to her.
Parental Responsibility
I accept, in terms of parental responsibility, that the mother has, at times, made arrangements for her children to be raised which were entirely appropriate, and other times she has been the primary carer. I accept the father has been the primary carer of Y at times and when Z was in his care for four or five months, he was the primary carer. The relationship between the parties, as I said, has been on-again off-again, and the nature of the schooling of the children has required them to travel away from the mother or father.
Also the mother and father have each jointly worked together to support the financial arrangements to enable their children to have the best education possible.
Each of the parties seeks an order for equal shared parental responsibility. Whilst there is evidence that there have been incidents of family violence many years ago, and the presumption may not apply, I am satisfied that the presumption of equal shared parental responsibility is not rebutted. I have had regard to the historical incidents of family violence. I am nonetheless satisfied that is in the best interests of the children, including Z, that the parents share equally in the long term decision making of long term issues. Each of these parents has so many qualities to offer their children now and in the future. I have taken into account the relevant section 60 CC issues
I intend to make an order for equal shared parental responsibility.
Section 61DAA
Having made an order for equal shared parental responsibility I must consider equal time and if not equal time, significant and substantial time. As referred to elsewhere in these reasons, it is not practical for Z to spend equal time with either parent given the distance that the parties live from each other. Neither party is seeking such an order.
The same can be said for significant and substantial time.
Discussion
Whilst the parties are somewhat critical of each other’s actions, I am not critical of them as parents. The single biggest issue for these two impressive young parents is that they still have yet to develop an ability to communicate with each other in a civil and respectful way. It seems that they are perfectly capable of communicating with the rest of the world respectfully, but less so to each other. There are many issues that have happened in the past that each accuse the other of being wrong or going back on agreements. In my view, as sometimes happens, the trial process had been somewhat cathartic for these parents and by the end of the trial, they each expressed regrets about what had occurred in the past during their stressful and torrid years of being young parents with three children. Each expressed a strong desire to move forwards for the good of their four beautiful and successful children. I observed that each was starting to show awareness that their own children were exhausted and frustrated with their parents’ behaviour and simmering hostility towards each other. The messages of their children were unequivocal, they want peace.
I have considered all of the relevant section 60CC considerations in determining which proposal is in the best interest of the children and in particular Z.
In terms of family violence, there has been historic family violence between the mother and father. The mother described their days when they were each young parents, with three children, and at that time the father was, as he describes it, “a young fella”, and he was drinking too much. She did not wish to dwell on it or talk about it as she believed the father was a good father and she knew that he had had difficult times in those days.
Likewise, the father, in something rarely seen in this Court, accepted without reservation that he engaged in acts of family violence to the mother. The father said he now, many years later, he has learnt the wisdom associated with walking away from domestic violence and that he now is able to help others who might be in his position to do likewise. I accept his evidence was heartfelt in this regard.
The application of the father to have Z live with him and his partner Ms C involves significant changes for Z. It may be that Z will have more time to spend on country with his father if he lived with the father, though I am not satisfied that this will occur as often as the father implies or hopes. The father has work commitments and will have responsibilities for C, just one year of age at the time of trial. Another sibling for C was due just after the trial. The father has two step-siblings to also give attention to within the household. This is a very busy household with each parent working full time. Z has started in the school system and is really now restricted to holiday times to spend doing such pursuits.
I have had regard to the cultural considerations and I am satisfied that each of these parents will ensure that their children are exposed to their dual cultures of Aboriginal and Torres Strait Islander. As I have said elsewhere, I cannot imagine two more committed parents in this regard. I am satisfied that if Z lives in Melbourne, he will have sufficient block time with the father to enable cultural activities to occur. This consideration is one of the many considerations under the section 60CC matters which I am required to consider. It is not the only consideration.
I have touched on the issue of the parent’s capacity and concluded that whilst each parent is a good parent, the mother is slightly more in touch with the children’s emotional needs than the father. I am troubled at the prospect of removing Z from this secure attachment and relationship at this time. I accept the evidence of Dr S in this regard. I have mentioned elsewhere that the Father’s proposal involves significant changes for Z. I am not satisfied that the benefits of living with the father are sufficient to warrant such a drastic change in Z’s life.
Y very much wishes to have the opportunity to live with his mother and with Z, before he gets too much older and their childhood years have gone. Z also has a close relationship with his brother Y. There is plenty of evidence of this. The life for Z in Melbourne with his mother is a quiet life with plenty of time spent each day with his mother who has more flexibility to work around his school day. The family life proposed by the father represents a fairly long and possibly lonely time for Z. He will be away from his father each morning once the father leaves for work. Z will be on a bus with the other children, then at school all day, then another bus to day care, then at day care, and then a bus home. The father is home around 5:30pm and other times, he is later. I do not accept that Z will have as much personalised parenting by one of his biological parents in the proposal of the father.
I consider that Z will have, on the mother’s proposal, weeks each year to spend block time with his father and of course his other siblings.
The Independent Children’s Lawyer (“ICL”) endorses both parents as being parents who have no disqualifying factors. The ICL supports the children spending as much time as possible together with each parent. In a finely balanced matter, the ICL has been glowing in her praise of these parents. I accept the force though of the submission about the mother being an excellent custodian of the children’s education. It must be said that the evidence about Y doing rather poorly at school whilst living with the father, leaving home and heading off to McDonalds café most mornings, hanging around with his friends, getting to school late and being marked as failing to put in an appropriate effort is not something I would have expected in the mother’s house. Y was remiss in doing homework and projects. Through her own determined efforts at completing University, the mother has a focus on education and she is a very good role model in this regard. In the long term, I consider that she will ensure that Z fulfils his educational potential in life.
Overall I adopt the submissions of the ICL.
At the conclusion of this trial I told the parents that they were each tremendous parents. I congratulated them on their achievement in raising these four impressive children. I explained to them, that where there are two excellent parents, decisions about the living arrangements are much harder for the Court and whilst they each loved this child, the Court had to make this decision that the parents could not make, based on the child’s best interests.
In this matter, having regard to the best interests of Z, and the section 60CC considerations, I am satisfied that the proposal which is in his best interests is that he should remain living with his mother in Melbourne and spend holiday time as proposed with the father. I am satisfied that Z will maintain a meaningful relationship with his father and siblings on this proposal. In making this Order I must stress to the mother that her compliance with the Orders I am making for Z to spend time with his father during the alternate school holidays must be complied with. Dr S made it very clear to the Court that the mother’s planning for Z’s trips north is an essential component in any proposal for Z to remain living in Melbourne. The Court puts its faith in the mother to ensure that this occurs.
In terms of the other children, I note that the parents agree that the twins will remain at boarding school and spend alternating holidays with each parent. There is no dispute about that. The ICL says that no orders should be made about the twins. I propose to simply make an Order for equal shared parental responsibility and that the twins spend time with each of the parents at times as agreed between the twins and the parents.
Agreement has been reached about Y living with the mother in Melbourne. Y will spend time with the father during the holidays at the same time as Z does, whether in Melbourne or (omitted). The court anticipates that the twins will wish to join in with their siblings as much as they can. Given the ages of the twins (17) and Y (16), I would not anticipate any further litigation about the living arrangements of these children.
Finally, I consider that Z is a fortunate child to be born into such a loving family, with parents and siblings who adore him. In the Orders I propose, I am satisfied that Z will be able to achieve his full potential in life, both academically and culturally.
I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of Judge Willis
Associate:
Date: 14 August 2015
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