EBDEN & EBDEN
[2018] FCCA 1383
•1 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBDEN & EBDEN | [2018] FCCA 1383 |
| Catchwords: FAMILY LAW – Parenting – where the mother seeks to relocate to the Region 1 – time spent with the father – where the mother has sole parental responsibility – supervised time with the father’s new partner – partner not called as witness- rule in Jones & Dunkel – change of school – rejection of late tendered evidence. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60C 60CA, 60CC, 61C, 61DA, 65D, 65DAA, 65DAB, 69ZT Evidence Act 1995 (Cth), ss.55, 135 |
| Cases cited: Adamson & Adamson (2015) 51 FamLR 626 |
| Applicant: | ms ebden |
| Respondent: | mr ebden |
| File Number: | PAC 3672 of 2012 |
| Judgment of: | Judge Harper |
| Hearing dates: | 17 & 18 August & 18 & 19 December 2017 |
| Date of Last Submission: | 18 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gilles SC |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| Counsel for the Respondent: | Mr Lo Schiavo |
| Solicitors for the Respondent: | Rafton Family Lawyers |
THE COURT ORDERS THAT:
The Interim Orders dated 16 December 2016 be discharged.
The mother have sole parental responsibility for [X] born 2006 and [Y] born 2007 (“the children”) in relation to major long term issues relating to the children.
The children spend time with the father as follows:
(a)During the school terms, on the third weekend of each calendar month from 4:30pm Friday until 4:30pm Sunday or at such other times as may be agreed between the parties in writing;
(b)On Easter Sunday from 10am until 4:00pm;
(c)During the school holiday periods Order 3(a) herein be suspended and in lieu the following shall apply:-
(i)During the shorter school holidays falling at the conclusion of Term 1, 2 & 3 in 2018, for one block period of four (4) consecutive nights as agreed between the parties, but failing agreement during the first week of the school holidays from 4:30pm Thursday and concluding at 4:30pm Monday.
(ii)During the Term 4 Christmas/New Year school holiday period for two (2) separate block periods of five (5) nights as agreed between the parties but failing agreement to commence at 4:30pm on the second (2nd) and sixth (6th) Thursday of the school holiday period concluding at 4:30pm on the fifth (5th) day thereafter (ie. Tuesday).
(iii)Commencing 2019, during the shorter school holidays falling at the conclusion of Terms 1, 2 and 3 for a bloc period of five (5) consecutive nights as agreed between the parties, but failing agreement during the first week of the school holidays from 4:30pm Friday and concluding at 4:30pm on the fifth (5th) day thereafter (ie. Monday).
From the commencement of Term 2 2019, Order 3 may be varied or suspended by agreement in writing between the parties.
Notwithstanding any Order to the contrary, the children shall be in the mother’s care on the following occasions:
(a)From 6:00pm on Thursday immediately preceding Good Friday until 10:00am Easter Sunday;
(b)Such other times as agreed
That the mother be permitted to relocate the children’s place of residence to the Region 1.
That the children be enrolled to attend School F.
That the father be restrained by injunction from leaving the children with or in the sole care of Ms J, unless he is personally present.
After 31 January 2019, Order 8 may be varied or suspended by agreement in writing between the parties.
That within 14 days of the date of these Orders, the parties do all acts and things necessary to contact Catholic Care to enrol in the Keeping Kids in Mind Post-Separation Parenting Program and;
(i)shall attend and complete such program when it is made available to them; and
(ii)shall provide Certificate of Completion to the other parent forthwith upon their receipt of same.
BY CONSENT, THE COURT ORDERS THAT:
That each party inform the other, in writing, of any change to his or her residential address, mobile number and landline not less than seven (7) days prior to such change occurring and of any change to his or her contact telephone within three (3) days of such change occurring.
That the Interim Orders dated 16 December 2016 be discharged.
That leave be granted for the mother to provide family report prepared by Dr H dated 8 May 2017 to the children’s treating counsellors, psychologists and/ or psychiatrists.
Within 14 days of the date of these Orders, the father do all acts and things necessary to engage in counselling with a focus on improving his attunement with the children with one of the following therapists (or such therapist as might be recommended by them in the event of unavailability):
(a)Ms A;
(b)Dr L of Counselling;
(c)Dr K of The Relation Space;
(d)and the father be granted leave to provide such therapist with family report prepared by Dr H dated 8 May 2017 with the father to ensure provision of same upon commencement of such counselling.
That at the times the children are to spend time with the Respondent Father in accordance with these others and the children are unable to attend for any reason whatsoever including but not limited to illness, family commitments, weddings, sporting events/ extra curricular events inter alia. The Father shall be informed by the Applicant Mother as soon as practicable of their inability to attend.
That each party inform the other, in writing, of any change to his or her residential address, mobile number and landline not less than seven (7) days prior to such change occurring and of any change to his or her contact telephone within three (3) days of such change occurring.
IT IS NOTED that publication of this judgment under the pseudonym Ebden & Ebden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
PAC 3672 of 2012
| MS EBDEN |
Applicant
And
| MR EBDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the Applicant Mother Ms Ebden (“the mother”) and the Respondent Father Mr Ebden (“the father”) in relation to the children of their relationship [X], born 2006 (“[X]”), and [Y], born 2007 (“[Y]”), (together “the children”). The mother filed her Initiating Application on 15 November 2016. The father filed his Response on 13 December 2016.
The matter was initially listed before me in the Wollongong Registry of this Court in August of 2017. The hearing did not finish in the allocated time. The matter went over part heard and the proceedings were completed before me in Sydney on 18 and 19 December 2017.
Procedural history
The mother initiated both parenting and property proceedings in the Parramatta Registry of the Family Court of Australia by filing an Initiating Application and Financial Statement on 23 August 2012. The father subsequently filed his Response to this Application and supporting Financial Statement on 16 November 2012. The parties attended a Case Assessment Conference before Registrar Tran on 26 September 2012 and whilst the parties came close to an agreement, the matter did not settle on that occasion. The matter was listed for a Hearing Directions on 16 November 2012 and final Consent Orders were made for both property and parenting issues.
The parties first came before the Federal Circuit Court of Australia (“The Court”) on 11 June 2014. The parties had filed a Joint Divorce Application on 9 May 2014 and the marriage was effectively terminated on 12 July 2014.
The mother initiated these parenting proceedings on 15 November 2016 by filing an Initiating Application, Notice of Risk and Affidavit in support at the Wollongong Registry of the Court. The mother had sought urgency in her Initiating Application and the matter was listed in the next available urgent listing on 14 December 2016. On 13 December 2016 the mother amended her Initiating Application and the father filed a Response, Notice of Risk and supporting Affidavit.
The matter first came before the Court in a Duty List on 14 December 2016 before His Honour Judge Altobelli. On that date, Interim Orders were made by Consent and the matter was listed into a mention on 12 April 2017. The Interim Orders made by consent discharged the parenting orders made on 16 November 2012.
The matter was next before the Court on 12 April 2017 and by consent, Dr H was appointed for the preparation of Single Expert Report. This report was released to the parties by Chambers on 8 May 2017.
The matter returned to Court for a further mention on 7 June 2017. On that occasion, the matter was set down before me for final hearing on 17 and 18 August 2017.
As previously stated, the matter went over part heard and the proceedings were completed in Sydney on 18 and 19 December 2017.
Both parties appeared by counsel at the final hearing.
Owing to judicial illness and the pressures of the judicial calendar, delivery of these reasons has been unfortunately delayed.
Issues in dispute
The competing proposals of the parties will be set out in detail later in these reasons. However, a number of orders have already been made by consent. They will also be set out later in these reasons. The main outstanding issues between the parties may be summarized as follows. The parties have agreed that the mother should, subject to the question of secondary schooling, have sole parental responsibility for the children. The central dispute then concerns the time to be spent by the children with the father. The father seeks each alternate weekend from after school Friday until Sunday evening during the school term, and half school holidays. The mother proposes every third weekend from 4.30 pm Friday to 4.30 pm Sunday during term time and block time during school holidays progressing from 2 to 3 nights by 2019. The question of the time to be spent with the father is significantly affected by the question of whether the mother should be permitted to relocate to the Region 1 area. The parties remain in dispute about the children’s schooling and overseas travel.
Proposals
The orders sought by the mother which remain for determination are as follows:
a)The mother have sole parental responsibility for [X] born 2006 and [Y] born 2007 (collectively referred to as “the children”) in relation to decisions relating to the care, welfare and development of a long term nature.
b)The children spend time with the father as follows:
a)During the school terms, on the third weekend of each calendar month from 4:30pm Friday until 4:30pm Sunday;
b)On Easter Sunday from 10am until 4:00pm;
c)During the school holiday periods Order 8(c)(i) herein be suspended and in lieu the following shall apply:-
(i)During the shorter school holidays falling at the conclusion of Term 1, 2 & 3 in 2018, for one block period of two consecutive nights as agreed between the parties, but failing agreement during the first week of the school holidays from 4:30pm Friday and concluding at 4:30pm Sunday.
(ii)During the Term 4 Christmas/New Year school holiday period for two (2) separate block period of three (3) nights as agreed between the parties but failing agreement to commence at 4:30pm on the second (2nd) and sixth (6th) Friday of the school holiday period concluding at 4:30pm on the fourth (4th) day thereafter (ie. Monday).
(iii)Commencing 2019, during the shorter school holidays falling at the conclusion of Terms 1, 2 and 3 for a bloc period of three (3) consecutive nights as agreed between the parties, but failing agreement during the first week of the school holidays from 4:30pm Friday and concluding at 4:30pm on the fourth (4th) day thereafter (ie. Monday).
c)Notwithstanding any Order to the contrary, the children shall be in the mother’s care on the following occasions:
a)From 6:00pm on Thursday immediately preceding Good Friday until 10:00am Easter Sunday;
b)Such other times as agreed
d)That the mother be permitted to relocate the children’s place of residence to the Region 1.
e)That the children be enrolled to attend School F.
f)The mother shall be at liberty to suspend the children’s time with the father on no more than one occasion per year and for no more than six (6) nights (with such time to coincide with the school holiday periods) to enable the mother to holiday with the children provided the mother provides the father no less than 28 days’ notice in writing (to include text message) of her intention to do so and he father shall be offered make-up time with the children.
g)That the father be restrained by injunction from:-
a)leaving the children with or in the sole care of Ms J, unless he is personally present.
h)That within 14 days of the date of these Orders, the parties do all acts and things necessary to contact Catholic Care to enrol in the Keeping Kids in Mind Post-Separation Parenting Program and;
a)shall attend and complete such program when it is made available to them; and
b)shall provide Certificate of Completion to the other parent forthwith upon their receipt of same.
The orders sought by the father which remain for determination are as follows:
a)That the mother have sole parental responsibility for the Children [X] born 2006 and [Y] born 2007 (“the Children”).
b)The effect of Order 2 is stayed on the issue of determination of which High School the children shall attend. The parents are to jointly determine which High School the children shall attend.
c)The Applicant Mother to reside with the children in the Sydney region.
d)That the Children spend time with the Respondent Father as follows:
During School term:
a)Each alternate weekend from the end of school Friday to Sunday evening prior to school (Monday Evening if Monday is a holiday or pupil free day), commencing on the second weekend after the commencement of the 2018 school year.
During school holiday periods:
b)For one half of each term school holiday period as agreed between the parties and failing agreement:
(i)For the first half of the Children’s school holiday period commencing at 9:00AM on the first Saturday of such holiday period and concluding at 9:00AM on the day nearest to the mid-point of the holiday period in the year 2017 and each alternate year thereafter;
(ii)For the second half of the Children’s school holiday period commencing at 9:00AM on the day nearest to the mid-point of the holiday period and concluding at 5:00PM on the Sunday before the next school term commences in the year 2018 and each alternate year thereafter;
(iii)For one half of each Christmas school holiday period as agreed between the parties, and failing agreement for the first half of such holiday period, the first half shall commence at 9:00AM on the first Saturday of such holiday and end at 9:00AM to the closest day to the mid point of the school holiday period and each alternate year thereafter. The second half shall commence on the day closest to the mid point and end on the Sunday at 5:00PM closest to the end of the school holiday period and alternate each year thereafter.
e)That each of the Applicant Mother and the Respondent Father be permitted to take the children for a holiday within Australia or overseas (“the holiday”) during periods when the Children are living or spending time with him/her pursuant to these orders, provided that he or she gives the other parent written details of the holiday at least two (2) weeks prior, including:
a)Day of departure from and return to Sydney;
b)Copy of itinerary provided by a travel agent or airline in relation to the holiday;
c)A copy of the return airline ticket for the Children; and
d)Details of how the Children can be contacted whilst away from Sydney, including contact telephone number(s) and address(es) at which the Children will be residing whilst away from Sydney.
Orders Made by Consent
The Orders already made by consent are as follows:
CONSENT ORDERS MADE ON 17 AUGUST 2017
a)That the children live with the Applicant mother.
b)That if either of the children’s birthdays falls on a non-school day when the children would not otherwise be spending time with a parent they shall spend from 3pm to 7pm with that parent on each of the children’s birthdays.
c)Notwithstanding any other order the children shall spend time with the father:
a)In the event that they would not otherwise be in his care on Father’s Day from 10am to 5pm each Father’s Day.
d)Notwithstanding any other order the children shall spend time with the mother:
a)In the event that they would not otherwise be in her care on Mother’s Day from 10am to 5pm each Mother’s Day.
e)“Without admissions” the mother is restrained from permitting the children to spend unsupervised time with Mr R and the mother shall do all acts and things to ensure that when the children are in the presence of Mr R they will be supervised by one of the following persons:
a)The mother;
b)The maternal grandmother; or
c)The mother’s siblings; or
d)Mr P.
f)“Without admissions” both parties are restrained from:
a)Denigrating or belittling the other party in the presence or hearing of the children and shall immediately remove the children from the presence or hearing of any third party who does so.
b)Discussing these proceedings or the contents of any document file in them in the presence or hearing of the children and shall immediately remove them from the presence or hearing of any third person who does so.
c)Smoking or using drugs in the presence of the children and shall immediately remove from the presence of any third party who does so.
CONSENT ORDERS MADE ON 19 DECEMBER 2017
a)In order to facilitate changeover pursuant to any parenting Orders, the father shall collect the children from the mother’s residence at the commencement of the time the children are to spend with the father and the mother shall collect the children from the father’s residence at the conclusion of such time.
b)That the father be restrained by injunction from:-
a)Discussing these proceedings with the children;
b)Denigrating the mother or any member of the mother’s family in the presence of or within hearing of the children and shall endeavour to ensure no third party denigrates the mother or members of her family in the presence of or within the hearing of the children;
c)Physically chastising the children or threatening to do so.
c)The children be at liberty to telephone either parent at any reasonable time and each parent shall facilitate such communication with the other should the children request to do so.
d)That the mother be at liberty to obtain a comprehensive psycho-educational assessment of the child, [Y].
e)The father is restrained from:-
a)Permitting the children to be in the presence of Mr M unless the father is present and personally supervising the children.
b)Permitting the children to reside in a household of which Mr M is a member.
f)Notwithstanding any other order the children shall spend time with the mother:
a)From 4pm Christmas Day to 4pm Boxing Day in years ending in an even number; and
b)From 4pm Christmas Eve until 4pm Christmas Day in years ending in an odd number.
g)Notwithstanding any other order the children shall spend time with the father:
a)From 4pm Christmas Day to 4pm Boxing Day in years ending in an odd number; and
b)From 4pm Christmas Eve until 4pm Christmas Day in years ending in an even number.
h)In the event that either of the children suffers a medical emergency or significant illness in either parents care that parent shall advise the other parent, in writing, (with writing to include a text message) at the first available opportunity of the following:
a)The nature of the medical emergency or significant illness;
b)The name, telephone number and address of any medical practitioner or health care provider who has provided treatment to the children;
c)Diagnosis received;
d)Prognosis
e)Treatment rendered;
ORDERS CONSENTED TO BY THE PARTIES DURING THE COURSE OF SUBMISSIONS
a)That the Interim Orders dated 16 December 2016 be discharged.
b)That leave be granted for the mother to provide family report prepared by Dr H dated 8 May 2017 to the children’s treating counsellors, psychologists and/ or psychiatrists.
c)Within 14 days of the date of these Orders, the father do all acts and things necessary to engage in counselling with a focus on improving his attunement with the children with one of the following therapists (or such therapist as might be recommended by them in the event of unavailability):
a)Ms A;
b)Dr L of Counselling;
c)Dr K of The Relation Space;
d)and the father be granted leave to provide such therapist with family report prepared by Dr H dated 8 May 2017 with the father to ensure provision of same upon commencement of such counselling.
d)That at the times the children are to spend time with the Respondent Father in accordance with these others and the children are unable to attend for any reason whatsoever including but not limited to illness, family commitments, weddings, sporting events/ extra curricular events inter alia. The Father shall be informed by the Applicant Mother as soon as practicable of their inability to attend.
General
e)That each party inform the other, in writing, of any change to his or her residential address, mobile number and landline not less than seven (7) days prior to such change occurring and of any change to his or her contact telephone within three (3) days of such change occurring.
For the avoidance of doubt these orders will be formally pronounced as part of this judgment.
Background
The relevant background facts in this matter are as follows:
a)On 1974, the mother was born. She is, currently, 43 years of age.
b)On 1977, the father was born. He is, currently, 40 years of age.
c)The parties married on 2002.
d)On 2006, [X] was born. She is currently 11 years of age.
e)On 2007, [Y] was born. She is currently 10 years of age.
f)On 7 February 2012 the parties separated. The father vacated the former matrimonial home and the children remained living with their mother.
g)In February 2012 the children consult their school counsellor to deal with the effects of their parent’s separation.
h)On 23 August 2012, the mother initiated parenting and property proceedings in the Family Court of Australia.
i)On 16 November 2012, final property and parenting orders were made by consent. Final parenting orders provided for equal shared responsibility and equal time.
j)On 12 July 2014, parties’ divorce becomes effective.
k)Since 16 November 2012, parties settle into alternate week arrangements and on occasion, as agreed between the parents, the mother was able to gain additional time with the children. There are occasions in which the mother requests additional time with the children and the father agrees. However, as the conflict between the parties increases, the ability of the parents to agree on flexible arrangements diminished.
l)On 8 September 2016, the children commenced counselling with psychologist Ms E. (Mother’s affidavit paragraph 91)
m)From November to December 2016, the children remain in the mother’s care and consent orders are not complied with. The reasons for this deviation of orders are disputed between the parties.
n)On 15 November 2016, mother initiates parenting proceedings in the Wollongong Registry of the Court.
o)On 14 December 2016, Interim Consent Orders are made and allowed for an incremental increase in the children’s time with the father over a 3 month period.
Under the Orders of 14 December 2016 the children currently live with the mother at Suburb B (“the Suburb B home”). They spend time with the father each alternate week from 4.30 pm Friday until 4.00 pm Sunday. The father lives at Suburb C (“the Suburb C home”)
Evidence
The mother relied on the following documents:
a)Her Amended Initiating Application filed on 13 December 2016;
b)Her Affidavit sworn on 7 August 2017 and filed 8 August 2017;
c)The Affidavit of Mr P sworn and filed on 7 August 2017;
d)The Affidavit of Ms L sworn and filed on 7 August 2017; and
e)The Single Expert Report of Dr H dated 8 May 2017.
The mother was cross-examined.
The father relied on the following documents:
a)His Amended Response to Initiating Application filed on 10 July 2017;
b)His Affidavit sworn and filed on 13 December 2016;
c)His Affidavit sworn on 19 May 2017 and filed on 23 May 2017;
d)His Affidavit sworn and filed on 7 August 2017;
e)His Notice of Risk filed on 23 May 2017;
f)The Affidavit of Mr D sworn on 7 August 2017 and filed on 17 August 2017;
In his Outline of Case the father also stated he relied on the following documents of the mother:
a)The Affidavit of Ms E sworn on and filed on 29 November 2016;
b)The mother’s Notice of Risk sworn on and filed on 15 November 2016;
c)The Affidavit of Mr P sworn and filed on 7 August 2017; and
d)The Affidavit of Ms L sworn and filed on 7 August 2017.
The father was cross-examined.
Counsel for the father raised objections relevant to some of the mother’s affidavit material based on hearsay. Such material was not pressed by the solicitor for the mother and, accordingly, the relevant material is not read by the Court.
The following documents were received into evidence:
Exhibit Label
Document
Tendered by
1
Letter from Ms Ebden to the child’s school dated 9.04.2014
Father
2
Email from Mr Ebden: Request for address dated 13.06.2012
Father
3
School G- Parent of record meeting with Ms Ebden dated 22.09.16
Father
4
Email from School G to Mr Ebden dated 16.06.2016 and Parent of record meeting with Mr Ebden dated 23.06.16
Father
5
School G- integrated progress notes for [Y]
Father
6
School G- Student Attendance
Father
7
Referral to LEAP Team form: [X] dated 3.4.13
Father
R8
Bundle of Exhibits
Father
A1
Text messages dated 16 December 2013 and 25 February 2013
Mother
A2
Bundle of Emails from Mother
Mother
A3
Emails from Mother regarding schooling
Mother
A4
Statements of Mother’s superannuation fund
Mother
A5
Police record of Mr M entitled “Criminal History – Bail Report”
Mother
A6
Medical records of Ms J, entry of 12 January 2017
Mother
A7
Documents produced on subpoena by (omitted) Centre regarding Ms J, [A] and [B]
Mother
A8
NSW Ambulance records of Ms J as flagged, dated 11.07.2015
Mother
A9
Documents produced under subpoena by Hospital regarding Ms J, as flagged
Mother
A10
Documents produced under subpoena from the NSW Police regarding the father and Ms J
Mother
A11
Text messages between the parties of various dates
Mother
A12
Documents produced under subpoena from Ms E, Psychologist to the children (entire bundle)
Mother
A13
Notes produced by New South Wales health dated 13.03.2006 regarding Ms J, (relevant sections marked with a pink note)
Mother
A14
Criminal History – Bail Report of Ms J, relating to a charge of driving whilst license suspended (relevant sections marked with a yellow note)
Mother
Expert evidence
A Family Report was prepared by Dr H. I have marked this Exhibit “Court 1”. The report was based, as described by Dr H, on the material filed by the parties so far in the proceedings, some documents produced on subpoena and the interviews conducted, as set out in her report.
I will refer to the content of the report as necessary during the course of these reasons.
Family Report Recommendations
The family report writer gave conclusions and made recommendations in paragraphs [84- 94] of her report as follows:
a)The mother is deemed to be more effective as the residential parent. She is the children’s primary attachment.
b)There is no realistic prospect these parents can ever make decisions jointly which will serve their children’s best interests
c)It would be in the best interests of the children to live with their mother and for her to make all decisions about their day to day care – including about educational, medical, allied health and psychological treatment.
d)There is no reason to oppose relocation out of concern that the father-children closeness will be lost - because the harm has already been done. Repair is needed
e)Harm minimization should be the guiding principle. If [X] and [Y] blame their father for impeding their happiness with their mother, they will reject hi
f)If the mother and children remain in Sydney, then it would be feasible for the children to spend alternate weekend and half holidays with their father, although it seems likely further problems will arise, and the matter will return to Court.
g)If the mother and children relocate to the Region 1 region, the purposes and benefits of weekend visits to the father must be considered carefully. Ordering frequent contact could have a paradoxical effect. It may prove a more stable arrangement for the girls to visit their father every third or fourth weekend and spend additional time with him in school holiday
h)Obtain a full psychoeducational assessment for [Y] as soon as possible.
i)As this matter is likely to return to Court as a dispute about alienation versus estrangement if the father’s attunement with [Y] does not improve quickly it is strongly advised that Mr Ebden attend counselling with a therapist who has special expertise in cases of this type. Ms A, \Dr L, Dr K may be able to refer on if they have no capacity.
j)The parents should each attend a post-separation parenting course such as (course omitted).
k)The parents should subscribe to Our Family Wizard immediately.
Dr H also gave oral evidence. Her oral evidence confirmed:
a)She saw no prospect of a collaborative co-parenting relationship improving.
b)The parties’ parenting styles are incommensurate, and there was no normative co-parenting relationship which could allow co-parenting to work.
The Children
[X] is currently 11 years of age.
[Y] is currently 10 years of age.
Both children currently attend School G.
There is evidence that both children experienced difficulties at school. [X] told Dr H that she is happy at school despite some bullying, although her self-esteem was not crushed. In June 2016 the school counsellor recommended that both children be referred to an external psychologist. [Y] has struggled with her schoolwork and has problems with her vision requiring a behavioural optometrist.
The mother’s evidence
I found the mother to be a satisfactory witness. I am satisfied she answered questions frankly and directly, to the best of her recollection.
The father’s evidence
Overall I found the husband to be an unsatisfactory witness. He was at times argumentative with the questioner. He often gave unresponsive answers. At several points in his cross examination it was necessary to ask him to focus on the questions asked. At times his answers were obtuse. For example, he was asked to agree that the mother was committed to the children’s education. He resisted agreeing to this proposition. He was then asked to accept the children did their homework at the mother’s home. He demurred. He then agreed he received the children’s school reports which showed no indication they did not do their homework. He eventually agreed the children must do their homework at the mother’s house. I treat his evidence with caution.
Relevant Law
The Approach in Goode & Goode
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, which are also a useful guide to approaching the resolution of the issues at a final hearing, namely:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Legislative framework
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.[1]
[1] There is no relevant parenting plan so s 65DAB of the Act does not apply.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.
The application of the presumption has significant consequences. It may be that if the presumption is applied, the court is required to make an order for equal shared parental responsibility: Damiani & Damiani (No. 2) [2009] FamCAFC 215 at [133], [134]. Where the presumption applies, it conditions the court’s power to make parenting orders, including through the enlivening of s.65DAA: MRR v GR (2010) 240 CLR 461 at [20]; Cox v Pedrana (2013) 48 FamLR 651 at [16], [17]. Therefore as the Full Court pointed out in Cox v Pedrana at [19] (following MRR at [7]) if the presumption is not to apply or is rebutted, the relevant findings need to be made by reference to ss.61DA(2) or (4), and such findings will ordinarily be made in the course of, or informed by, an assessment of the considerations set forth in s.60CC(2) and (3). See also Chappell and Chappell (2008) FamCAFC 143; (2008) FLC 93-382 at [75].
There are no allegations of, or evidence of, family violence in this matter, or other risk factors. There are no reasonable grounds for the Court to believe that the children have been subject to abuse or family violence, therefore s.61DA(2) does not prevent application of the presumption.
This leaves for consideration whether the presumption is rebutted in the best interests of the children, within s.61DA(4). An answer to this question requires me first to take account of the prescribed considerations in ss.60CC(2) and (3).
In addition, as the decision in Goode & Goode (supra) makes clear that even if the presumption is not applied or is rebutted, then the Court makes such orders as it deems are in the best interests of the child, as a result of assessing of one or more of the considerations set out in s.60CC of the Act.
I turn to those considerations now, before returning to the question or parental responsibility later in these reasons.
Best interests of the child
The best interests of a child are the paramount consideration (s.60CA of the Act).
The considerations set out in s.60CC of the Act. are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act.
The underlying principles set out in s.60B of the Act are as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
a.(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b.(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c.(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d.(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
e.(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
f.(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
g.(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
h.(d) Parents should agree about the future parenting of their children; and
i.(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
j. (a) to maintain a connection with that culture; and
k. (b) to have the support, opportunity and encouragement necessary:
i. (i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
ii. (ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In considering the role to be played by these objects and principles in the determination of parenting orders I follow what the Full Court of the Family Court of Australia said in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74]-[75], particularly:
a)In its current form, s.60B of the Act does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operates as an aid to construction of the Part and the Act; and
b)The current s.60B of the Act cannot be used to change the ordinary and clear meaning of s.60CC of the Act nor where the s.60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, will s 60B be decisive.
S.60CC sets out a number of specific primary and additional considerations. Older authorities such as Smith and Smith (1994) FLC 92-488 (at 81,084) referred to a “preferable approach” involving the separate consideration of each of the statutory matters in s.60CC. In Jollie & Dysart [2014] FamCAFC 149 at [49] the Full Court called this a “guideline” and, in the context of what the Act now requires, is “nothing more than an exhortation to apply system and order to that which the Act, and s 60CC in particular, mandatorily requires. What the Act mandates is a “consideration” – a mental process of analysis – that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child H involved. Of course, the law also requires of a judge reasoning which is adequate to evidence that process of analysis (the required “consideration”) and to explain, consequently, the path to the ultimate result.” I approach the s.60CC considerations on this basis.
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s.60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
As to s.60CC(2)(a), the Full Court of the Family Court of Australia in Sigley v Evor (2011) 44 Fam LR 239 endorsed a number of earlier judicial statements of interpretation:
a)A “meaningful relationship” as one which is “important, significant and valuable to the child”: (citing Mazorski v Albright [2007] FamCA 520 and McCall v Clark (2009) FLC 93-405); and
b)A “prospective approach” is the preferred approach to s.60CC(2)(a) requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]-[119];
c)Depending on the factual circumstances “the present relationship approach” may be relevant, requiring the Court to examine the evidence “of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which finding will be reflected in the orders ultimately made”; however, it is not the preferred approach since s.60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons, and application of the present relationship approach would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall (supra) at [118]-[119];
d)The legislation aspires to promote a meaningful relationship, not an optimal relationship, (M v S (2007) FLC 93-313 per Dessau J; Godfrey v Sanders (2007) FamCA 102 per Kay J and Champness v Hanson (2009) FLC 93-407 per the Full Court); and
e)A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: at [136] following Champness (supra) at [191].
The “meaningful relationship” consideration in s.60CC(2)(a) of the Act supports the position that as much time as possible with both parents is in the children’s best interests.
At paragraph 62 Dr H observed that “it seems that the children have meaningful relationships with both parents and their extended families which should continue for the usual reasons of identity formation and preserving social capital.”
The children’s relationship with the mother is meaningful and there was no dispute that they would continue to benefit from it. This does not require further comment here.
There was no dispute that the children would benefit from a meaningful relationship with their father. Rather the question was how this should be maintained. The expert evidence was that damage has already been done to the children’s relationship with the father. Dr H was clear that repair is needed. Repair will require time to be spent with the father. This question is materially affected by the mother’s proposed relocation to the Region 1. I will deal with this later in these reasons.
I give weight to this consideration.
Section 60CC(2)(b), “abuse” and “family violence”
Subject to one matter, there were no allegations of risk factors in this matter.
The qualification relates to the father’s present partner Ms J. The mother seeks an order restraining the father from leaving the children in the sole care of his partner Ms J. I will return to this later in these reasons.
Additional considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(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;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests".
In Bondelmonte & Bondelmonte [2016] FamCAFC 48 the Full Court of Family Court of Australia said at [97] that it is not, and never has been, the case that a Judge is obliged to make orders consistent with a child’s stated views (here the Full Court made reference to H v W (1995) FLC 92-598; and Maldera & Orbel (2014) FLC 93-602). In dismissing the appeal from this decision the High Court of Australia said in Bondelmonte v Bondelmonte [2017] HCA 8 at [34]:
In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child [something approaching a decisive] weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
Rather, a primary judge is obliged to consider the weight which should be given to any stated views. The High Court of Australia also said in Bondelmonte (supra) at [35]:
... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
In other words, context is critical and it is a matter for a judge to determine how giving effect to a child’s stated view accords with the child’s best interests (R v R (Children’s Wishes) (2002) FLC 93-108; Gillard & Gillard [2015] FamCAFC 169 at [81]).
The children are both young, although old enough to express views.
According to Dr H, both children “expressed a strong residential preference for the mother and a desire to relocate to the Region 1.” (paragraph 72)
[X] believed both parents loved her (paragraph 53). She told Dr H that her father was irritable and could be harsh in his discipline. She felt scared of his temper. She denied he was unkind (paragraph 43).
She preferred things as they were and would not want a week about arrangement (paragraph 43). Without being prompted [X] said she ideally would like to spend all week days with her mother and visit her father every second weekend, and she was enthusiastic about moving to Suburb A (paragraph 44). [X] thought she may miss her maternal cousins if she moved to Suburb A, but expected they could visit frequently.
Dr H said of [X] that she “seems to be trying to juggle her loyalties to both parents, and may succeed because she is intelligent, kind-hearted and fair-minded” (paragraph 70).
Dr H recorded that [X] held the view that most of the arguments, problems and unhappiness were caused by her father. [Y] also held that view, and there were not “many things about her father that she really likes.” (paragraph 53).
[Y] is in no doubt that both her parents care for her and are committed to her. She enjoyed going to Region 2 with her paternal kin (paragraph 49). She was keen to move to the Region 1 and thought spending one day with her father every second weekend would be plenty for her and she seemed willing to spend holiday time with him at resorts, Region 2 or anywhere her cousin [C] might also be (paragraph 50).
However, in relation to [Y], Dr H formed the view that [Y] “is not as realistic about cause-effect relations as [X], is more deflated by setbacks and negative appraisals from others…” (paragraph 70 and she lacked “maturity and independent, critical thinking skills to evaluate her attachment relationships objectively” and she viewed her father as “entirely mean and harsh” due to her “childish thinking”. Dr H also expressed the fear that “[Y] could harden her heart further, and reject her father completely if life disappoints her.” (paragraph 71). [Y] is also “much less distress-intolerant than [X]” (paragraph 78).
I give weight to the views of the children, while taking account of their age and the comments of Dr H about their maturity and different temperaments. The views of [Y] in particular seem to be affected by her level of maturity.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
Dr H opined that there is “mutual love between both children and their parents”. However, the nature of the relationship is different with respect to each parent individually.
The evidence was clear and undisputed that the relationship between both children and their mother is warm and loving. The mother is supportive and accessible. Dr H said the mother’s “capacity for empathetic attunement is much better than the father’s” (paragraph 63) and she is “the children’s primary attachment and their emotional mainstay” (paragraph 70).
The discussion of the children’s views above, indicates that the relationship between the father and the children is damaged. This is clearly Dr H’s view (paragraph 87). The children hold the father responsible for much of the aggravation in their lives (paragraph 52).
Dr H had regard to a report of Ms E, the children’s treating clinician (paragraph 60). The report was dated 26 November 2016. Ms E noted [Y] repeatedly reported feeling scared and unhappy at her father’s house and missing her mother. Ms E reported that both girls seemed very anxious about staying with their father. [Y] also seemed distressed and angry, while [X] seemed disappointed, sad and conciliatory towards her father.
Some of Ms E’s notes became Exhibit A12. The notes cover the period April to July 2017. This was in the period after December 2016 when orders were made for the children to live with the mother and spend alternate weekends with the father. The notes indicate an improvement in the children in that period. [X] generally felt things were going well, indeed her sense of well-being “is now consistently high”. However, she remained “closed” in talking about her father and apprehensive staying with him. The notes showed a “considerable ongoing improvement in [Y]’s sense of her wellbeing in 2017”. However, she was glad to spend less time at her father’s house.
At paragraph 63 of her report Dr H says: “The father seems too blinkered by his strong opinions to enter imaginatively into the frame of reference of someone different from him, and this is impeding his ability to get close to his children, especially [Y].” At paragraph 77, Dr H said further:
Although nothing has emerged to suggest that Mr Ebden is abusive or neglectful, he is not as well-attuned to the children as Ms Ebden, whom they greatly prefer for that reason. In order to protect the father-daughter relationships Mr Ebden needs to make sure that [Y] and [X] always feel safe and comfortable with him, and never feel unsafe or uncomfortable. He should take great care not to burden them with his sorrows or disappointments, to conceal from them his differences of opinion with their mother and to display his respect for her maternal devotion. Because [X] is more resilient than [Y] she can probably navigate the contradictions of her heart and maintain a relationship with her father, valuing his good points and overlooking any failures in accurate empathy caused by his strong opinions.
At paragraph 78 Dr H continues:
[Y] seems much less distress-intolerant than [X] (partly due to her temperament, partly due to her adverse learning experiences, partly due to the adversity caused her by parental disunity). It seems likely that the unsuitable 50:50 arrangement has weakened [Y]’s attachment security in general, and with Mr Ebden in particular. She could develop phobic aversion to her father’s company if the stress of maintaining her relationship with him outweighed the joy and comfort she finds in that relationship. He needs to be very careful that the ratio of “nice to nasty” interactions (from [Y]’s childish point of view, not from an adult point of view) is at least 5:1.
Aspects of the father’s evidence give support to this opinion. In his oral evidence the father gave the strong impression of lacking attunement in his relationship with [Y], in particular. For example, at one point he said in his answers that “[Y] has been great. Our relationship is excellent. We do everything. I read stories. Our relationship is growing strong.” This perception was in sharp contract with Dr H opinion which was to the effect the father lacked attunement to the children.
In paragraph 124 of his Trial Affidavit the father gives evidence about what he calls “The Consequences of Spoiling the Girls”. In subparagraph (iii) he criticises the mother for failing to set boundaries for the girls, and for letting them “do what they want”. He gave evidence that he sets boundaries as a responsible father, not for his benefit but for to the children.
In subparagraph (iv) he asserts that [Y] “is beginning to tell lies on occasion to get her own way.” He gives as an example [Y] lying about homework and avoiding doing it. The father was cross examined about this evidence. He confirmed that he viewed [Y]’s homework avoidance as an example of her simply not doing a difficult task she did not like. He refused to accept the possibility that she had reading delays by reason of vision problems. Dr H says at paragraph 69 said:
Unfortunately, if their problems are not addressed in the early primary school years, SLD children may develop great performance anxiety. As a result classroom learning, and academic tasks generally, become aversive. In defence of their self-esteem many SLD children stop trying, thinking along the lines of “If I don’t try I can’t fail, but if I try and fail that means I am stupid.” From what Mr Ebden reports, this may have happened with [Y], hence she does not apply herself. She needs to experience success by following the adage “If at first you don’t succeed try, try again” However, simply telling her to try harder will not work. She needs remediation to build up her skills and confidence first.
I give weight to this consideration.
(ii) and other persons (including any grandparent or other relative of the child);
The mother has re-partnered with Mr P. Dr H reported that both girls seemed to have an amiable, co-operative relationship with him. When the children, the mother and Mr P were interviewed together, “the family atmosphere was warm, comfortable and relaxed.” They left happily with him when Dr H interviewed the mother. (paragraph 40). [X] told Dr H that she loved Mr P “to bits”.
As already observed, the father has re-partnered with Ms J. [X] told Dr H that Ms J is “really nice” and would help with problems if asked (paragraph 43). Dr H recorded that [Y] “seems to have spread her devaluation of her father” to Ms J, without justification as [X] said Ms J was “lovely” and Ms J struck Dr H as “benevolently disposed towards the girls.” (paragraph 71). However, the position regarding Ms J is complicated. The mother seeks a restraint in respect of Ms J. I will deal with this later in these reasons.
The mother gave evidence that her mother lives with her and the children in the Suburb B home. The maternal grandmother assists with the care of the care children from time to time.
Both parents gave evidence that the children have close involvement with their extended families including uncles and cousins. The father’s family has a property at Region 2. The evidence showed that the children enjoyed spending time there with their cousins.
I give weight to this consideration.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The different levels of attunement exhibited by each parent has affected their approach to opportunities to participate in decision making about major long term issues, communication and spending time with the children.
The mother’s Affidavit is replete with detailed evidence of her close and continuous involvement in decision making, communication and spending time with the children. I accept this evidence. This was not put in dispute by the father. The consent order for sole parental responsibility to be allocated to the mother, subject to the question of schooling, reflects this.
The father’s Affidavit gives evidence of his involvement in decision making, communication and spending time with the children. It is not necessary to refer to this in detail. It also shows a reasonably close and continuous involvement in decision making, communication and spending time with the children. However, the father’s general level of attunement has meant he has been less involved than the mother overall.
I give weight to this consideration.
(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 both parents have fulfilled their obligations to maintain the children.
I give weight to this consideration.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents;
(ii) or any other child, or other person (including any grandparent or other relative.
There are a number factors which are relevant to this consideration, namely, relocation to the Region 1, the possible separation of the children from the father’s extended family and the presence in the father’s household of Ms J and her children.
The mother proposes to relocate to the Region 1.
The question of relocation is affected by the allocation of parental responsibility, which is itself affected by consideration of the best interests of the children. I will therefore defer consideration of relocation until I have dealt with the allocation of parental responsibility, and in particular, the presumption of equal shared parental responsibility.
I take account here of the fact that while the mother lives in the Suburb B home and the father lives in the Suburb C home, the parties are reasonably proximate. At paragraph 73 of her report Dr H said:
The mother’s current home environment in Suburb B and the father’s home environment Suburb C have the advantages of proximity to supportive extended family on both sides – including Mr Ebden’s older brother (Mr D) who is the father of [Y]’s favourite cousin, [C], and Ms Ebden’s sister Ms R (Ms R) the mother of cousins [D] (16) and [E] (14) who are also close to [Y] and [X]. The parents’ homes are 30-40 minutes’ drive apart.
As already noted, Ms J, as the father’s new partner, will feature in his household. This is a significant change for the children, although they seem favourably disposed towards her. There are other complications involving Ms J to which I will return below.
Ms J has two children of her own, [A], aged 8 years, and [B], aged 7 years. [A] has been diagnosed with autism. At present, she spends time with her children on supervised basis only. I discuss this further below. In the interview with Dr H, Ms J expressed the hope for equal time with her children but thought it more likely that they would spend every second weekend and half holidays with her (paragraph 34).
At paragraph 74 of her report Dr H said:
Nothing emerged from this assessment to suggest the father’s home would not be a suitable environment for weekend and holiday visits, although I would be concerned about the likely tensions arising if Ms J’s children visited on the same weekends as [Y] and [X]. An autistic child is demanding enough, without the additional demands of three other children – particularly if one of them was disgruntled about being there (as [Y] might be). On the other hand, I would expect [Y] to gladly accompany her father to Region 2 or any venue or family event which her cousin [C] would also attend.
In her oral evidence, Dr H was very clear that having all four children together in the father’s home on the same weekend was “a very bad idea.” She held this view because the children already have difficulties around time with their father and competing for his time with other children would be likely to create additional complications.
The father seemed to be oblivious to the implications of Ms J’s children for his own. The mother tendered a number of individual therapy notes from (omitted) Centre dated between November 2015 and June 2016 (Exhibit A7). In a summary dated 2 June 2016, the treating clinicians, Dr F and Ms M say the boys “were referred to (omitted) Centre following concerns for their emotional wellbeing and development following a contact visit with their biological mother” and both boys “expressed positive associations with all family members…however when their biological mother was introduced, there was clear evidence of distress in both boys.” The notes disclose that both boys struggle to express themselves verbally, and that [A] falls on the autism spectrum.
The father was asked in cross examination whether he had given consideration to how the presence of Ms J’s children would impact on his household. He said had “no issue” introducing them to his household. This evidence shows a troubling lack of insight on the part of the father into the needs of his own children, and the impact upon them of a change of circumstances by which they spend time with their father in a household which includes Ms J’s sons.
I give weight to this consideration.
(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;
At present there has been no practical difficulty in the children spending time with the father. The mother lives at Suburb B and the father lives at Suburb C. The travel time by car between the two residences is approximately 30-40 minutes.
However, if the mother is permitted to relocate to the Region 1, travel time will increase significantly, to approximately 1-2 hours. I will return to this question below.
I give weight to this consideration.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that each parent has a reasonable capacity to provide for the needs of the children. This was not seriously in dispute. The mother has a better capacity overall, for reasons given above, including her greater empathetic attunement.
The father’s lack of attunement has compromised his capacity to provide for the emotional needs of the children. I refer also to the discussion above about changes of circumstances involving Ms J’s children.
I give weight to this consideration.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
I have already described the relationship of the children with Mr P. On the evidence, I am satisfied that Mr P has the capacity to provide for the children.
I have already described the relationship of the children with Ms J, and touched on her relationship with her own sons. However, her capacity to provide for the needs of the children became a matter of some contention in this matter. The mother argued that Ms J will be present in the father’s home when the children are living with him and it became clear in cross examination that the father will rely upon Ms J for assistance in caring for the children, sometimes by collecting them from school or at home, and this reflected poor decision making. As already mentioned and discussed later, the mother seeks a restraint in relation to Ms J. The mother argued that since Ms J suffered mental health problems in the past and had supervised contact with her own children pursuant to final consent parenting orders, her parenting capacity was in serious question and she posed an unacceptable risk to the children.
As already noted Ms J participated in the interviews with Dr H. It is therefore helpful to set out at some length the following comments of Dr H about Ms J (paragraphs 33-35):
Ms J (29) presented as a slender attractive dark haired woman of olive complexion. She was normally oriented to reality, fully alert and showed no signs of being substance affected. She was polite, friendly, emotionally calm, logical and coherent. She expressed affection for the girls and willingness to support whatever arrangement was agreed to be in their best interests. She stressed that she does not see herself as a parent figure who can participate in decisions about their future but is more like a big sister to them. Ms J works in (employment omitted). Her hours permit her to be available for the girls after school if needed. She enjoys weekends at Region 2 as she loves the bush. Ms J said she offers the children assistance with the homework as required and talks to them about their feelings if they seem obviously upset or worried. She was aware of the bullying.
Ms J has two children from her previous relationship, [A] (8) who is autistic and [B] (7), subject children in family law proceedings which has been running for 2.5 years but which she hopes will be settled at the end of this year. Currently she spends only supervised time with her children. She would like to have 50-50 care but thinks that it is more likely that her children will come to stay with her every second weekend and half the holidays. She acknowledged that there might be some settling in difficulties when the four children were all together at the house at the same time but considered that as [X] is a very sensitive, caring girl and protective of children who seem vulnerable, she would take a shine to [A] (noticing his special needs) and that [Y] is a very active outdoors child so would be compatible with [B] who is of the same kind.
Ms J seemed to have a realistic and sympathetic understanding of the challenges [X] and [Y] have faced with bullying and has been kindly responsive to them. The examples she gave about advice given to them when they were distressed, particularly [Y], seem to be sensible, kind and measured.
I have referred above to the material produced by (omitted) Centre (Exhibit A7). Dr H was not shown this material. There was some concerning evidence in this material about Ms J and her own children:
a)The therapy notes dated 26 April 2016 record that when Ms J’s name was mentioned to [A] he appeared “anxious and hyperaroused” saying a number of things in an aggressive tone, including “Ms J hurt [B]”, “Ms J hurt [B] and me”, “I punch Ms J in the stomach” and when asked if he would be ok seeing Ms J “he said ‘no’ in a loud voice, almost a yell”.
b)In addition to the excerpts set out above under s.60CC(3)(d), the summary report dated 2 June 2016 recorded the following:
a)“[A]’s distress was particularly intense and he also made disclosures around being hurt by [Ms J] and expressed fear around the possibility of this occurring again. Both boys also presented as distressed when attempting to explain their past contact visit with their biological mother.”
b)A highly controlled contact with Ms J was organised for a brief period of time, supported by their primary caregiver (their father) and a clinician, “to ensure the contact is tolerable for them.” This contact was positive, but largely because it was “highly controlled and staged.”
Surprisingly, the father made no mention of Ms J in his Trial Affidavit, even though it was sworn several months after Dr H’s report. His oral evidence was to the effect that Ms J had good parenting skills. The father conceded that final parenting orders have been made by consent requiring supervision of Ms J’s time with her own children. The father gave evidence that he did not know the basis for the supervision. He accepted that Department of Family and Community services had been involved with Ms J and her children, but did not know when. He agreed in cross-examination that it was important for him to know what Ms J did with his children, but said he had not asked her. He was asked to agree that it was important for the court to know how often Ms J appeared in his household to which he answered “I can’t see that.” He gave no Affidavit evidence about the role of Ms J in his household. He agreed that in January 2017 she had a conviction in the Local Court for driving without a licence, which shocked him. He agreed she had some mental health issues, and agreed he knew of one occasion when Ms J had attempted suicide (confirmed in Exhibit A8). However, the father said Ms J was “a great mum.”
I found the father’s evidence about Ms J unconvincing. His limited knowledge of Ms J’s circumstances, as portrayed by him, seems unlikely but if true demonstrates a level of wilful blindness to issues which could significantly affect his own children.
Ms J was not called as witness by the father.
So the court is left in the position that although Ms J presented favourably to Dr H, there is clear evidence she has had mental health problems, and there is a court ordered requirement for supervision governing her contact with her own children. There is clear evidence that Ms J’s own children have had a very troubled relationship with her in the past. The same evidence raises the inference that there may have been violence involved and her children clearly have held some fears in relation to her as recently as June 2016. Despite this, no evidence has been placed before the court about Ms J’s current relationship with her own children, or endeavouring to explain the troubling reactions of her sons to their mother.
The mother also submitted that the rule in Jones v Dunkel (1959) 101 CLR 298 should be applied such that an inference should be drawn to the effect that not only would Ms J’s evidence not have assisted the father’s case, but it would have been adverse to his case.
The inference potentially available is that the evidence of Ms J would not have assisted the father’s case, not that her evidence would have been positively adverse. Heydon J, in a separate judgment in ASIC v Hellicar (2012) 247 CLR 345 at [232] said of the rule in Jones v Dunkel that:
“two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party.”
The conduct of a party witness to deliberately withhold evidence or to fail to comply with the duty of a witness to tell the whole truth may operate as a finding that there had been an admission that the uncalled evidence was positively adverse: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, at [64]. Although the mother submitted in effect that the father did withhold evidence about Ms J, she did not submit I should find there had been an admission of the type identified in Kuhl. Such a conclusion would entail findings about the father’s credit.
The mother submitted that it was not necessary to make credit findings. I accept that submission. I adopt with respect the dicta of Kent J in Carlson & Fluvium [2012] FamCA 32 at [165] to [169], to the effect that civil courts usually refrain from specific adverse credit findings against litigants “if disposition of the case can legitimately be achieved otherwise”. Where litigants will have to co-parent for many years “adverse credit …carry the inherent risk that…they may be embraced as vindication for the pursuit of further conflict in the future.” I also follow the caution of the Full Court of the Family Court of Australia (“the Full Court”) in Adamson & Adamson (2015) 51 FamLR 626 at [90]: “…in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issue joined between the parties but should be soundly based…”
It must also be borne in mind that the scope for the application of the rule in Jones v Dunkel in parenting proceedings has been described as “limited”. In Murdock & Madden [2011] FamCAFC 219 the Full Court said the following about the application of the rule in Jones v Dunkel in parenting proceedings:
[69] But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until “enough has been proved to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
[70] The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case.… The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.
[71] As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful...
There is scope for the operation of the rule in this case. I do not think recourse to it here is unhelpful. The evidence discussed above concerning Ms J and her own children and her mental health problems was sufficient in my view to found its application. This created “the forensic need to answer, explain or contradict.”
The presence of Ms J in the domestic circumstances of the children when in the care of their father was a matter about which she could have given evidence. No evidence was lead which might explain why Ms J could not give evidence in the father’s case. She was in fact present in court throughout most of the trial. Her failure to give evidence is unexplained.
It is part of the father’s case that Ms J would not pose any risk to the children. The authorities make clear that a Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse (M v M (1988) 166 CLR 69). The “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm. (In the Marriage of A (1998) FLC 92-800). It requires an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable; the court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to the ordinary civil standard: Johnson and Page [2007] FamCA 1235; (2007) FLC 93-344, at [68].
The difficulty here is that the nature and degree of any risk cannot be precisely identified. That is because, although there is sufficient evidence to justify inferring the existence of a risk, the person, Ms J, who could have given direct evidence about its nature and degree was not called. However, in my view, the evidence disclosed in the material from (omitted) Centre, together with evidence of supervision of Ms J’s time with her own children, supports an inference that Ms J posed an unacceptable risk to her own children requiring supervision. In the absence of any evidence from Ms J neutralising this inference, I draw the further inference with greater confidence that Ms J may pose an unacceptable risk to the children the subject of these proceedings.
The benign, indeed positive, comments by Dr H about Ms J and positive attitude of [X] may be some evidence which would militate against drawing the inference. Dr H’s report notes the fact that Ms J was only having supervised time as at the date of the family report interviews. However, it is also true that these were interim orders and Ms J’s final parenting orders were only made after the family report.
In questions by the mother, Dr H said Ms J did not disclose her attempted suicide. She said such an attempt showed a degree of emotional instability. Dr H also agreed that the father appeared to be minimising problems and was not being forthcoming about Ms J. She thought that Ms J could not have told her the reason for supervision because she made no note of it.
The father put a number of Ms J’s medical records to Dr H orally. She was asked in effect whether someone who had suffered a history of domestic violence may attempt suicide. Dr H said she would be concerned whatever the reason for supervision.
More importantly, none of the (omitted) Centre material was considered by Dr H.
In summary therefore although Ms J presented well in the interviews, Dr H was not put in full possession of all relevant information, and was concerned about supervision for whatever the reason. Her positive opinion about Ms J has limited weight for that reason.
At the very end of the evidence on the last day of hearing, the father sought to reopen and tender a report concerning Ms J. The purpose was to lead evidence which might rebut any inferences about Ms J and her parenting. The report was a medico-legal report authored by a Dr R of Hospital. It was prepared on 29 November 2016 at the request of Regency Lawyers, the father’s firm, for the purposes of Ms J’s own parenting proceedings. It was common ground that the report was based solely on information provided to the author by Ms J. It was not a report based on interviews with the children or other material in Ms J’s parenting case. Counsel for the mother objected. I rejected the tender. My reasons are as follows.
Part VII, Division 12A of the Act applies to parenting proceedings. S.69ZN sets out five principles for the conducting child-related proceedings. These include consideration of the “impact that the conduct of the proceedings may have on the child”, the active direction, control and management of the conduct of the proceedings, and that “proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.”
S.69ZT of Division 12A of the Act excludes a number of provisions of the Evidence Act1995 (Cth), from application to such proceedings.
Despite this less stringent approach to admissibility, there are several reasons why the report should not be admitted. First, s.69ZT does not remove the requirement that evidence, to be admissible, must relevant: s.55 of the Evidence Act1995 (Cth). There is no evidence of the role the report played in Ms J’s proceedings. All that is clear is that, despite its existence, Ms J entered into parenting orders by consent, which imposed supervision on her time with her own children. In those circumstances it is difficult to see how any view could be formed about whether or in what manner the report related to Ms J’s parenting capacity and the ultimate orders for supervision, if at all. The best person to explain that supervision, and parenting capacity, would have been Ms J herself. Secondly, the mother had no opportunity to cross examine the author or Ms J. Therefore neither the factual assumptions upon which the report was based nor the opinions expressed could be tested. In those circumstances, it is difficult to see how any weight could be attributed to the report, meaning its probative value was so low as to render it irrelevant. Even if the report was slightly relevant and satisfied s.55 of the Evidence Act1995 (Cth), it would be unfairly prejudicial to the mother, and appropriately excluded pursuant to s135 of Evidence Act1995 (Cth). S.135 is in Part 3.11 of the Evidence Act, which is unaffected by s.69ZT of the Act. Inability to cross examine on evidence has been recognised as a basis for concluding that evidence may unfairly prejudicial: Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [82]. Thirdly, the father sought to support the report’s relevance as evidence informing his positive view of Ms J’s parenting, and thus answering an argument of the mother that his reliance on Ms J showed poor parenting decision making. But there was no evidence the father had ever read the report. It was not tendered through him in oral evidence. Finally, the late tender was procedurally prejudicial to the mother, and likely to produce delay. As well as being tendered in circumstances which denied the mother any prospect of testing the report, the proceedings had already been protracted through being part heard, and if the tender was allowed, procedural fairness to the mother may have required an adjournment and additional hearing time to enable her to deal with it. This raised the real risk of further delay.
The father sought to ameliorate any prejudice to the mother, and thus support admissibility, by submitting that the report had been produced under subpoena issued by the mother. He also submitted that Dr H referred to the subpoenaed material at paragraph 61 of her report. However, neither argument is compelling. The fact that the mother issued the subpoena under which the report was produced of itself takes the matter no further. Until the father sought to tender the report, the mother was presumably unaware of his intention to rely upon it. Further, Dr H did not sight the subpoenaed material in which the report was located, or the report, she merely noted its existence. None of it was put to her orally.
For those reasons I rejected the tender.
Of course Ms J may now have satisfactory parenting capacity. Whatever problems existed in the past for her may have been overcome. However, in the absence of any evidence from Ms J, I could not form any view about these possibilities.
I draw the inference, unfavourable to the father, that Ms J’s evidence would not have assisted his case and she may be an unacceptable risk to the children.
(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.
No submissions were addressed to this specific consideration. I refer to the discussion above concerning the maturity of the children. I have nothing to add here.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
On the facts of this case, this consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has demonstrated a responsible and committed attitude to parenting. Aspects of this have been referred to in my reasons already.
Additional material is as follows. Dr H noted that correspondence between the mother and School G suggests the mother was diligent in liaising with the about her children’s welfare “including her concerns about the impact on them of the shared care arrangement and of events leading to this dispute”.
I am satisfied that the father has demonstrated a committed attitude to the responsibilities of parenthood. However his lack of attunement, and at times wilful blindness to significant issues for his children, discussed above, has resulted in a careless attitude at times.
I give weight to this consideration
(j) any family violence involving the child or a member of the child's family;
I have nothing further to add beyond the discussion above in connection with s.60CC(2)(b).
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
On the facts of this case, this consideration is not relevant.
(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
It would be preferable to make orders which are least likely to lead to further proceedings. The children need to be released from the burden of being the subject of court proceedings now and in the future. I am satisfied the proposed orders have a good prospect of achieving this goal.
I give weight to this consideration.
(m) any other fact or circumstance that the court thinks is relevant
I have nothing to add in relation to this consideration.
Parental Responsibility
The Full Court of the Family Court of Australia’s decision in Goode & Goode [2006] FamCA 1346; [2006] FLC 93-286, and s.61C of the Act, together make clear that, unless displaced by Court order, the parties’ parental responsibility may be exercised either jointly or severally.
As already noted above, the parties seek an order by consent that the mother have sole parental responsibility. However, the father seeks an order staying any such order pending determination of the secondary schooling for the children. This appears to mean that the father in truth seeks an allocation of equal shared parental responsibility in relation to schooling.
However, before any question of sole parental responsibility can be addressed, the presumption of equal shared parental responsibility needs to be dealt with. In the circumstances of this case, the question is whether the presumption is rebutted for the purposes of s.61DA(4), that is, having regard to the best interests of the children, as analysed earlier in these reasons.
S.61DA(4)- The Best interest of Children
I have had regard to the general framework of principles regarding parental responsibility, articulated by Murphy J in the frequently cited decision of Lansa & Clovelly [2010] FamCA 80, at [136]-[146] and Chappell, above, at [75] and [76].
Based on my assessment of the considerations in ss.60CC(2) and (3), there is evidence which satisfied me that it would not be in the best interests of the children for the presumption to be applied, such that the presumption is rebutted pursuant to s.61DA(4). The evidence discloses long running and high distrust between the parents.
I also take account of the fact that Dr H expressed clear views antithetical to equal shared parental responsibility:
a)At paragraph 65: “Shared care was a disastrously inappropriate arrangement for these parents and children…Their parenting approaches are so different that smooth collaboration would have been difficult even if they had remained married.”
b)At paragraph 85: “There is no realistic prospect that these parents can ever make decisions jointly which will serve their children’s best interests.”
c)In her oral evidence, Dr H said she saw no prospect of a collaborative co-parenting relationship improving in a time frame meaningful to the children, and that the children are being adversely impacted by parental conflict.
Accordingly, I find that the presumption of equal shared responsibility is rebutted in this case.
However, the order for sole parental responsibility proposed by the father is problematic for two reasons. First, if an order allocating sole parental responsibility to the mother is stayed, no order allocating parental responsibility would be operative until the stay is discharged, until that time the parties would continue to have joint and several parental responsibility: s.61C of the Act. Secondly, the father proposes that the stay operate until the parties agree on secondary schooling. As already indicated the prospect of the parents making such a joint parenting decision are very low. I do not propose to make the order for parental responsibility sought by the husband.
The mother’s proposed order is preferable and picks up the wording in the definition of major long term issues in s.4 of the Act.
For these reasons, and to avoid such consequences, I will make an order for sole parental responsibility in favour of the mother, but specify that such responsibility is for major long term issues.
Live with the Mother
An order has already been made by consent for the children to live with the mother.
Time with the Father
No order will be made for equal shared parental responsibility. Consequently, s.65DAA(1) of the Act does not apply.
I note that even if there is no order made providing for equal shared parental responsibility, the decision in Goode & Goode (supra) makes clear that the concepts of “equal time” or “substantial and significant time”, in the best interests of the child, remain relevant.
There is no dispute that the children should spend time with the father. The difference between the parties comes down to a fortnightly regime, argued for by the father, or a three week regime argued for by the mother.
This is dependent upon the question of relocation, to which I now turn.
Relocation
The principles relevant to relocation have been considered many times. In particular in Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 at [79], Boland J said:
In considering whether the child should live with the parent who proposes to relocate a court:
o Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
o Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
o Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
o If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
o In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
o When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
o Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
Further at [80], Her Honour said:
It follows from my exposition of legislation that earlier core principles:
- that the child’s best interests remain paramount, but not the sole consideration;
- that a parent wishing to move does not need to demonstrate compelling reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement;
remain valid.
At [83] Her Honour noted that cases before the introduction of the present statutory regime generally applied principles enunciated in Cowling v Cowling (1998) 22 FamLR 776, and:
…particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
At [85] Boland J made clear the decision in Goode (supra) held the current legislative pathway had changed the applicable principles:
In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph.
Her Honour applied the following paragraphs from Goode (supra):
71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
The decision of Boland J in Morgan has been cited as a correct statement of the law and followed many times: see, for example, Malcolm & Monroe and Anor [2011] FamCAFC 16; [2011] FLC 93-460 at [107].
In Sayer & Radcliffe & Anor [2012] Fam CAFC 209 at [47] the Full Court of the Family Court of Australia observed:
It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents ... It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)
As already noted, both children are enthusiastic about the idea of relocating to the Region 1. Dr H gave her views as follows [79-81]:
Since the mother is the children’s secure base in the world and their mainstay, a living arrangement likely to bring her comfort and joy is to be preferred to one which causes her sorrow or pain since happy mothers with supportive partners are more emotionally-available to their children than unhappy, single mothers. It will also be easier for the children to move between two homes than three. The mother’s proposal for the children’s change of schools has nothing against it except the increased distance between the parents’ households and the households of the mother and close relatives. The distance is not so great as to rupture those relationships, however. The children are enthusiastic about the move and the facilities as described seem adequate for their needs. There are no other household children to compete for parental attention, material want is not an impediment and they are fond of Mr P. [X] and [Y] both welcome the chance to enter new peer groups and make new friends.
[X] will cope adaptively with a change of residence and a change of school, and she would probably also manage if she stays at School G. There is no reason to predict adverse effects as a result of changing schools, if the right educational placement is found for [Y]. School F may be the most convenient, and most affordable choice. School H is another option to consider. School H has the Arrowsmith program to assist children with SLD, which may be suitable for [Y] (cf website for selection criteria. I understand there is a School H bus for children who live south of Region 3 (terminating in Region 4?) One possible benefit of School H enrolment would be that collecting the girls after school on a Friday would be more practicable proposition for Mr Ebden coming from Region 4. In high school years [X] and [Y] would be able to take the train to meet their father at some intermediate point such as Suburb 3 or Suburb 4. There may also be School H school buses heading north.
Mr Ebden is afraid that if he accedes to the mother’s request to relocate his time with the children will progressively lessen because the children will find the travel to weekend visits irksome. That is a real possibility if the road trip increased from 30 to 90 or 120 minutes. “The benefits to the second attachment relationship of frequent contact can be challenged and even outweighed by stressful execution of the contact, such as frequent or long distance travel to reach the second parent, and conflict between parents” (Dr J McIntosh, Family Court Review, 49, no 3, July 2011). While distance might impede contact at the frequency Mr Ebden desires, it is arguable that disunity between the parents, and the impact of an unsuitable shared care arrangement, has already eroded the benefit of the secondary attachment to the children such that relocation is not now the main threat to that family tie. Mr Ebden worries about losing the chance for a close relationship with his children. However, if he opposes the relocation only for that reason he is closing the stable door after the horse has bolted
I take account of Dr H’s view that [Y]’s enthusiasm for relocation was driven by unrealistic expectations and rosy expectations (paragraph 82). It was put to Dr H by the father that this was a form of “magical thinking” and if the father participated more in the children’s lives this would be fixed. Dr H rejected this.
It is true that there will be greater practical difficulty in the children spending time with the father if relocation takes place. I have discussed the proximity of the parties’ current residences above. However, such difficulty is not insurmountable. Appropriate practical arrangements can be made to enable the children to spend time with the father, even if they relocate to the Region 1.
The father expressed to Dr H the fear that if relocation was permitted his time with the children would be progressively lessened because they would find travel time “irksome”. (paragraph 81). In submissions he reiterated his concerns about the practical difficulties, loss of friends, and a fear of being excluded from extracurricular activities. But as Dr H said in her oral evidence the quality of the spend time arrangement depends on the quality of empathetic attunement of the parent, which the father lacks.
The evidence shows that both children expressed a concern that relocation to the Region 1 would mean separation from or less time with their paternal cousins. However, the proposed orders provide for time with the father which in turn will give the children opportunity to maintain contact with their paternal family.
If the time with the father is limited to one weekend each month, the travel time can be accommodated.
In her report and in her oral evidence Dr H made a number points supportive of relocation:
a)The mother is the primary care giver and anything which “makes their mother happier and her life easier will assist” the children paragraph 72.
b)At paragraph 87 she stated “There is no reason to oppose relocation out of concern that the father-children closeness will be lost-because the harm has already been done. Repair is needed”
c)If relocation is refused, the children would likely blame their father and this could damage their relationship with him irreparably. Dr H expressed great concern that if that happened the children would lose their relationship with the paternal family. She made the point that there is “No coming back from total alienation or estrangement including with all kith and kin.” I note that in cross examination the father accepted that if he prevented relocation this may affect his relationship with the children.
d)In relation to [Y], Dr H said it would be “much better” if she was with her mother in one place and her father at regular intervals; [Y] needs controlled exposure to her father.
I take account of the fact that on the evidence there is presently not a particularly settled regime of time spent between the parents. The evidence shows there has been a lengthy period in which the children have been suffering anxiety in relation to their father, and they see him as source of stress, as Dr H pointed out in her oral evidence.
I also take account of the agreement of the parties for sole parental responsibility to be allocated to the mother, subject, on the father’s part, to the question of schooling.
Overall I am satisfied it is in the best interests of the children for the mother to be permitted to relocate to the Region 1. It is likely to have a positive impact on the relationship between the father and the children in the longer term. It is also likely to benefit the children by enhancing the mother’s capacity to parent.
This conclusion has a material impact on the appropriate time spent arrangements with the father.
The father’s proposal for time spent is not supported by the expert evidence. In her oral evidence Dr H made clear that mid-week time was totally inappropriate if relocation was allowed. She also emphasised that transitions were a problem for [Y]. She pointed out that the children were pre-adolescent and would be developing more commitment to their friends. If time with the father interfered with this, it was likely to increase their resentment towards him.
In my view the mother’s proposal for term time is in the best interests of the children. As the mother pointed out in submissions, the difference between the parties did not amount to a great deal of time, being 5 or 3 weekends respectively.
The question of school holidays is more difficult. The father seeks half of each school holidays. The mother proposes one block of two nights in the Term 1, 2 and 3 holidays progressing to three nights in 2019 and two, two night blocks, in the Christmas holidays.
In all the circumstances, the proposal of the mother is too limited. As noted, the children have positive experiences at the father’s family property at Region 2. Longer periods of time in the holidays will give greater scope for holidays with paternal family cousins, and generally more contact with the father.
I turn then to the question of schooling. The leading authority is the Full Court of the Family Court of Australia’s decision in Re G. (2000) FLC 93-025. This decision has been followed many times. In Bilz & Breugelman [2013] FamCA 578 at [81]-[83] Austin J said:
[81] Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66]-[68]).
[82] That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]). While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).
[83] There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]-[90]; Eden-Proust at [69]).
The children currently attend School G. The father wants them to remain there.
There was no dispute that School G has been a very good school for the children. The mother proposes that they be enrolled in School F, consequent upon her relocation.
The mother has made enquires of the school and its curriculum. The father has not. He simply has not turned his mind to it. The father agreed in cross examination that there wold be no impediment to him paying half the fees for School F as he is presently paying half for School G.
In my view, the children should attend School F. Since the mother will have sole parental responsibility, and the children primary residence will be with the mother, a school close to her residence is appropriate. I do not ignore that greater inconvenience to the father in participating in the school life of the children, but there would be even greater inconveniences and difficulties for the children if they lived in the Region 1 but remained at School G.
Restraints & injunctions
I refer to my conclusion about the position of Ms J.
The mother seeks a restraint on the children being in the presence of Ms J unless the father is present as well. The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627.
As set out above, I have drawn the inference that Ms J may pose an unacceptable risk to the children. Because of her failure to give evidence, I am unable to identify the nature and extent of the risk. However, the evidence is clear that the safeguard applied in respect of Ms J’s own children was supervision. I am satisfied that the same safeguard should be applied in these proceedings.
Restraint orders have already been made by consent in relation to two other individuals. Mr R is the mother’s brother. During the relationship, he was charged and convicted with a number of child pornography offences. A consent order has been made restraining the mother from permitting the children to be in his presence unsupervised. Mr M is the brother of the father. He has been incarcerated for offences relating to the supply of heroin. In cross examination the father was unclear whether Mr M may be present when the children would be in his home. There was some evidence in the notes of Ms E that [X] was fearful staying in her father’s home when Mr M was present. An order was made by consent restraining the father from permitting the children to be in the presence of Mr M unsupervised.
Overseas Travel
As noted above, the father seeks an order permitting overseas travel. This was added to his proposed final orders late in the hearing. There was no evidence about overseas travel from the father. The mother was not asked about overseas travel in cross examination. The father’s proposed order would result in periods of separation from the mother for two weeks. In light of the orders for time spent with the father and the order for equal shared parental responsibility, in the absence of a specific proposal for travel, I do not propose to make any orders permitting overseas travel at this time.
I note here that the mother also seeks an order giving her the discretion to suspend time with the father on no more than one occasion per year to enable her to holiday with the children. I do not propose to make such an order. The level of distrust and friction between the parties may well be exacerbated by such an order. More importantly. The children need a clear stable regime into the future. The order proposed by the mother, if she exercised her discretion to suspend time, may have the effect of creating destabilisation. The orders are the children should be able to move forward with a clear and settled framework.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am is of the view that the orders as set out at the commencement of these reasons are in the best interests of the child and accordingly, will so order.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 1 June 2018
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Expert Evidence
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Consent
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