Edmunds and Bolwell

FAMILY COURT OF AUSTRALIA

EDMUNDS & BOLWELL

[2007] FamCA 675

FAMILY LAW - CHILDREN - With whom a child shall live - Relocation - Best interests of the child

Family Law Act 1975 (Cth)

Godfrey & Sanders [2007] FamCA 102
M & S (formerly E) [2006] FamCA 1408

APPLICANT:

MS EDMUNDS

RESPONDENT:

MR BOLWELL

INDEPENDENT CHILDREN’S LAWYER:

JENNIFER HAMILTON

FILE NUMBER:

TVF

2326

2006

DATE DELIVERED:

10 July 2007

PLACE DELIVERED:

Townsville

JUDGMENT OF:

Monteith J

HEARING DATE:

16, 17, 18 May 2007 and 6, 7, 8 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-Represented

COUNSEL FOR THE RESPONDENT:

Mr Lynham

SOLICITOR FOR THE RESPONDENT:

Groves & Clark

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr White

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

J A Hamilton & Associates

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVF2326 of 2006

MS EDMUNDS

Applicant

And

MR BOLWELL

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is an application in which the mother seeks to relocate with the children of the relationship, C, born in January 1996, R, born in July 1999, K, born in April 2001 and T, born in November 2002 to the United States of America.
The proposals are contained in a Further Amended Application which was filed by leave on 16 May 2007 and a Further Amended Response filed by leave on 6 June 2007.
The mother in her Further Amended Application seeks in the alternative to an order for relocation that the children live with her and that after the father commence and complete a Parenting Programme the father spend time with the children on alternate weekends, special days and half holidays.
The father in his Further Amended Response seeks that the mother’s application for relocation be dismissed, that the children live with him and that the mother spend time with the children each alternate weekend, special days and half school holidays.
I tried the case on 16, 17 and 18 May and 6, 7 and 8 June of this year and at the conclusion of evidence I was asked by Mr White, of Counsel, for the Independent Children’s Lawyer to make orders prior to giving my reasons. This application was supported by Mr Lynham, of Counsel, for the father. The reason for the application was the weight of the evidence suggested that there was a risk to the children if I did not make orders immediately. I was persuaded that it was appropriate and necessary to make the orders before giving my reasons and so I made the orders as are hereunder set out.

Orders

1.All prior orders with respect to the children, C, born in January 1996, R, born in July 1999, K, born in April 2001 and T, born in November 2002, be discharged.

2.The children live with the Father.

3.The Father have sole parental responsibility for the children.

4.Each party be responsible for the children’s day to day care, welfare and development when the children are in each party’s respective care.

5.The children shall not spend time with or communicate with the mother for a period of 12 weeks from the date of these orders.

6.After the expiry of 12 weeks, the children shall spend time with the mother supervised at the M Contact Centre as can be arranged but for no more than 2 hours three times per week for a period of a further 12 weeks.

7.After the expiry of 24 weeks the children shall spend time with the mother unsupervised and as follows:
(a)Each alternate weekend from 3.00 pm Friday to 9.00 am Monday;
(b)One half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years;
(c)Mother’s Day from 9.00 am to 5.00 pm;
(d)Mother’s birthday and each child’s birthday from 1.00 pm to 5.00 pm when it is not a school day and from 4.00 pm to 6.00 pm when it is a school day;

8.The mother can communicate with the children by telephone at all reasonable times after the expiry of 24 weeks from the date of these orders.

9.The parties attend intensive family counselling, and shall ensure that the children also attend, as recommended by the Family Consultant appointed under s 65L of the Family Law Act1975.

10.Both parties shall refrain from denigrating the other party in the presence of the children and shall ensure that as far as possible the children are not brought into contact with persons who denigrate the other parent.

11.Each party shall keep the other informed of their residential and work address and telephone numbers.

12.The parties shall sign all necessary documentation to ensure that the children’s surname is recorded as the father’s surname and in default of any party failing to do so, the Registrar of Family Court of Australia at Townsville is hereby authorised to sign on their behalf.

13.An injunction issue restraining the mother from removing the children from the Commonwealth of Australia.

14.The parties are required to comply with these parenting orders as far as practicable, to be supervised by a Family Consultant appointed under s 65L of the Family Law Act1975.

15.Ms M, Manager of Child Dispute Services, Townsville Family Law Registry is appointed the Family Consultant under s 65L of the Family Law Act1975.

16.The Mother’s further amended Application filed by leave on 16 May 2007 is dismissed.

17.There be no order for costs.

18.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Having made the orders at the conclusion of the evidence I now give my reasons for making those orders.

REASONS

For present purposes it is, although not entirely common ground, sufficient for me as a matter of background to reproduce the chronology set out in the Joint Case Summary Document filed 11 May 2007.

CHRONOLOGY

… 1969	Birth date of Respondent Father
… 1973	Birth date of Applicant Mother
2 May 1992	Parties commenced living together
January 1996	C born
5 September 1998	Date of Marriage of parties
July 1999	R born
April 2001	K born
January 2002	Marital home purchased 100km west of Brisbane
November 2002	T born
23 August 2003	Parties separated Mother relocated with children to M, Queensland Mother and children move in with Mother’s parents Mother commenced telephone relationship with her partner
6 October 2003	Mother and children began independent living in M
November 2003	Matrimonial home sold by father and all assets sold by father and father retaining all proceeds
29 December 2003	The mother’s partner (stepfather) visited mother and children in Australia for first time (period 10 days)
1 May 2004	Mother visited stepfather in United States (period 2.5 weeks)
2 June 2004	Protection Order made in M Magistrates Court in favour of mothering respondent father’s absence after repeated adjournments following father’s failure to respond. Protection Orders in force until 2 June 2006.
15 July 2004	Mother’s Application for Final Orders filed
10 September 2004	Father’s Response filed
1 November 2004	Orders made by Federal Magistrates Court – residence/contact and property
11 December 2004	Parties divorce became final in father’s absence after failure to respond
21 December 2004	Orders made by Federal Magistrates Court – residence/contact and property after failure for father to communicate visit times with the mother. Supervised contact ordered 2 hours per fortnight at the Mackay children’s Contact Service.
11 February 2005	Orders made by Federal Magistrates Court – residence/contact and property – 2 hours visits per fortnight at the Mackay Children’s Contact Service.
18 February 2005	Mother’s Amended Application for Final Orders filed
21 February 2005	Orders made by Federal Magistrates Court – Family Report to be prepared
14 July 2005	Orders made by Federal Magistrates Court – Setting matter down for final hearing on 12 September 2005
5 August 2005	Father’s Amended Response filed
7 September 2005	Mother’s Further amended Application filed after securing counsel for final hearing
12 September 2005	Orders made by Federal Magistrates Court – property
15 September 2005	Orders made by Federal Magistrates court – residency/contact and property following respondent father’s waiver of property orders made. Telephone contact commence once a week between 6pm and 7pm Sundays Unsupervised contact commenced from 2 hours per week to 4 hours followed by overnight contact from 5pm Friday to 5pm Saturday each week with handover to be at the M Children’s Contact Service.
October 2005	D Insurance took possession of HI Ace Motor Vehicle, registration number … .
15 February 2006	Orders made by Federal Magistrates Court – setting down matter to be adjourned to 29 May 2006 for sitting in M
29 May 2006	Orders made by Federal Magistrates Court – setting down matter for final hearing on 31 October 2006
31 October 2006	Orders made by Federal Magistrates Court – setting down of matter to be adjourned until 6 December 2005 in Family Court Orders made by Federal Magistrates court – final orders made for property settlement
6 December 2006	Orders made by Family Court – residency/contact and setting down matter for final hearing

THE EVIDENCE

I made an order that the mother be allowed to read as part of her material an affidavit filed by her new husband, filed on 8 August 2005 notwithstanding that he was not available for cross-examination. I indicated that I would give the affidavit such weight as I considered appropriate having regard to the fact that the matters deposed to were untested.
The mother gave evidence that she married her husband on 11 September 2005. He lives in O, Illinois, a small town with a population of 4500 people which is approximately three hours by car from Chicago.
She had met him on the internet in a chat-room at or about the time of separation.
The mother’s husband came to Australia in December 2003 which was the first occasion that he physically met the mother and the children. He was here for a period of 10 days.
In May 2004, the mother visited her husband-to-be in the United States and was there for a period of two and a half weeks. She did not take the children with her. They were looked after by her parents.
The husband came to Australia to marry the mother in September 2005 and was here for a period of 10 days.
Consequently the children have spent a total of 20 days with the mother’s husband split into two periods of 10 days. The mother has in addition to that period of 20 days spent an additional two and a half weeks with her husband, although there has been communication by electronic means.
At the time of the trial it had been at least 20 months since she had seen her husband.
She gave evidence that when she married she was under the understanding that the father would allow her to relocate with the children to the United States of America.
There appears to be some justification for that view in that the matter came before Jarrett FM on 12 September 2005, the day after the marriage, and he refused to make an order allowing her to relocate with the children.
The mother’s husband does not financially support the mother and she gave evidence that he could not support her to the level of support that she presently receives from Centrelink.
She gave evidence that the children have not met her husband’s mother or any of his extended family. She did not know whether the children would be taught differently in the United States compared to Australia. That they had never lived in an area where it snowed and that sporting activities would be different in the United States to the sporting activities that they presently engage in in Australia.
She said that C, she believed, would adapt to the move but R would be a concern. He does not have any real friends in his own class and prefers to “hang out” with his brothers. She also said C has not made any solid friends.
She said although all the children’s names were registered on their birth certificates as the father’s surname, she had filled out enrolment forms for them at the school initially in the name of A, her maiden name, and then subsequently as her husband’s name, when she married him. She said she had not discussed this with the children’s father.
She said the children laugh at her when she tells them that their father loves them and when they return from spending time with the father they blurt out all the negative things.
She said she could not think of anything said by any of the children which was positive with respect to the father.
She said that she could not see any positives in the children staying in M and seeing their father.
She said the two older boys do not call their father “dad” but they call her “mum”. She said that they refer to her husband as their new dad or step-dad. She said that they sent a Father’s Day card to her husband but did not send one to their real father.
She said that she had a good relationship with her parents, who currently live in M and have for some time. She has a sister who also lives in M, but she does not have a good relationship with her and perhaps most surprisingly she said she had no friends in M even though she had lived in M for nearly four years.
Interestingly it can be seen that the children seem also to have no friends.
She said the children have not formed a close bond with her sister or their cousins but have formed a close relationship with their maternal grandparents.
She said that the father only wanted to see the children because he wanted to ruin her life and that she did not know whether the father had any real feelings for the children. She said that if I made an order for the children to live with the father she did not know whether she would be able to cope.
I found her to be an unreliable and unsatisfactory witness.
Both of her parents gave evidence and I found them to be honest and reliable. Her father said that they were in a good financial position and were prepared to pay the airfares to bring the children out once a year not only so the father could see them but so that they could see them. They were both fairly critical of the father but most of that related to what their daughter had told them.
The father and his partner, Ms F, gave evidence.
The father gave evidence that he was working doing a bread delivery run taking home $562 per week after tax and after child support. He said that he could easily keep the four children financially.
He and his partner currently have a three bedroom house but they would need a four or five bedroom house if the children were to come and live with them. He said that he should not have any trouble moving into a larger house or paying the rent. At the moment at his house there was his partner and her three children and a young baby that they had had together. The eldest of the children, J, was about to move out.
He said his relationship with the children was getting better. That he was their father and that they were his children and that they wanted to do things with him. He said that they go to the park and the beach and he displays affection towards them with hugs and kisses. He said that they had his emotional support and that he supported their social needs. He was worried that they did not seem to have many friends and he thought the mother had done a lot of damage to them. He said that if the children came to live with him they would attend the same school that they are presently attending.
He said that he went for 16 months without seeing the children but that was after the mother left A and moved to M which was approximately a thousand kilometres away. He said that he moved to M in October 2004 so that he could see the children. He said that if the mother was allowed to relocate to America he didn’t think he would see or hear from them again.
He said that he thought the children had been brainwashed against him.
Ms F, the partner of the father, gave evidence in support of the father’s present circumstances and supporting his application for the children to live with him. She seemed to me to have arrangements in place with respect to the parties’ children living with them. I formed a positive view of her. She said that she was a friend to the children and made the observation that they are lovely kids.
The other evidence, insofar as it is relevant, is picked up in the expert evidence.

EXPERT EVIDENCE

The first report was dated 31 May 2005 and was prepared by Ms L, a Family Consultant. She also gave evidence at the trial. Her Family Report was before Federal Magistrate Jarrett when he refused to make the orders allowing the mother to relocate and he partly relied upon Ms L’s opinion. In paragraph 49 of that report she said:
The writer’s observation of the dynamics of the relationship between the four children and [the father] was consistent with that reported by both parents. [The father] attributed the lack of bonding between himself, [K] and [T] to their age when the marriage ended and the length of time between then and his first supervised contact with them. He blamed [the mother] for [R] and [C’s] attitude towards him and by instructing them to avoid speaking to him. Based on the data as noted by the writer, there is credibility to [the father’s] claim. [R] and [C] were observed by the writer to be closely aligned with [the mother], and some of the claims made by [C] and [R], in the writer’s opinion, could not have arisen without influence from [the mother]. [The father] has similarly contributed to their attitude formation, although fails to recognise his own contribution to the alienation which has occurred, namely his history of violence towards [C] and lack of effort in attempting to maintain some contact with his children post separation.
She denied in cross-examination that she was supporting relocation.
Ms C, a social worker, prepared a report for the Independent Children’s Lawyer on 24 March 2006. Her conclusions were as follows:
[C’s] behaviour during the interview was of concern – his level of anxiety, his sense of sadness and isolation, his inability to form meaningful relationships with colleagues and significant others (eg teachers). It was my concern that [C] had absorbed the parental conflict in this matter, i.e. his mother’s desire to relocate to America to commence a new and better life and his father’s refusal to allow this to occur.
It appears that [the mother] is intent on achieving her objective despite never receiving any encouragement or make any progress in her legal attempts and that [C] is totally absorbed into this.
She prepared a further report in which her summary and conclusions were as follows.
The marriage of [the mother] and [the father] ended three years ago. Since that time, the children have lived with their mother and approximately twelve months ago resumed spending time with their father.
Unfortunately the acrimonious relationship that apparently existed within the marriage has continued, and possibly worsened, since separation. This is concerning when research clearly indicates that the ongoing conflict between two parents has significantly greater impact on the children than the initial family breakdown. It would appear that [C] is already displaying symptoms consistent with the impact of this conflict on him.
There is no reason why the assumption of shared parental responsibility cannot be made in this instance. [The father] appears to be an able parent willing to share the responsibilities of parenting his children. His ability to fulfil the parenting role is hampered by the ongoing conflict and his limited contact with the children. He is at a loss as to how he can affect positive change in his family.
[The mother] does not wish to share the parenting responsibilities with [the father]. [The mother] believes the only solution to her and the children’s difficulties in life is to relocate to a new life in America, with a new husband who is relatively unknown to the children and to exclude [her former husband] as the father of the children. [The mother’s] focus and energies are directed to this end. [The mother] displays an inability or unwillingness, and her past behaviours support this, to support, encourage or work to enhance the children’s relationship with their father.
It is difficult to predict the effectiveness of strategies that can be implemented to overcome the current dysfunctional pattern that exists within this family. Resolution of the conflict would have the greatest benefit for the children and counselling for the parents and mediation between the parents could assist if both parents, particularly [the mother], are able to become more child focused and to place their children’s needs above their own.
Counselling for the children, particularly [C] should continue. [C’s] presentation suggests that his future emotional and psychological wellbeing is at risk.

Ms C gave evidence before me and to deal with the issue of relocation first, at page 43 of the transcript she said in answer to a question from me:
HIS HONOUR: I take it that - - - ?---Generally.
- - - it’s your view that it’s not in their best interests?---To relocate. No I mean I think relocation is always difficult when you’ve got good relationship, but particularly difficult when you don’t have an existing relationship. So effectively if the children were to leave [M] their relationship with their father would obviously no longer exist. Whatever contact – and whatever relationship they have with him is obviously going to not exist because of the difficulties, so they’re not likely to be getting on the phone to have a chat to him and keeping him informed and likewise they being informed of – he being informed about them and they being informed about his life. So I think it would be particularly disadvantageous given that great relationships don’t already exist.
In relation to the more general issues that I have had to deal with her evidence ran over a number of pages. I will set out what I think are the relevant passages hereunder.
MR WHITE: Did you detect any alienation of the children’s affection from their mother – from their father as a consequence of anything that could be attributed to their mother?---Yes. And we spoke with [the mother] about that. We put to her, and I think I’ve referred to in my report, asking her to consider that her comments, her feelings about the father, would have an impact on the children. But she did not take that issue on board.
HIS HONOUR: What do you mean by that?---She didn’t feel that that was the case.
She wouldn’t accept that?---No, that’s right.
Is that what you mean?---That’s exactly right.
MR WHITE: Was there also, from your observations, evidence of vilification of the father by the mother?---In that [C] again did not have a high opinion of his father, talked about him in derogatory terms, did not refer to him as father in fact, was quite adamant that he referred to him as [his first name] and that his father was [the mother’s husband] in America and related more favourably, more warmly towards the family in America who he has never met.
And is alienation of affection vilification of a parent detrimental to a child’s development and progress into adulthood?---Yes, it is. Children get their sense of identity from their parents. In terms of their needs and their development it does have an effect and that was my concern with [C]. that that was already beginning to present itself in that anxiety and I was concerned for his – particularly his emotional health into the future. And actually presented [the mother] with information from Child and Youth Mental Health that day as well to alert her to the concerns that we had. And that was primarily the point of meeting with her that day, to share our concerns about the impact that the conflict was having on the children and particularly [C].
HIS HONOUR: Can you leave aside relocation for the moment? There is an issue about with whom the children should live. The father seeks that the children should live with him and the mother seeks that they should live with her. They have lived with her all of their lives?---Yes.
HIS HONOUR: What do you say about the impact on them of changing their living arrangements so that they – if I made an order that they live with their father. What would you say about that and if there were any risks for them in me doing that?---I think it would be fair to say there are risks. There are risks for them remaining with their mother at this point in time as well. But there are risks to remove them and place them with their father in terms of it’s agreed she has - - -
How would you – I take it that the risks of leaving them with the mother is this issue of alienation?---Yes. The pattern of behaviour continuing.
The risks of removing them from the mother allowing them to live with the father is the trauma involved in the - - -?---The adjustment and the separation.
- - adjustment?---Most definitely.
How do I balance that?---Two things I guess is - - -
In your opinion?--- - - - is [the mother’s] response to that and secondly [the father’s] capacity to parent and the support systems that hopefully he would have in place to support him in that process. So any adjustment which would produce necessarily a loss and grief reaction, so children as adults would display that in a variety of ways. They may in fact be very compliant and very easy to get on with initially, but we know with loss and grief there are many stages and they don’t work through them very well. Or they don’t work through them in a systematic way.
If she doesn’t change, then the concern would be that what has occurred in the past is going to continue to occur in the future and - - -
By that you mean?---That [the mother] will continue in her negativity towards the children’s father, will continue to not support and encourage the children to have a meaningful relationship with their father. That’s what has happened in the past. Unless she moves from that - - -
- - - that’s what is going to continue in the future.
If things don’t change from [the mother] then consideration should be given to the children living with their father.
So how do I balance the risks? The risks are that I leave the children with her and there’s a continuation of her attitudinal behaviour which is detrimental to the children’s relationship with their father, or I take the risk of removing them from their mother with whom they’ve been all their lives and then placing them in the care of the father and take the risk that the wheels fall off?---Yes.
Are you able to evaluate those risks in a way that I can use, which is the greater risk? That I leave them with mother, giving father alternate weekend contact, which seems to be what he is asking for and what she is offering, or that I remove the children from her and give them to the father: Which is the greater risk?---The risks we know that currently exist surround mum’s parenting of the children so leaving them with her. They are the risks we know about.
Yes?---If she continues in her current pattern of parenting them. My concern would be if she continues, that even seeing the father alternate weekends is still going to be affected by that ongoing alienation towards the father. So that’s where it comes back to her capacity - - -
MR WHITE: Your Honour, thank you. [Ms C], you’ve spoken about the risks to the children if they are relocated and have residence with their father. Could their adjustment difficulties, consequent upon that, be assisted by counselling?---Definitely.
If residence was relocated to the father, have you considered – and you’re obviously concerned about the level of hostility and the alienation and the vilification issues, would supervised contact to the mother for a period of time to be of any assistance in enabling the adjustment to take place?---Well, that’s certainly to be seriously considered. My concern would be if they moved to dad’s and they were still having contact with their mother, and I don’t believe that contact should ever be terminated.
No?---That again back to [the mother’s] response. If she is very upset about this then she would continue, perhaps, to share that anger with the children, so certainly supervised contact would be one way of the children and mum having contact - - -
Give me a timeframe?---I can’t give you a timeframe. I don’t – I would be plucking a figure, it wouldn’t be based on anything. I don’t know how long these children are – that it’s all going to take.
Well, I can’t make an order for supervised contact – I mean I can, but I’m not going to, indefinitely?---No, certainly not. But I mean - - -
So we’ve got to be talking three months or six months or 12 months at the absolute outside and I’ve be very reluctant - - -?---I wouldn’t like to see it go that long either.
Sorry?---No, I wouldn’t like to see it go that long either.
So pick, three or six?---Is this weekly contact?
Yes?---Three months.
Yes, Mr White.
MR WHITE: Your Honour. So far as the hostility, alienation and vilification affecting the children’s relationship with their father, I think you’ve referred to that, what effect is it likely to have on their general emotional development?---The vilification of the father?
Yes?---I think it does impact and I guess we’re seeing that in terms of their behaviour at school and things like that and [the mother] commented as well that she was having difficulty managing their behaviour.
Is this going to continue so long as they are subject to that - - -?---One would assume so.
- - influence from their mother?---Yes. I guess until they reach a degree of independence from both parents really, in which case we’re looking - - -
HIS HONOUR: That’s a long way?--- - - - beyond adolescence.
Yes, it’s a long way off?---Yes, it’s beyond adolescence. And getting through the traumatic adolescent period. I would think that we would be very concerned about that.
MR WHITE: All right. Now, you’ve also spoken with the father and about his parenting interest. Tell his Honour about your observations there and how you saw him as being willing to participate in joint parenting?---We – actually that’s true. We did propose – in meeting with him, he presented, as my report said, as very concerned about the children. He presented as appropriate in his concerns in caring about the children, and that was my first and only meeting with [the father]. He could articulate why he thought he needed to have a relationship with the children and why it was beneficial for a child to know their parents. He was very concerned about the children and about how he felt they were confused and that was impacting on their behaviour, so he certainly had found the children, particularly [C], very demanding. And that again is understandable in view of the ongoing conflict. He - - -
Did he feel that he had an entitlement to residence of the children?---Not initially, no. I don’t think that he did.
Tell his Honour about that?---I don’t think that it had been part of his consideration that he could have the children more often than he was getting. He would’ve like to. He didn’t even get the opportunity spend holidays with them and he commented that he would like to do that Ms Hamilton put to him would he be interested in parenting the children and you could – the response was almost like surprise, like I should even think about doing something like that. And she asked him whether he could parent the children and gave a very careful and considered response and he said, “Could I? Well, that would be difficult. Yes, we’d have to look at that in terms of house and financing. Would I? I would very much like to”. And that was during that meeting, so. Prior to that, I don’t think he really thought that he should – he had any opportunity or that he would be ever able to parent the children.
HIS HONOUR: That it was open to him?---That it was open to him.
That it was a possibility?---Yes. That was my impression from - - -
He hadn’t even considered that it was a possibility?---No. That was my impression from the discussion. He was very careful in his – he found that he was very limited in what he could do with the children because [the mother] put so many limitations around the contact. Any time that he – something happened, she would complain. So he found that now his contact with the children was limited too spending time with them alone at home. When any – an example he gave was his partner’s older daughter, who was 21 I think, took the children shopping or took the little girl, took [T] shopping, which he thought was a lovely thing to do. There was a complaint made about that, that the children were there to spend time with dad and not to go shopping with somebody else. So he pulled back from doing all those other sorts of activities, what one would argue would be a normal sort of activity in the course of a day and he now said he was just only staying home with the children and he was not – he was very careful about what happened so that there would be no further claims against him that he, you know, neglected or harmed the children in any way. So yes, he was very disempowered, I guess, would be the word I would use in terms of his relationship to the children.
Dr K, a consultant psychiatrist, prepared a report dated 9 October 2006. I reproduce the section of the report that is most important, namely:
OPINIONS OF OTHER EXPERTS
In reviewing this I did not find any opinion which differed in any major way from my own. In particular the Judgment of Federal Magistrate Jarrett in respect of the Application for Relocation mirrors my apprehension about the precipitate marriage between the [the mother and her partner]. [The father’s] most positive contribution to his children’s lives, at least in the immediate future, is his power to force a serious rethink of the relocation issue.
SUMMARY & RECOMMENDATIONS
The key person in respect of [C’s] well-being is his mother. I am strongly of the view that she should enter long-term therapy. Because of her concrete type of thinking she would gain the best help from a cognitive-based, problem-solving approach. Attending parenting courses will also be of benefit. The parentification of [C] must cease if he is to resume the like tasks of a normal 10 year boy.
[C] would also benefit from therapy with an experienced child therapist. I would not like to see the major emphasis being placed on [C’s] therapy, as against [the mother’s]. This is a little like asking the tail to wag the dog. All the same [C] has deeply entrenched problems with peer relationships (and perhaps sibling relationships) which could be addressed in therapy. He also has to come to terms with having a father who fails to meet up to his own internalized standards for success and achievement.
Contact with the father should be encouraged. He has been demonized by [the mother], and now by [C], but this does not allow for the fact the marriage was equally dysfunctional on both sides, and that [the father], now, may have a genuine wish to take up some parenting duties as he learns greater skills in this area.
I have no firm opinion about the [mother’s] marriage through lack of information. [The mother] contracted it literally days before the hearing that was to determine the issue of relocation. At the very least it seems advisable that both [the mother] and [C] spend a considerable time in therapy without leaving [M], and for the former to attend various courses such as Self Assertion before she considers heading off to a new country with an untried spouse. [C] is currently too unstable and vulnerable, in my view, to take on challenges such as a new school, new peers and living with a stepfather he scarcely knows.
She gave evidence before me over a number of pages of transcript and I will select those sections of her evidence that I think are most helpful.
[Dr K], is it your opinion that these children are, in varying degrees, demonstrating signs of emotional disorders?---Yes, it is. When I first was involved in the case and I assessed only [C] I had very little knowledge of the other children other than what I’d read in other reports. But certainly my opinion of [C] was consistent with that. The additional information from [Ms C] and now from the two teachers, as I said, new information to look at, is along the same lines.
And, [Dr K], what if any has been the effect of the mother’s post-separation parenting on these emotional disorders, in your opinion?---I’ve thought about this quite a bit, so I can’t give a simple answer to you. My feeling about the mother was that she does represent – or she does have a very concrete egocentric way of viewing the world, and a very limited capacity to stand back and see the big picture or to see herself placed in, you know, as part of a big interaction about this. And to the extent, you know, I think that if she was psychometrically tested those kind of traits would be obvious in the testing. Now - - -
HIS HONOUR: Doctor, can I tell you something that you may not know, but it was something that struck me in her evidence. She has lived in [M] now for about four years since separation. Her parents live in [M] and she has a sister in [M] from whom she is largely estranged from the sister, but both her parents gave evidence. But what struck me and which may have some influence on what you have just been saying is that she told me she has no friends in [M], she has not made any friends in [M] in four years?---Yes, thank you. And that I think would be consistent with – you know, with what is almost a developmental disorder. Now, the fact that the younger, - her children are displaying similar behaviours may represent, you know, some biological factors that, you know, are inherited. But children can overcome their biological deficits if the kind of parenting they’re receiving can steer them, you know, towards more appropriate behaviour, you know, just as people in therapy can change and become less concrete and less narcissistic in their thinking and so on over time. Children that are well parented can overcome these – at least show far less obvious evidence of these kind of neurological difficulties. So it does all add up for me – and I’m sorry this has been a long-winded answer, but - - -
MR WHITE: No, not at all?--- - - - Mr White, it does essentially say that I think the environment the children are being raised in is not helping them overcome some difficulties, and these in turn are being compounded because they alienate themselves from their peers and therefore cannot model themselves on peer behaviour.
[Dr K], then what is your opinion likely to be the outcome if the children remain in residence with their mother? Is it likely that they will suffer further emotional damage?---Yes, I believe it is.
The children’s weekend contact with the father would appear to be making some progress towards re-establishing a relationship between the children and their father. Are you able to glean that?---I’m gleaning it from the opinions of others. It was certainly not in [C] himself when I interviewed [C], but, you know, I – the other witnesses appear very credible, and therefore I would accept that that’s so.
Is it your opinion, [Dr K], the children are less likely to suffer emotional damage by an order from this Court that they reside with their father than allowing them to continue to reside with their mother?---Yes, I do believe that. I think that – I think the best outcome of course would be a point where there could be some shared parenting. But I don’t believe this mother can shift without some very major change in the circumstances. I mean, I think she just – personality and the way she thinks is not going to change unless there is some kind of major shift such as the children being resident with the father and there being a gradual period where contact with her could be returned.
In that situation where the children went to reside with their father, [Dr K], would it be your opinion that the children should have a period where they had no contact at all with their mother prior to a period of supervised contact?---Yes, I do think that.
HIS HONOUR: Can you give me some idea of what you have in mind though, I mean what sort of – I take it what you are saying is that to bed down such a change, which would be a fundamental change for the children, I should make an order that the mother have – spend no time with the children for a period to enable it to bed down, and then reintroduce some form of her spending time with the children which would be supervised so as to ensure that she didn’t undermine the orders that had been put in place. Is that what you are saying?---That is my – that is my thinking, yes.
Can you give me some indication, because I don’t think anybody else is going to be able to, of the sort of time frame that might be appropriate, in your opinion, to adopt?---Well, I think we could be talking about, you know , a period of up to three months of no contact. But I pluck that figure, you know, out of the air. What I – because what I don’t yet know is that the therapeutic impact of this process, this Court process, may be profound and rapid or may have little impact. And by that I mean that if this were to occur, that the children go to the father, and the mother faces – has to face seeking treatment and doing something about it, it’s quite a therapeutic shock, you know, that can make some very fundamental changes. And then after that – so, you know, as I said, I pull a figure of say three months. And then I would think a further period of three months of supervised contact with the kinds of assistance that a contact centre can provide, and reports that would go back to the separate Child’s Representative, may then allow an evaluation in say six months time.
MR WHITE: [Dr K], you said that you thought the mother should have no – spend no time with the children for a period of approximately three months. Did that include telephone contact we well, or would you think that it would be advantageous to the children if there was some degree of telephone contact, and if so - - -?---Yes, I think that it would be advantageous.
And should the telephone contact be restricted or unlimited, and should it be supervised or unsupervised?
HIS HONOUR: Runs some risks, doesn’t it?---Yes. I guess it does, yes.
Once you open the door to that, if the purpose of no contact is to allow this relocation, if I can call it that, to bed down, if you introduce telephone contact into that you introduce the possibility of destabilising it don’t you?---Yes, I think you do. I’m just trying to, you know, to run it through my head as to – it really relied on where [the mother] is. If she can make telephone contact that is, you know, sensible and common sense, it would be very beneficial. It if were histrionic and emotive and so on, it could really blow things apart. So I think if there were to be telephone contact it should be supervised and, you know, maybe it could be something that the contact centre would assist with.
I don’t think I could leave it to the father because unlike you I have seen these two parties in Court for now, I have lost track of the number of days, and when they communicate even in Court as witness and cross-examiner or whatever, it is like watching a domestic dispute?---I see.

THE LAW

The law with respect to relocation cases since the amendments to the Family Law Act has recently been considered by the Full Court constituted by Justice Kay in Godfrey & Sanders [2007] FamCA 102. In the course of his reasons, his Honour cites with approval a decision of Justice Dessau in M & S (formerly E) [2006] FamCA 1408.
His Honour said:
“29.The very many authorities that discuss the appropriate principles to be applied in relocation cases and as cited at the commencement of the Federal Magistrate’s judgment (see par 14 above) are all decisions that were made before the substantial amendments to the Act in July 2006. My research has only located one decision in which the effects on previous decisions relating to relocation cases as a result of the new amendments has been analysed by a Judge of this Court. That is a decision of Dessau J in M and S (formerly E) [2006] FamCA 1408.
30.That case concerned a proposed move to England from Australia by the mother of the child which would severely impact upon the existing arrangements that saw the child spending time with her father on two weekends per school term and half the school holidays. Her Honour said:
26.There is no explicit relocation provision in the new legislation, although one was considered. Recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the exposure draft of the Bill (“the Report on the Bill”) recommended that the Act be amended to include a provision that, where there is a proposal for any change in the child’s living arrangements that would substantially affect the child’s ability to reside or spend time regularly with the other parent or extended family, the court “must be satisfied on reasonable grounds” that such relocation would be in the child’s best interests. The recommended provision would have effectively placed an onus of proof on the moving party, and as such would have been a significant shift from existing case-law. The proposal was not adopted, although in second reading speeches there was discussion about possibly incorporating it into the Act after a report from the Family Law Council on relocation. For completeness, I note that the Family Law Council Report was published in May 2006. The Council concluded that the best interests of the child should remain the paramount consideration in relocation cases, with the factors in s 60CC to be considered.
27.The amended Act has one reference to a parent moving away from another, in s 4, where “major long-term issues” are defined as including:
“(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
Save for underlining the significance of such a move as an important issue for a parent to decide, that definition does not assist further as to the correct approach in such cases.
28.Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case [(2006) FamCA 1346] observed (at para 72):
“… it can fairly be 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 …”
29.Before July 2006, the object of Part VII was expressed in s 60B(1) as follows:
“The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
30.In the recent amendments, s 60B(1)(a) provides that the objects are to ensure that the best interests of children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;”
In the revised explanatory memorandum to the Bill, it was noted (at para 52) that the object was consistent with the introduction of a presumption in favour of equal shared parental responsibility.
31.The principles underlying the objects are similar to the previous version, but s 60B(2)(b) is now more specific about the right of children not just to have contact with both their parents and other significant people, but to “spend time …” and to “communicate” on “a regular basis” with both parents and other significant people “such as grandparents and other relatives”.
32.The matters for the court to consider in determining a child’s best interests, as now set out in s 60CC, are also different in part from those set out in the previous s 68F(2) of the Act. In particular, there are two considerations expressed as “primary considerations”, the relevant one being:
“…the benefit to the child of having a meaningful relationship with both of the child’s parents …”
There are then “additional considerations”, including a newly expressed consideration:
“(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;”
33.The revised explanatory memorandum noted (at para 49) that the intention of separating the primary considerations from the additional considerations was to:
“…elevate the importance of the primary factors and to better direct the Court’s attention to the revised objects of Part VII of the Act.”
The memorandum went on to explain (at para 52) that they were elevated as they deal with “important rights of children and encourage a child-focused approach”, although it was acknowledged (at para 51) that there may be some instances where the secondary considerations outweigh the primary ones.

BEST INTERESTS OF THE CHILDREN

Section 60CC provides how a Court determines what is in a child’s best interests. I am directed under ss 1 that I must consider the matters set out in ss 2 and ss 3.
Subsection 2 sets out the primary considerations. It is as follows:
(2)      The primary considerations 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.
On the weight of the evidence before me, it is beyond argument that unless I refuse the mother’s application to relocate with the children to the United States of America, the children will not have a meaningful relationship with both of their parents. Further, unless I put in place some protective orders, on the evidence before me the children are likely to continue to be psychologically damaged by the mother’s alienating behaviour.
(3) Additional considerations are:
(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;
I do not place any weight on the views expressed by the children because in my opinion they have been poisoned by the mother’s behaviour.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The relationship between the mother and the children is that she has exposed them to a high risk of psychological harm by her alienating behaviour. This has significantly affected the relationship that the children have had with their father. It appears that that relationship is improving and it is necessary to make orders to allow that to continue to improve. The children seem to have a good relationship with their maternal grandparents.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother has a complete lack of preparedness to facilitate and encourage a close and continuing relationship between the children and the father. The father on the other hand appears to be prepared to facilitate and encourage a close and continuing relationship between the children and the mother.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
This matter arose for discussion in evidence and the question of balancing risks. There is no doubt that the orders that I have put in place pose some risks for the children in readjustment. However, on the evidence before me I have no choice but to make the orders that I have. I am hopeful that the children’s relationship with their maternal grandparents will be unimpaired.
(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 rights to maintain personal relations and direct contact with both parents on a regular basis
This is not a relevant consideration, having regard to the orders I have made.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I find that the father can provide for the needs of the children including their emotional and intellectual needs but has been prevented from doing so by the mother. The mother can also provide for their needs but does so in a way which positively poisons their relationship with their father.
(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;
There is no particular relevance in this subparagraph.
(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;
Does not apply.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I have already made findings with respect to the mother. The father has been by no means a model father but much of that is, on my findings, as a result of the mother’s behaviour.
(j)any family violence involving the child or a member of the child’s family;
On the evidence I am unable to make a finding of any family violence.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no current family violence order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I am satisfied that the orders I have made are least likely to lead to the institution of further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that I think is relevant.
In relation to ss 4, I have dealt with these matters already under ss 3 Additional Considerations.
I think that the father has failed to take the opportunity in the past to participate as he should have with respect to the children but I accept the professional evidence that he has been disempowered by the mother. His response to being advised that he could actually seek to have the children live with him was quite illuminating.

PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY WHEN MAKING PARENTING ORDERS

The presumption has been rebutted by evidence that satisfies me that it would not be in the best interests of the children for the child’s parents to have equal shared parental responsibility for the children.
That being the case that I must make such orders as in my discretion are in the best interests of the children as a result of the considerations of one or more of the matters in s 60CC.

CONCLUSION

Having regard to all of the evidence and in particular, my findings under s 60CC, I have concluded that it is in the best interests of the children to make the orders that I have set out at the beginning of this Judgment.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith.

Associate:

Date:

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as EDMUNDS & BOLWELL

[2007] FamCA 675

10 July 2007

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