Ellis & Warner

FAMILY COURT OF AUSTRALIA

ELLIS & WARNER

[2007] FamCA 1138

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Consent Orders

Family Law Act 1975 (Cth)

APPLICANT:

Ms Ellis

RESPONDENT:

Mr Warner

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

HBF

532

2006

DATE DELIVERED:

29 August 2007

PLACE DELIVERED:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

29 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Daniels

SOLICITOR FOR THE RESPONDENT:

Dobson Mitchell & Allport

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs Van Meer

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Aid Commission

Orders

THAT BY CONSENT the mother and the father have equal shared parental responsibility for the children, M born … April 1992, R born … January 1994 and D born … October 1997 (as a group referred to as “the children”).
THAT BY CONSENT the child M live with the mother except as is otherwise provided in these orders.
THAT the child M live with the father as follows:-
(a)each of the mid term New South Wales school holidays (excluding the first mid term school holiday period) from the first day of such school holidays to the last day of such school holidays;
(b)for one half of the New South Wales Christmas/New Year school holiday period being the second half in odd numbered years and the first half in even numbered years, but in any event such as that all of the children are together over such periods;
(c)for one half of the first of the New South Wales mid year school holiday period being the first half in even numbered years and the second half in odd numbered years;
(d)such other times as are agreed in writing between the parties.
(e)Such times to be subject to the views of the child M, provided that should she wish to miss or reduce times she lives with the father, the mother give one months notice in writing to the father.
THAT the child R and the child D shall live with the father accept as is otherwise provided in these orders.
THAT R and D shall live with the mother as follows:-
(a)for the whole of the second and third mid term Tasmanian school holidays;
(b)each alternate Tasmanian mid term Easter school holiday commencing in 2008 and then each alternate year thereafter, but in any event such as that all of the children are together over such periods;
(c)one half of the Tasmanian Christmas/New Year school holiday period being the first half in odd numbered years and the second half in even numbered years (so that the children spend Christmas holidays together);
(d)the commencement date of such school holiday residence shall be the first day of the school holidays and the last day of the school holidays if the whole holiday or if need be the middle day of the holiday;
(e)such other times as the parties agree in writing.
THAT the children are entitled to communicate with either of the parents at least weekly at any reasonable time requested by the child by telephone, mobile telephone, SMS or email and to that end each parent shall keep the other informed as to the current residential address of each parent and mobile and home telephone numbers of the children and the parent. Further, that neither parent shall interfere with the reasonable telephone communication between any of the children and the other parent or sibling.
THAT in relation to the children travelling to and from Tasmania to New South Wales, the father shall be responsible to provide air tickets for the children to and from Sydney or Brisbane Airport and Hobart.
THAT in the event that the father does not provide air tickets at least one month in advance for the children for the journey/s anticipated by these orders the mother shall be entitled to obtain appropriate air tickets at the best price reasonably available for the use by the child and/or children and the father shall within 7 days of written notice of such air ticket reimburse the mother.
THAT in New South Wales the mother shall be responsible for transporting the children to and from either Sydney Airport or Brisbane Airport and in Tasmania the father shall be responsible for transporting the children to and from Hobart Airport.
THAT the parties shall each respectively inform the other forthwith if the children receive any medical attention whilst in that party’s care, including the name and contact details of any person providing such attention.
THAT the parties shall each respectively authorise and direct any person providing medical attention to the children to provide details and documentation in relation to such treatment to the other party.
THAT both parties shall ensure all school records shall note the father and mother as having equal shared parental responsibility and with whom such school authorities may liaise from time to time regarding the children and to whom school reports and information ought to be sent.
THAT the mother and father shall each attend and complete a parenting after separation course conducted by Relationships Australia or similar course within six months from the date of these orders.
THAT both parties be restrained from providing alcohol to any of the children.
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.
THAT the appointment of the Independent Children’s Lawyer be extended for a period of six months from the date of these orders.
THAT the Independent Children’s Lawyer inform the children of these orders.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
THAT a transcript of the reasons for these orders be taken out and placed on the Court file AND IT IS NOTED that in connection with these orders the judgment, for all publication and reporting purposes will be referred to as Ellis & Warner.
THAT costs be reserved AND IT IS NOTED that any application for costs would need to be made within twenty eight days from the date of these orders.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 532 of 2006

MS ELLIS

Applicant

And

MR WARNER

Respondent

REASONS FOR JUDGMENT

These are proceedings between the mother and the father.
The proceedings relate to parenting of their children, M, aged 15; R, aged 13 and a half, and D aged almost 10.
The mother lives in the C region in New South Wales, and the father lives in the T region in Tasmania.
The parties have agreed that the child M should live with the mother in New South Wales most of the time and life with the father during a significant proportion of the school holiday periods, subject to the views of M.
I determine that this agreement is in the best interests of the child M, bearing in mind the particular circumstances of this case. Accordingly a consent order will be made in that regard.
The parties agree that they should have equal shared parental responsibility in respect of the children. Whilst I have enormous concerns about the parties' ability to communicate, I determine that in the particular circumstances of this case that such a consent order ought to be made and I will make that consent order.
This is a matter where the parties agreed that the orders ought to be "live with, live with" rather than the hierarchical "live with, spend time with". That coincides with my view of the structure of the orders.
The issue is whether the children R and D live with the mother most of the time in New South Wales and spend significant school holiday periods with the father in Tasmania, or whether they live with the father in Tasmania and spend significant school holiday periods with the mother in New South Wales.
In these reasons a statement of fact constitutes a finding of fact unless it's otherwise indicated. I have not recited, nor do I intend to recite, all of the evidence that was presented before me over the last two days, although all of that evidence has been considered by me and taken into account.
I have read the submissions of counsel and I have had regard to those submissions.
The mother made no formal submissions, however, throughout the trial she made it clear as to what orders she wanted and the reasons why I should make those orders, and insofar as those comments were made during the course of the trial, I have had regard to them.
The father is aged 50 and is in good health. The mother is aged 36 and is in good health. The father had been previously married and there are no children of that relationship. This marriage was the first marriage of the mother.
The father is a contractor by occupation and works long hours. The mother undertakes long hours in her task as being a homemaker and carer of children.
The parties commenced living together in 1991. They married in October 1996 and separated on or about 23 June 2005. They were divorced in April 2007.
M, R and D are the three children of that marriage. The parties resided in the T region of Tasmania up to separation and the father continues to reside at that town. His sister assists him with the care of the children.
The mother formed a relationship with Mr L. There is an issue of the nature or that relationship prior to separation in June 2005 and in fairness the mother conceded there was more than just a platonic relationship shortly prior to separation.
The mother and Mr L now live together and there are two children of that relationship; namely a child S, who is aged about one and a half years, and a child B, who is aged about one month.
Mr L has two children of a previous relationship; namely a child J, aged about 15. J is a child of his first marriage. Mr L has another child, P, aged nine or 10, from the relationship after his first marriage but before his second marriage.
The child J lived with Mr L for some period of time but has ceased to spend any time with him subsequent to the commencement of the relationship between the mother and Mr L.
Mr L does not see the child J. Mr L has no relationship with the child P.
On separation, the mother moved to her parents' home in the G region of Tasmania and the three children went with her. She remained living with her parents from June 2005 until September 2005. The mother moved to the H region of Tasmania in September 2005 and remained there until January 2006.
In January 2006, the mother returned to her parents' home in the G region, where she remained living until mid December 2006. The mother took the children to the C region in New South Wales in October 2006 for a few weeks.
That trip to the C region was done without the knowledge or consent of the father and in circumstances where the mother did not inform the school of the children's removal from school over that period of time.
In December 2006 the mother moved to the U region in New South Wales and remained at that home until June 2007 with Mr L. In June 2007 the mother moved to the C region in New South Wales and remains at that address.
In February 2006, Mr L relocated to New South Wales to continue his employment. He has remained employed as a contractor in New South Wales but has had a number of employers since that time.
The mother gave birth to their child, S, in February 2006, being the month that Mr L moved to New South Wales. In August 2006 the parties had a conference with the independent children's lawyer and following that conference an agreement was reached that the children ought to relocate to New South Wales with the mother at the end of the 2006 school year.
During 2006, the children attended the N School, except for a period of two weeks in October 2006 when they travelled with the mother to the C Region.
In November 2006, the father notified the mother that his consent to the relocation of the children had been withdrawn and the mother had by that time returned to Tasmania after her visit to the C region in New South Wales.
In February 2007, the child D returned from New South Wales to live with his father and commence school at T High School. In early 2007, the child R expressed a wish to return to live in Tasmania with her father.
An order was made by this court requiring the mother to return the children M and R to the father in June 2007 and they have lived with the father since that time. The child M has now expressed a strong desire to return to live with the mother.
The children's education has been disrupted by the parties' relationship breakdown and by the various changes of residential parent and place of residence since June 2005.
The child M attended N High School from 7 July 2005 until 31 December 2006. Over that period she had about 110 days absence from school, many all day and many yet to be explained. Over the same period, the child R had significant but less time away from school.
The mother enrolled the children M and R in C High School in 2007 and school reports indicated that M had 17 unexplained absent days in the first six months of 2007 and 11 late days and the child R had 10 unexplained absent days and 8 late days.
These proceedings were commenced in January 2006 and an independent children's lawyer was appointed in March 2006. Family reports were prepared by a family consultant and released on 13 July 2006, 19 April 2007 and 30 April 2007.
In exercising jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act. The objects of the provisions of the act relating to children are to ensure that the best interests of the children are met by - and I quote section 60B(1). The basic principles underlying those objects are, except where it would be contrary to the best interests.
Each of the parents has complete but several parental responsibility, subject to any orders the court must make subject to the presumption arising out of section 61DA of the Act.
As there is no issue between the parties, and I accept that the presumption arises, consent orders have been made as to equal shared parental responsibility.
Once the question of parental responsibility is determined then the court needs to consider the question of with whom the child lives or spends time with and degree of communication. In this case there is an issue that the children live with each of the parents, but it is whether they spend most of the time in Tasmania or most of the time in New South Wales.
When the presumption applies, the court has to have regard to section 65DAA. That is a section that says that if there is equal shared parental responsibility, the court must consider the children spending equal time or substantial and significant time with each parent in certain circumstances.
In determining equal or substantial time, the court must have regard to section 65DA(a)(5) as to whether it is reasonably practicable for a child to spend equal time or have substantial and significant time with each of the child's parent, having regard to - amongst others - how far apart the parents live from each other.
In this case the parents live a considerable distance from each other and it is not practicable for there to be an order for equal or substantial time.
In this case it is the fixed view of the father that he wishes to remain in the T region of Tasmania and it is the fixed view of the mother that she wishes to remain outside the state of Tasmania.
In determining what orders the court should make, the court must regard the best interests of the child as the paramount consideration. Section 60CA of the act provides:
In deciding whether to make a particular parenting order in relation to the child, a court must regard the best interests of the child as the paramount consideration.
The factors that the court takes into account in determining what is in the best interests of the child are set out in section 60CC. That sets out the primary and the other considerations that the court has, and I will in the final judgment include section 60CC(2)(a) and (b), section 60CC(3), section 60CC(4) and section 60CC(4)(a).
This is a case where there is an issue of relocation of the children.
In Godfrey & Sanders [2007] FamCA 102 (23 February 2007), Kay J gave consideration to the issue or relocation in light of the 2006 amendments to the Act. His Honour stated:
28.Relocation cases are notoriously difficult. Both parties have valid claims of right. The legislation requires the Court to regard the best interests of the child as the paramount consideration but what is in the best interests of the child is not a matter about which there may be universal agreement. Further, as Kirby J said in AMS v AIF at 207-208:
…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
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 & 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 parents 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.
34. In the second reading speech in the Senate on 11 May 2006 (at page 55), it was noted that the Report on the Bill referred to the primary considerations in s 60CC(2) as intended to “draw appropriate attention to the objects’ provisions in a positive way”, and likely to assist in directing the court’s attention to those objects, “particularly in relocation cases”. That point, however, was not expanded upon further.
35. The Attorney General’s submission to the House of Representatives’ Standing Committee on Legal and Constitutional Affairs noted that the primary considerations were “almost certainly” likely to have an impact upon the way in which relocation cases were decided, in particular, the emphasis on maintaining a meaningful relationship with both of the parents (see page 51 of the Report). Again, there was no further discussion or elaboration.
36. Although not in relation to relocation, Goode’s Case is of assistance, in underlining the legislative intent in favour of substantial involvement of both parents. The Full Court made it clear that in interim hearings, instead of simply preserving a status quo, 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. In paragraph 65 of Goode’s Case, the Full Court sets out the pathway for the court to follow. I am satisfied it is also the appropriate pathway in this case.
37. As noted, Counsel for both parties in this case agree that whether O lives in Melbourne or the UK, neither the concept of equal time nor substantial and significant time is a reasonably practicable outcome, so that, as set out in paragraph 65.8 of Goode’s Case, the issue is then:
“…at large and to be determined in accordance with the child’s best interests.”
And
“9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.”
38.Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
39.The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply “except when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.
31.I provided each of the parties with a copy of her Honour’s reasons for judgment and invited submissions from them as to whether they sought to address me on reaching a different conclusion to that reached by Dessau J. Counsel for the mother and for the Independent Children’s Lawyer understandably did not submit that I should reach a different conclusion on the law to that expressed by Dessau J. The respondent father as a self-represented litigant was unable to advance the discussion any further.
32.Without the benefit of a reasoned contradictory argument, I see no reason to depart from the conclusions reached by Dessau J that whilst the various provisions of the Act, as amended, emphasise the importance of maintaining an appropriate relationship between a child and its parents, the best interests of the child remain the paramount consideration.
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.

One of the issues raised was the credit of witnesses. The mother gave evidence from the prism of her own view on the facts and from time to time her evidence seemed somewhat exaggerated.
An example of this is when she described the children as being in a thriving environment at C High School and whilst some of their academic results at that school were good, some were particularly bad and perhaps did not reflect the reality but reflected more the perception of the mother and her desire that they be seen to doing well in the C region.
The mother also understated the impact of what she said in the conflict between the parties.
The father conceded that he was verbally abusive to the mother, but not to the extent alleged by her. Both parties enmeshed the children in their conflict and seemed to have little or no strategy in terms of excluding the children from that conflict.
Each party considerably lacked insight into the impact of their behaviour and their conflict in respect of the children. As such, I treat the evidence of both parties as, from time to time, unreliable.
It is not a case where I would say or could say that I accept one of the parties in preference to the other. The mother did not call Mr L to give evidence and as such I infer that his evidence would not have assisted her in these proceedings. The father did not call his sister to give evidence and I infer that her evidence would not have assisted him in these proceedings.
The children R and D have settled into school in the T region and seem to be adjusting to school better there than they were in the case of the child D at N School, and in the case of the child R, at N and C schools.
There was of course some concern in relation to the child D's conduct through May, June and July 2007 where there were six episodes of poor behaviour which are recorded in the school records.
The mother says that the views of the children R and D are a reflection of the father's views of the children. She said in evidence that their views were tainted by the father as he had control of the children or they were in his care before each of the appointments.
There may be an element of that in the children's views. However their performance at school - and when I talk about the children, in this instance I talk about D and R - seemed to show that they are coping better in the T region.
The child R's class teacher has provided an affidavit, which evidence was not challenged, where she says that R is:
Involved in the classroom and not disrespectful. She has a core group of friends in grade 7 and grade 8 and her work is of a very high quality. She helps other students and her attendance record is excellent. She excels at maths and information literature. The teacher places [R] near the top of her group.
The teacher observes that R and D are friendly and close. This is certainly a better observation of her than that made in the N School where in July 2006 from her report a comment was made, and I quote:
[The child R] is continuing to have problems making solid friendships. However, I am beginning to see some tangible improvement. Equally, [R] is much more settled in class lately. She is less disruptive and her work ethic is better. Despite many difficulties, [R] is a delightful class member.
At the end of the year at the N High School, the report observed:
Although [R] has had an extremely unsettled couple of years, I have seen slow but steady improvement.
She goes on to say at the end:
[R], however, still has a long way to go before she can develop the solid friendships which she longs for.
These issues seem to have been addressed at her present school. Mr W, who is a school counsellor at C High School, provided school records in relation to the child R's attendance at that school for the first two terms of 2007.
The mother reflected on the credits which R received in that school. However, the report also observed in English that R had a borderline pass and her efforts were below standard; the same with Languages.
She was absent from school in these two terms for 10 days, eight of which were unexplained.
Insofar as the child D is concerned, evidence was provided by his teacher, Ms CH. She said that:
[D] is a friendly, chatty person with a bubbly personality. He gets on well with students and staff, but does chat quite a lot during class. This is as a direct result of his lively personality and not as a means of intentional disruption.
It is apposite to note this comment was made in late July 2007 after the six incidents referred to earlier in these reasons. She says that D has not been rude to her:
[D] is achieving good results, but this teacher believes he is capable of better results. He completed his homework and has an excellent attendance record. He does not always have a complete school uniform and appears to have settled in well.
The impact of these reports is that the children D and R are doing well at their present school. This must in part reflect a somewhat settled household. This however must be seen in terms of the father's cavalier attitude to education. His failure to attend and see his teacher after the child D was placed on detention (because the father forgot about it does not reflect well on him).
He does not treat the issue of education as seriously as it ought to be treated. The mother says that education is important but I have concerns about the extent of absences of the children whilst in her care. She gave evidence in response that part of that was as a consequence of the children - at least D - attending occasions with his father where she took him from school.
That may deal with part of the issue but I do not believe it deals with all of it. Section 60CC(2) discusses the benefit of children having a meaningful relationship with both parents. Each of the children has a meaningful relationship with their respective parents.
It is likely that that relationship will continue irrespective of the outcomes of these proceedings bearing in mind the age and maturity of these children.
The approach of the parties in terms of their place of residence is intractable. Neither party presents as providing a physical risk to the children. However, such is the level of conflict between these parties, and their inability to see the impact of that conflict on the children, that they must cause psychological and or notional harm to the children.
In respect of that conflict the family reporter observed in paragraph 42 of her report of 30 July 2007:
The conflict and family tensions that would be present in either of the parents' home would outweigh the benefits of the children living together.
That is an extraordinary remark for a qualified family consultant to make. It gives meaning to the extent and depth of the conflict that exists between the parties.
The family reporter has made comment about conflict of the parties in her two previous reports.
The father conceded in cross-examination that he was on one occasion abusive of the mother in the presence of the children. I accept part of the evidence of the mother in that the abuse was far greater than that conceded by the father. At the same time I accept the father's evidence that the mother was abusive of him in the presence of the children.
Neither the father nor the mother could conceive of any way this conflict could be reduced. They both said they would attend parenting-after-separation courses. Both of had the opportunity to do so in the past but neither have availed themselves of that opportunity, notwithstanding comments made in various family reports.
In her summary of argument the independent children's lawyer made submissions in respect of the primary considerations which submissions I adopt and include in my reasons.
I repeat the above comments in respect of section 60CC(2)(b).
In respect of section 60CC(3)(a), the views expressed by the children: in her report dated 13 July 2007, the reporter observes of the child R at paragraph 28:
[R], 13 years, presented as sombre and softly spoken. [R] outlined that she wanted to move to [the C region] and live with the mother but she was happy to come back and live with the father and now wants to remain living with him. [R] explained that she has not told her mother of her views. [R] did not want the consultant to tell the mother, given that there was another visit planned before her mother returned to [the C region]. [R] was content for her views to be outlined in this report.
This itself is of concern that the child R expressed such strong views, but at the same time didn't want those views to upset a visit she was proposing to have with her mother in the immediate future, and perhaps is an indication of the difficulties that all of these children are suffering because of the conflict of their parents.
The reporter goes on to say in paragraph 29:
[R] volunteered that Mr [L] was sometimes nice and contributed positively by taking her places. However, she described there were periods of high tension and she objected to her mother leaving parental decisions to Mr [L]. She complained that Mr [L] would say nasty things about her father. [R] described one incident where Mr [L] pushed her "and I got really scared". [R] believes that the family dynamics would be the same if she were to return to live with the mother.
At paragraph 30 the counsellor observed:
[R] outlined that she does not get on well with [the child M]. [R] described the factors at home that lead to conflict and the fractures within the [T] community which lead to division between her and her sister. [R] believes that [M] wants to return to her mother and that they each should be able to make their own decisions about each parent that they live. [R] said she would just have to put up with it if she had to return to [the C region].
The family consultant expressed the view - and I accept - that considerable weight ought to be give to R's views bearing in mind her age and maturity.
The mother says that the child R has been persuaded to this view by the father. There is some substance in that submission in that the father has paid both R and M some $200 per month since the beginning of this year in circumstances where he was paying the mother at times $26 per month in child support.
It also ought to be seen in the light of the evidence given by the father that he was proposing to buy motorcycles for the children, but only if they stayed there. His expression was that, "If they weren't there, they wouldn't need them". This is somewhat disingenuous bearing in mind that at the worst case the children would be with the father most of the school holidays if the mother's claim was successful and they would no doubt have need of these motorbikes - if there is such a thing as a need for a motorbike - during those holidays, and if the father's claim were successful, the children would be with the mother in the school holidays and would not need the motorbikes.
There was also the question of the boat that the father put in the name of the child D, a boat of some 21 foot in length, according to the husband's evidence, and having a value of some $10,000.
However, I am satisfied that the child R's views are determined and that she has a strong view to live with the father. This must, however, be seen in the light of her views expressed in the report of last year.
As to the child D, the family reporter observed that he is torn between where he would rather live. On the evidence it is clear that there is a special relationship between D and his father. This no doubt causes some friction between D's older siblings and the father somewhat lacks insights into the impact of this on his older children.
D has expressed a preference to live with his father at this time. I have had regard to that desire, but I certainly do not give it the same weight as I would in terms of that of R.
The father has said - and I accept that if either or both R and D express a view they wish to live with their mother, he will accept that point of view and put arrangements in place.
I need to consider the matters set out in section 60CC(3)(b), which is the nature of the relationship between each of the children and their respective parents and other persons, including grandparents and other relatives.
R has a fundamentally sound relationship with both of her parents. The mother was the primary carer of R until June this year. The conflict and sadness following the break up of the parties' relationship has impacted upon her. Initially she wanted to remain with the mother in the C region but later changed her mind.
D has a close relationship with his father, albeit that he is seen as a favourite by his siblings. He has a close relationship with his mother. He clearly is struggling as to which parent he - with whom he wishes to live, and it is sad that these parents cannot take away that pain from the children and make decisions for them, rather than leave them in a position where they feel they have to make the decisions themselves.
As I have said earlier, both parents are so caught up in their own conflict they have little insight into the impact of that conflict onto the children.
As between themselves, the children have a sound, underlying relationship. The children M and R are not getting on well at the moment and argue. However, the view of the family reporter - and I think the evidence of the mother - is that notwithstanding that fighting between the siblings, there is still a good relationship.
The order proposed by the father will involve splitting siblings during school term. The family reporter observed, in a somewhat understated way, that whilst this is not ideal, bearing in mind the particular dynamics of the father, it is in her view the better of the various options.
The children of course have siblings in the children S and B. The ability for D and R to form attachment with these younger children will raise considerable problems if the father's application is successful.
The family reporter comments on this in paragraph 43 of her final report.
In her report of 19 April 2007, the mother observed to the reporter:
[The mother’s] report indicates she's having significant difficulties managing [M] and [R]. Just as she was determined to relocate to [the C region], she seems determined to remain there with Mr [L], irrespective of the problems for her children.
The family reporter goes on to say at paragraph 32:
The only life [M], [R] or [D] knew before this separation was being raised by their mother in the small town [in the T region] where the father has lived all of his life. The children have accepted their father's long hours of working and enjoyed leisure they had with him.
She goes on to say at paragraph 33:
The children have had to make many difficult adjustments post separation. The mother moved in with her own parents, lived independently for a short period. The children have attended different schools and relocated to a different state. A former friend of the family is now their stepfather. The children have also been exposed to enduring conflict between the parents.
In terms of section 60CC(3)(c), the willingness of each of the parties to facilitate and encourage the relationship between the children and their parent, the family reporter notes that the mother is not committed to ensuring the children spend time with the father.
The mother endeavoured to resile from this in evidence. However, she later gave evidence of not informing the father of the various moves and the children's changes of school.
She did not make available to the father school reports of the children and her excuse - or words to the effect that, "If he didn't provide them to me, why should I provide them to him?" The mother conceded this was vindictive behaviour.
She does not encourage the children to interact with the father. I accept the father's evidence that the mother abuses him on the telephone in the presence of the children.
The father likewise abuses and belittles the mother. He calls her appalling names. The father says - but I do not accept - that he has overcome his anger in the mother living him for a close friend.
The father has not facilitated telephone communication between the children and the mother as ordered by me on 3 May 2007.
Both parties reflect on themselves and do not reflect on the other. Notwithstanding what order I make, I am not confident the parties will encourage the relationship with the other party.
Both parties express anger and lack insight into their approach with the other party vis-à-vis the children. Both parties express the willingness to attend parenting after separation courses. However, I am concerned that this may be rhetoric and they have no real desire to remedy the underlying antipathy that they each appear to have for the other.
They ought both to reflect upon what I have said and think and focus on their children rather than on themselves.
Section 60CC(3)(d), the effect of any changes in the child's circumstances: the mother has been the principal carer for these children. In evidence the father, to his credit, described her as a good mother. However, in the care of the mother the children have made a number of residence moves which I have referred to earlier.
The effect of the mother's orders would involve another change of school for D and R, albeit that R would go back to a school which she left in June 2007. The effect of the orders proposed by the husband will be the siblings are split, with M living in New South Wales and R and D in Tasmania. This would also mean separation from the children B and S.
The mother's proposal would have the children together but in circumstances of great conflict, including conflict between the children and concern raised by the family consultant as to the mother's capacity to parent all five children.
As to section 60CC(3)(e), the difficulty and expense, travel between Tasmania and the C region of New South Wales is difficult as the major airports from the C region arrive at Sydney or Brisbane.
These involve long drives. Whichever determination I make will involve the children spending little time with one parent, bearing in mind the tyranny of distance. I have had regard to this in these considerations.
Part of the practical difficulty can be dealt with by way of an order that the father meet or provide the air tickets for the children. It seems to me if the father is able to provide $400 per month to his elder children for their own use absolutely, he must have the capacity to provide for the air contact between all three children and their respective parents.
Fortunately in this case the school holidays of Tasmania and New South Wales are not synchronised. This means if I adopt the father's view that the child M can visit the father and her siblings in the three mid-year school holidays - except that that excludes the April break - and the children R and D can visit New South Wales in the Tasmania mid-year school holiday periods, so the children would have far longer periods together during the school year, although not always in school holiday periods.
This would mean that excluding Easter first term break and Christmas holidays, the children would have some 12 weeks together per year. In any event, the Christmas break would be divided equally and the Easter holiday would switch each year.
If the mother's approach was adopted, the children would be together all of the time, including school holidays in New South Wales
In terms of section 60CC(3)(f), the capacity of parenting, I repeat the mother has been the primary carer of the children from their respective births until early 2007, in the case of the child D, and during 2007 in the case of R.
The family reporter observes, and I accept, that the mother was having difficulties managing M and R and will have difficulties managing all of the children.
There is some conflict in the household of the mother and Mr L which has impacted on D and R. The father works long hours and has to a large degree involved his sister in the care of D and perhaps recently R.

Neither parents presents as an ideal choice for these children, and it is sad that I have to say that. I have concerns about the father's use of alcohol. He said that the children taste alcohol, which is a practice which is adopted by many families and was not challenged by the wife.
However, giving those older children a bottle of drink at the age they were in December 2005, reflects poorly on his decision-making as a parent. Providing expensive gifts to the children in the light of these proceedings, particularly when there is one household with plenty of money and another without, again reflects poorly on his parenting ability.
I have concerns about taking the children on shooting expeditions, although it is not up to me to impose my ideals and standards on other members of the community. But it ought to be lawful if it is done, and ought to comply with the Tasmanian laws regarding that behaviour.
I was concerned about the father telling the children about an attack allegedly made by Mr L on his son, J, which involved an injury to his leg. This was in circumstances where that information was provided, not because the father was endeavouring to have the children's time with Mr L supervised, but simply to reflect the father's anger at Mr L in his endeavour to put Mr L down.
Shortly after separation, the father met Mr L at a Casino and spat on him, and there was an altercation which followed which involved the father being removed from the Casino. This was in the presence of the child M, which for any child seeing adults fighting is a terrible thing, but to see your father fighting in those circumstances or involved in that behaviour is inexcusable.
I have concerns about the care offered to R and D by the father's sister. There seems to be animosity between the sister and the mother for caring. The mother says it seems to be more of a chore rather than a deep care of the children. The mother, on the other hand, has the care of children B and S and has struggled to care for M and R and D since separation because of the many matters arising out of that.
There was in the pleadings an assertion that the father is a heavy drinker. It was challenged significantly during the hearing by the mother, and that is to be expected, because she was unrepresented, by the independent children's lawyer.
Notwithstanding that circumstance, the mother agreed to D living with the children from the commencement of 2007. She also agreed with D remaining at the T School at the end of 2005.
There is not sufficient evidence before me to make a finding with regard to the father's use of alcohol.
In terms of the section 60CC(3)(g) matters, I adopt the submissions of the independent children's lawyer and I repeat what I said above.
In terms of section 60CC(3)(g) and (i) they are not applicable. In respect of section 60CC(j) as to family violence involving a child or a member of the child's family, the mother asserts that she was the subject of verbal abuse during the marriage and subsequent to the marriage.
There is evidence before me that the father had a short temper and his communication with the mother prior to separation and his behaviour was not as the mother would have wanted it. If it was, we would not be here today.
The father is a brusque man, and a direct man, and perhaps his use of language was such that he did not see it as abuse but the wife took it as abuse during the course of the marriage, particularly as the marriage was failing in the last few years.
I am satisfied that the father verbally abused the mother prior to and subsequent to separation. This also must be seen in the context that the mother is not backward when she has discussions with the father. Both use language to verbally attack each other without concern for the impact of the language on the other person and more particularly on the children.
I accept on the evidence before me that the father has not physically assaulted the mother.
Prior to separation the mother did not involve the police in any of the events raised by her, although that is sometimes a factor in marriages.
The mother makes general non-specific complaints about the father's use of guns. The father denies that he has threatened the mother with guns. On balance I accept his evidence in that regard.
That is not to say that the father is beyond reproach in terms of the use of his guns. Shortly before the separation the father was invited to have a discussion with Mr L and his then wife. He took up that opportunity and at that stage it became more clear to him, if it was not already clear to him, that things were happening between Mr L and the mother which the father thought ought not to happen.
In the course of that conversation he tried to frighten Mr L by providing a cartridge of a rifle or a cartridge for use in a rifle or a shotgun, which is inappropriate behaviour.
There is the hostility which occurred in the house about a week before separation. At that time there was a terrible verbal argument between the parties. The father produced a knife and says he did not threaten the wife but did hit it into a door as he was leaving.
The mother's evidence was that when she saw the knife she invited the father to "do what you have to do". The father agreed, on evidence, that in a moment of anger he had an argument with the mother but denied he was threatening her with the knife. Such an event, whether there was a threat, overtly or not overtly, cannot be in any way justified. Taking a knife into an argument would be terrifying, not just for the mother but for the children.
The family consultant said of that incident that it was not an ongoing violence but violence arising out of the breakdown of the marriage. I have had regard to that and it causes me grave concerns.
After separation when the mother was pregnant, she was told something by another contractor and reported that matter to the police. No action was taken in the form of family violence or intervention orders.
Notwithstanding this history, neither party has expressed concern that the children are at risk from the other. Each are seeking orders that the children spend considerable unsupervised time in the care of the other. The mother says that she wishes to be away from Tasmania out of fear of the father. Whilst that is a significant feature, it seems to me on the evidence of the family court that is only part of the reason she wishes to be away from the family.
There are no family violence orders between the parties. As to section 60CC(3)(l), I was proposing to make an order restraining both parties from abusing, demeaning or belittling the other.
The independent children's lawyer submitted to me that this may in fact simply be an area which can generate further litigation between the parties. I have reflected on the need to try and stop the parties from such behaviour and what I intend to do is try and use this occasion to express to the parties my deep concern as to the level of that conflict and I have done that through the last two days. I do not intend to put in place such an order as I fear it would be accommodated more in the breach than by the compliance.
Although I urge upon the parties, if they genuinely care for their children, if they have things to say to each other and they feel the necessity to say it, do not engage your children in that process.
I am concerned that with the vortex of the parties' conflict that this may not be the last time these children's interests are dealt with by this court. I reflect on the recommendations in the three family reports which change each six months as the children struggle to find some certainty in a life which is now completely uncertain for them.
This court cannot cure the underlying communication difficulties. That can only be cured by the parents making genuine endeavours to manage the communication for the benefit of their children.
As the children change and their relationship with each other and their parents change, it will no doubt follow that there will be desires to change the living arrangements. With the mother and father unable to manage their conflict, it will inevitably mean that these proceedings will come back to the court for further determination.
The court can do little to avoid that, part from highlighting the underlying causes, so that if and when another judicial officer gets this matter, he or she will have these reasons to assist them in making such further determinations.
I take into account the matters referred to in section 60CC(4).
The parents have both endeavoured to exclude the other from decision-making processes and I repeat the matters I have set out above and observe the parties have in some ways failed in their responsibilities to the children as parents.
I repeat the comments I made regarding child support and I have had regard to the events that have happened and circumstances in existence since separation.
This is not an easy determination bearing in mind all of the facts and circumstances surrounding these two children.
The mother, to her credit, has run her case quite well and challenged my thinking, and that would not have been easy for her, particularly when she had half an ear out for her child B crying outside the courtroom.
Counsel for the father has acted appropriately and kept the issues to that which ought to be determined, and I thank her for that assistance. In terms of the independent children's lawyer, as always she provided a balanced view reflecting on the needs of the children.
The family consultant recommended in August 2007 that children R and D live with the father. She recommended that child M live with the mother. She recommended that M and R and D spend time living together during school holidays with the parent with whom they are not living as often as that can be reasonably arranged.
She recommended that M, R and D communicate with the parent and sibling they are not living with by phone in accordance with their wishes at least once a week.
I have had regard to all of the facts and circumstances in this case. The orders I made are as follows:
In the matter of Ellis & Warner I make the following orders:
I make this clear: I intend that all of the children are together in the C region of New South Wales this coming Christmas. I am not sure that my orders reflect that. If they do not, I will ask the independent children's lawyer to reflect on them and make sure that they do do that.

I certify that the preceding one hundred and sixty three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate

Date: 29 August 2007

[2007] FamCA 1138

29 August 2007

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