Ewart & Wilton
[2021] FedCFamC2F 242
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ewart & Wilton [2021] FedCFamC2F 242
File number: AYC 250 of 2013 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 October 2021 Catchwords: FAMILY LAW – Final parenting – which parent child should live with – relocation – where mother seeking to relocate to New Zealand – where mother says she will relocate with or without child – best interests of child – inability to co-parent. Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA Cases cited: Cox & Pedrana (2013) FLC ¶93-537
Fox v Percy (2003) 214 CLR 118
Hamish & Brighton (2014) FLC ¶93-624
Morden & Coad [2019] FamCAFC 233
Oswald & Karrington (2016) FLC ¶93-726
Sayer & Radcliffe 48 Fam LR 298 [2012] FamCAFC 209
Ulster & Viney (2016) FLC ¶93-722Division: Division 2 Family Law Number of paragraphs: 239 Date of last submissions: 13 June 2021 Date of hearing: 10-14 May 2021 and 3-4 June 2021 Place: Melbourne Counsel for the Applicant: Ms B Lane Solicitor for the Applicant: Armstrong Legal Counsel for the Respondent: Mr J Hall Solicitor for the Respondent: KPW Lawyers Counsel for the Independent Children's Lawyer: Ms S Mariole Solicitor for the Independent Children's Lawyer: Robindale Legal ORDERS
AYC 250 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EWART
Applicant Father
AND: MS WILTON
Respondent Mother
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 JULY 2021
THE COURT ORDERS THAT:
1.All previous parenting orders regarding X born in 2008 (“X” or “the child”) be discharged.
Live with the Father
2.The child live with the Father from 11.00am on Sunday 11 July 2021, with the Mother to provide the child with her New Zealand passport, and changeover occur at McDonalds City B Shopping Centre.
3.From 22 July 2021, the child spend time with the Mother from after school Thursday until the commencement of school Monday, and each alternate week thereafter pending the Mother’s relocation to New Zealand and noting the child will be attending C School. .
Parental Responsibility
4.The Father have sole parental responsibility for all health and education issues relating to the child, and when the Father is required to make a decision of a long-term nature, except for in an emergency, he shall do the following:
(a)inform the Mother in a timely manner of his proposed decision;
(b)consider any input from the Mother in a timely manner in relation to the proposed decision;
(c)make his decision in a timely manner; and
(d)advise the Mother of that decision, with the Father to have the ultimate decision.
5.The parties have equal shared parental responsibility for long term decisions that are not health or education decisions.
School Holiday Time
6.During school holiday periods, the child spend time with each of the parents as follows:
(a)Term 1 holidays, commencing 2021 and each alternate year thereafter:
(i)With the Mother, from after school on the last day of Term 1 to 4pm on the middle Friday.
(ii)With the Father, from 4.00pm on the middle Friday of the term 1 holidays to the commencement of school on the first day of Term 2.
(b)Term 1 holidays, commencing 2022, and each alternate year thereafter:
(i)With the Mother, from 4.00pm on the middle Friday of the term 1 holidays to the commencement of school on the first day of Term 2.
(ii)With the Father from after school on the last day of Term 1 to 4pm on the middle Friday.
(c)Term 2 holidays commencing 2021, and each alternate year thereafter:
(i)With the Mother, from after school on the last day of Term 2 to the commencement of school on the first day of Term 3.
(ii)With the Father – nil.
(d)Term 2 holidays commencing 2022, and each alternate year thereafter:
(i)With the Father, from after school on the last day of Term 2 to the commencement of school on the first day of Term 3.
(ii)With the Mother – nil.
(e)Term 3 holidays commencing 2021, and each alternate year thereafter:
(i)With the Father, from after school on the last day of Term 3 to the commencement of school on the first day of Term 4.
(ii)With the Mother – nil.
(f)Term 3 holidays commencing 2022, and each alternate year thereafter:
(i)With the Mother – from after school on the last day of Term 3 to the commencement of school on the first day of Term 4.
(g)Commencing in 2022 and in each alternate year thereafter, for the second half of the Christmas School holidays commencing at 4.00pm on the third Friday falling after the conclusion of NSW Gazetted school term 4 until 4.00pm on the last Thursday of the NSW Gazetted school term holidays;
(h)Commencing in 2021 and in each alternate year thereafter, for the first half of the Christmas School holidays commencing from 9.00am on the first Saturday falling after the conclusion of NSW Gazetted school term 4 until 4.00pm on the third Friday falling after the conclusion of NSW Gazetted school term 4.
7.For the purpose of the child’s travel arrangements to spend time with the Mother in Australia or New Zealand for school holidays pursuant to these orders:
(a)The Mother is to advise the Father in writing by text or App not less than thirty days prior to the date scheduled for the child’s school holiday time with the Mother pursuant to these Orders as to whether the child’s time with the Mother will occur in Australia or New Zealand.
(b)In the event the Mother advises pursuant to 7(a) that the child’s time is to occur in New Zealand the Mother is to advise the Father in writing by text or App no less than thirty days prior to the date scheduled for the school holiday time as to:
(i)The airport the child will depart from, and return to Australia at – either Melbourne or City D (with the flight to also travel via Sydney) and
(ii)The airport the child will arrive at, or depart from in New Zealand.
8.The Mother will be solely responsible for the travel costs for the child to travel to New Zealand and return to Australia.
9.The Father do all such acts and things necessary to facilitate the child departing on the necessary flights departing Australia in order to comply with the arrangements pursuant to orders 6, the Mother do all such acts and things necessary to facilitate the child departing on the necessary flights departing New Zealand in order to comply with the arrangements pursuant to orders 6.
School
10.Each party do all such acts and sign all such documents necessary forthwith after the date of these Orders to enrol the child in C School, Suburb E with such enrolment to commence in Term 3 2021 and the Father is solely responsible for all costs associated with same including C School fees.
11.The child attend C School as and from the commencement of NSW Gazetted school term 3 and for the entire duration of her high school education.
Passports
12.The child’s Australian and New Zealand passports travel with the child during international travel and return with the child to the Father’s care for safe possession.
Interstate Travel with the Father and International travel with both parents
13.The Father be at liberty to travel interstate with X during time that the child is living with him.
14.The parents be permitted to take X temporarily out of Australia or out of New Zealand (“the overseas travel”), and each parent will sign all documents necessary to facilitate that travel provided that:
(a)The proposed travel is not to take place during the other parent's time with the child unless otherwise agreed in writing and the non-travelling parent shall not unreasonably withhold such agreement;
(b)The travel will be during school holidays, unless agreed otherwise in writing, and the non-travelling parent shall not unreasonably withhold such agreement;
(c)The travelling parent provide the non-travelling parent with thirty (30) days notice of their intention in writing by text or App to travel internationally with the child.
(d)That the travelling parent provide to the non-travelling parent written details of the overseas travel not less than thirty days prior to the intended date of departure including:
(i)Dates of departure from and return to Australia or New Zealand;
(ii)Copy of the proposed itinerary;
(iii)Copy of return airline tickets and/or shipping tickets;
Other
15.Each parent is restrained from relocating the child's residence more than 80 kilometres from the City D Post Office.
16.The child has liberty to communicate by telephone, video or social media platform with either parent at any time and each parent and neither parent will obstruct the child communicating with the other parent in accordance with the child's wishes.
17.The Father is to do all such acts and sign all such documents necessary for X to continue to attend upon counsellor Ms F until otherwise recommended by Ms F with such counselling to be non reportable and the Father to be solely responsible for the cost of the counselling fees.
18.Each parent advise the other in writing of changes in their residential address, mobile telephone number and email address within twenty four (24) hours of such a change.
19.Each parent has authority to access X's schooling information including reports, school newsletters and photograph order forms.
20.Each parent is restrained from
(a)Speaking badly about the other parent in the presence or hearing of the child or allowing any third party to do so;
(b)Discussing these proceedings with X; and
(c)Allowing X to read any documents filed or produced in these proceedings or any other proceedings involving X.
21.Each parent is to advise the other in writing of any medical emergency involving X as soon as reasonably practicable.
22.Prior to the Mother's relocation to New Zealand, the Mother continue to engage with her treating psychologist and follow all of her reasonable directions, and within thirty days of the Mother relocating to New Zealand the Mother engage with a new treating psychologist and follow all of that psychologists reasonable directions.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ewart & Wilton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
The primary question I had to determine was whether X (‘the child’), who is now 13, should live with her mother, Ms Wilton (‘the Mother’) when the Mother relocates to New Zealand or whether she should live in Australia with her father, Mr Ewart (‘the Father’). The third party to the proceedings is the Independent Children’s Lawyer (‘the ICL’).
The last written submission was received on 13 June 2021 and the evidence of the parties made 12 July 2021 and the start of the Victorian third school term very significant dates in their lives. I had not completed my written reasons although I had decided where and with whom the child would live, and on Thursday 8 July 2021 1 advised the parties of my decision, made final orders and reserved my reasons. I determined that it was in the child’s best interests to live with her Father in Australia. These are my reasons. Statements of fact are findings of fact.
Both parents unreservedly love the child and are devoted to her best interests as they see them. They have a competitive and conflictual parental relationship which combined with their devotion to her and limited insight into their own contribution to their parental conflict has and will cause real stress and trouble for this child.
RELATIONSHIPS BACKGROUND
I determined some interim issues pending final hearing in November 2020. The Father is 53 and currently works as a tradesman. The Mother is 52 and currently works as an allied health worker. The parties commenced a relationship in 2006, married in 2007, separated on a final basis in August 2012 and divorced in November 2016. The Father has since remarried to Ms G (‘Ms G’) in 2020. The Mother has not re-partnered. The Mother has an adult child of another relationship, Mr H (‘Mr H’) who is 25.
The Mother was born in New Zealand but has lived most of her adult live in Australia. From 29 March 2019 until May 2021 the Mother’s mother, Ms J (‘Ms J’) aged 82, a New Zealand citizen and ordinarily a New Zealand resident, lived in the Mother’s household before moving back to her home in New Zealand.
LEGAL PRINCIPLES
The overarching principle of a case such as this, often described in legal short hand as a “relocation” case, is to apply Part VII of the Family Law Act 1975 (Cth) (‘the Act’) and thus promote what is in a child’s best interests taking into account the matters that Parliament has commanded must be considered when making an order about a child’s living arrangements. There are dozens of provisions over many pages of the Act.
The High Court of Australia and the Full Court of the Family Court of Australia has provided guidance as to how those many provisions are to be considered and I am bound to follow those guidelines. Those many provisions are helpfully summarised by the Full Court in many decisions including Sayer & Radcliffe (2012) 48 Fam LR 298 (‘Sayer & Radcliffe’).
In Sayer & Radcliffe the Full Court held as follows:
[47]It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles [2007] FamCA 1230; (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
[48]A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
[49]The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker [2007] Fam CA 1236; (2007) 37 Fam LR 461, Morgan and Miles (supra), Adams & Randall (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:
•Section 60B – Objects of Part and principles underlying it
•Section 60CA – Child’s best interests paramount consideration in making a parenting order
•Section 60CC – How a court determines what is in a child’s best interests
•Considerations relevant to relocation include:
•Primary considerations: meaningful relationship with both parents
•Additional considerations:
·nature of child’s relationship with parents and other persons
·extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate
·likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living
·practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis
·capacity of each parent and any other person to provide for the needs of the child
•Section 61DA – Presumption of equal shared parental responsibility when making parenting orders
•Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)
•Subsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:
·(a) How far apart parents live
·(b) Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time
·(c) Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements
·(d) Impact arrangements would have on the child
·(e) Such other matters the Court considers relevant.
[50]The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
[51]The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461, an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said
(pages 464-465, 467):
6.Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] 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”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
7.Section 65D(1) provides that the Court [...] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. [...] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
8.Sub-section (1) of s 65DAA is headed “Equal time” and provides: “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”(emphasis added.)
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
“(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Sayer & Radcliffe has been referred to with approval in Full Court decisions including Cox & Pedrana (2013) FLC ¶93-537, Hamish & Brighton (2014) FLC ¶93-624, Ulster & Viney (2016) FLC ¶93-722, Oswald & Karrington (2016) FLC ¶93-726 at [47]. In Morden & Coad [2019] FamCAFC 233 at [17] the Full Court put it most succinctly as follows:
[17]It is well settled that a trial judge must consider the competing proposals of the parties in accordance with the legislative pathway (Sayer v Radcliffe [2012] FamCAFC 209; (2012) 48 Fam LR 298 at [48] (“Sayer”)). At [49] of Sayer, the Full Court summarises that legislative pathway which must, naturally, include a consideration of s 65DAA(5) of the Act.
In this case I have endeavoured to apply those principles guided always by a search for orders that would best promote the best interests of the child.
Balance of probabilities
I take into account all of the evidence and the parties’ submissions. Findings are made on the balance of probabilities having regard to the evidence and my observation of the demeanour of the witnesses. These reasons do not recite or refer to every aspect of the evidence. In this case there are few recent actual events or statements that are in dispute. But there are very significant disputes as to each parent’s attitudes and perceptions.
In Fox v Percy (2003) 214 CLR 118, a High Court case concerning the skid marks of a Combi van on the correct side of the road, at [31], when discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from false would accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance upon the appearance of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(citations omitted)
I have endeavoured to do so in this case.
PROCEDURAL HISTORY
This matter has a long history with this court and has had multiple court hearings in the City D circuit sittings of this court. The experience of that litigation has emotionally scarred the parties and each parent’s perception of the other’s conduct of the different waves of litigation informs each of them in their approach to dealing with the other and their parental relationship: and not for the better.
First wave of litigation
The first wave of proceedings were initiated by the Mother in July 2013 and final parenting and property orders were made by consent on 11 April 2014. The child was then 5 years.
Those orders provided for equal shared parental responsibility and that the child should live with the Mother and spend time with the Father, from after school Thursday until 6.00pm Sunday in week one of a two week school term cycle and from after school Thursday until Saturday morning in the other week as well as half school holidays. Hence the child was to live with the Father over 4 days and 3 nights in week one and over 3 days and two nights in week two, or 5 nights in each fortnight but involving time on 7 days each fortnight.
In addition express orders were made restraining them from altering the child’s school enrolment and provision overseas holidays. The context of the school orders was that the Mother had unilaterally enrolled the child to start school in a state primary school of her choosing some distance from where the Father lived and at the time of litigation was already attending that school. She said that she had to do so because the parents had not agreed to any school and the school year was almost upon them. Although those orders were made by consent somewhere along that wave of litigation the Father’s understanding was that a Judge had ruled, or indicated, that the child should stay at the then existing school, K School, despite the Father’s opposition.
Those orders also provided expressly about sharing of medical information about the child and that the parents were to consult about shared parental responsibility. Because of the trouble that the child’s schooling and medical issues have caused the parents since then the orders number 6 to 9 and 19 of those 2014 orders bear repeating:
…
6.That each parent is restrained from altering X’s school enrolment without the written consent of the other parent or order of the Court.
7.That the parents each authorise any day care of school that X may attend to provide to the other parent copies of all school reports, examples of school work, school newsletters, notification of all school activities and parent/teacher nights and inform each parent of any remedial or correctional treatment required by X as soon as is practicable.
8. That each party:
8.1Notify the other of any medical emergency or any medical treatment that is required for the child whilst she is in their care by telephone or text message as soon as practicable.
8.2Show due diligence in following instructions from medical practitioners or allied health professional related to treatment for X.
9.That the parents shall authorise any treatment medical practitioner, hospital or medical practice that X attends from time to time to provide to the other parent any information regarding the child.
…
19.As a consequence of Order 1, the parents must consult with each other and make join decisions with respect to major long term issue decisions as defined in the Family Law Act 1975 including, but not limited to:
a) the children’s education, including primary and secondary school;
…
(c) the child’s health and particularly any specialist medical treatment;
…
(e)any changes to the children’s living arrangements which would make it more difficult to spend time with the other parent.
The second wave of litigation
The second wave of proceedings were initiated by the Father on 19 February 2016 and the issues included the Father’s interim application to take the child overseas on holiday. As well each party filed applications that the other be dealt with for contraventions of orders. By the second wave of proceedings the Father had re-partnered with Ms G (they later married and have lived together since that time). Nine days after those proceedings were issued, on 29 February 2016, the Mother attended the home of the Father’s partner, Ms G, where the Father then lived, for the purpose of collecting the child and to serve papers relating to that dispute.
On that day an altercation ensued between the Mother and Ms G. As the Police report annexed to the Father’s affidavit filed 12 April 2021 at page 137 of 599 of the Court Book (herein referred to as ‘CB’) each of the women had a version “vastly different”. It is alleged Ms G put the Court papers in the bin and the Mother “removed a bundle of clothes from her vehicle and threw them in the general direction of (Ms G)”. The following day Ms G consulted with the local Magistrates Court about an Intervention order.
In June 2016 Ms G consulted Police about “intimidatory and derogatory” emails from the Mother. At that time Ms G reported to Police that the Mother “is attempting to build a case against her and her partner… to use at the upcoming family law court proceedings in August”. At about that time the Mother complained to Police that Ms G’s then 14 year old son had assaulted the child. I was not asked to determine what actually happened in this unhappy series of events but the Police report at 8 June 2016 (see: CB page: 138/599) reported:
The current stance of the investigating officer is that this matter is strictly a custody dispute which is rife with the emotional abuse at most, which has been perpetrated by both parties. All complaints/submissions made appeared to be efforts to defame the other party in order to gain a favourable position in the upcoming FLC proceedings.
That conflict, and the controversy around it, has continued to impact upon the potential relationship between Ms G and the Mother, the parents parenting relationship and indirectly on the child.
The first part of the second wave was dealt with by Judge Hartnett (as her Honour then was) on August 2016 and the proceedings fixed for final hearing that was ultimately heard in contested proceedings by Judge Mercuri in November 2017 and determined on 21 December 2017. The child was then 9. The parties represented themselves. A family report was prepared. In that wave the Father sought an equal time arrangement. The Mother opposed equal time (but supported the continuation of substantial and significant time being a 5/9 each fortnight and half school holidays) and sought to remove the child from the primary school she had advocated for (and won) in the first wave of proceedings to another further away from where the Father lived and closer to where she had moved to after the first wave proceeding. In those proceedings Judge Mercuri identified and resolved the contested issues as follows:
Issues in dispute
3. The following issues were in dispute in the parenting proceedings:
a) whether X should spend more time with the father;
b)whether the father should be permitted to take X on a four week holiday in 2018 inclusive of the June/July school holidays and two weeks prior to the commencement of those holidays;
(c)whether there should be a change to the school which X attends; and
(d) whether there should be a change to the arrangements for Christmas.
Synopsis
4. In relation to parenting, I have determined it is in the child’s best interests that:
a) the parents have equal shared parental responsibility;
b)the father be permitted to take X on an extended holiday for four weeks in 2018 including a period of two weeks at the end of term 2;
c) remain at her current school; and
d)subject to some minor changes to holiday time, the present 9/5 time spend arrangement continue, but that the changeover time at Christmas move to 5.00pm on Christmas Day.
The effect of the time arrangement was that the child would spend time with her Father from after school Thursday until before school Monday in week one and overnight Thursday until before school Friday in week two (a 4 + 1 rather than a 3 + 2 fortnightly arrangement) and shared school holidays.
At [141]-[146] Judge Mercuri found matters that resonate in the current dispute:
141.…I am not satisfied that there is any basis for X to move schools… The school is located roughly midway between the parents’ residences and at this stage, both parents substantially work in City B. I am not satisfied that it is in her best interests to move her from K School to L School.
142.…although I am satisfied that an equal time arrangement would be reasonably practicable, I am not satisfied that an order that X spend equal time with both parents is in X’s best interest. Primarily, this is on the basis the current conflict between the parents would not facilitate such an arrangement working effectively…
143.I have also had regard to the evidence of the mother that her coping mechanism for dealing with her perception of the father’s demands is to engage in avoidance behaviour. She herself conceded that this is not necessarily helpful and it is hoped that this insight might lead her to obtain support and counselling to assist her to develop more helpful strategies so that her co-parenting relationship with the father might improve in the future…
…
145.In the alternative, the father seeks one additional night in the alternative week which if granted, would see X spend Thursday after school to Monday morning and one week on Wednesday after school Friday morning in the alternative week with the father… X is in after school care on Wednesday after school until she is picked up by the mother. The father says that he could collect X from school on Wednesday and this would provide more time for her to spend with him, for him to facilitate time with her friends from school and the like. There is much force in this proposal in all the circumstances.
146.Aside from the mother’s objection to any change to the amount of time that X spends with the father, the family report writer also expresses concern about this potentially leading to a lack of stability for X In particular the family report writer acknowledged that the X’s:
relationship with both parents is clearly good, and she has positive and enjoyable experiences with each parent, and they both are important to her…But my recommendation in relation to living with the mother and substantial time with the father related to providing her secure base, stable living situation moving to and from school from one main residence, but also ensuring the ongoing meaningful relationship with her father.
147.Having given consideration to all these factors, I do not propose to order that the child spend additional day in the alternative week after school with the father.
Again, because of the trouble that the child’s schooling and medical issues and communication issues have caused the parents since then, that is from the conclusion of the second wave of proceedings, the orders number 7 to 9 and 22 of those 21 December 2017 orders bear repeating.
…
7.That each parent is at liberty to telephone X once per day between 6.00pm and 8.00pm and a missed call be returned within 24 hours.
8.That each parent is restrained from altering X’s school enrolment without the written consent of the other parent or order of the court.
9.That the parents each authorise school that X may attend to provide to the other parent copies of all school reports, examples of school work, school newsletters, notification of all school activities and parent/teacher nights and inform each parent of any remedial or correctional treatment required by X as soon as is practicable.
…
22.As a consequence of order 1, the parents must consult with each other and make joint decisions with respect to major long term issues as defined in section 61B of the Family Law Act 1975 (Cth) including, but not limited to:
(a) the child’s education, including primary and secondary school;
…
(c) the child’s health and particularly any specialist medical treatment;
…
(e)any changes to the children’s living arrangements which would make it more difficult to spend time with the other parent.
(emphasis added)
The third wave of litigation
By November 2018, 11 months after the December 2017 final decision, the Mother was again agitating to change the child’s primary school and the Father wanted to communicate with the Mother about the secondary school for the child in advance of the 2021 year 7 start to secondary school. Neither issue was resolved and testy communication ensued over the next year or so.
This third and current wave of proceedings was initiated by the Father on 4 June 2020, just two and a half years since the previous final orders when the Father sought a decision as to secondary school and again sought equal time.
This matter first came before me on the City D circuit on 25 November 2020. This circuit was conducted via Microsoft Teams due to the COVID-19 pandemic. I adjourned the matter to my Melbourne list the following week to 1 December 2021 where I would be able to give this matter more time outside of a busy circuit list.
I then determined which secondary school the child should attend to start year 7 and whether there should be continuing counselling for the child. I refused the Mother’s application to cease the overnight Thursday of week 2. I ordered the child attend the school then advocated for by the Mother.
The parties had been interviewed by the Family Report writer for another family report in this child’s life. In that interview the Mother had said she would move to New Zealand whether or not the child was permitted to move with her. Shortly prior to the 1 December 2020 hearing the Mother filed an affidavit indicating that was no longer her intention and she would not home to New Zealand if the child was not to move with her.
On 1 December 2020 I set the matter down for a three day special fixture final hearing on 10 May 2021 to be heard in Melbourne as this was more appropriate than retaining a matter of this complexity in a circuit list with many other matters.
Last four interim hearings (2020)
The matter came before the Court urgently on 23 July 2021 after the child had been over held by the Father on Monday 17 July 2021 but returned to school and her care on Wednesday 19 July 2021 after the Mother’s urgent application was served on him. Orders were made by consent. The matter was before the Court on 27 July 2021 when trial directions were made and by order of the Court, until further order the parties were restrained from facilitating counselling for or with the child. The counselling is referred to later. On 30 November 2020 I heard the then next extant urgent interim dispute. The parents had not agreed upon a school for the child to start secondary school in 2021. The Mother wanted a private school closer to her home and the Father wanted one closer to his.
In Ewart & Wilton (No 2) [2020] FCCA 3587 I determined the child should enrol in the school the Mother proposed. Further the Mother sought to reduce the Father’s time by deleting the Thursday overnight time in the alternate week and I dismissed that application. The ICL and the Mother sought that the parents facilitate counselling with Ms F (‘Ms F’) (who had once worked in the same office as the Mother and who had been chosen unilaterally and secretly by the Mother) and the Father sought a different counsellor and independent counsellor for the child. I determined the child should attend Ms F as sought by the Mother and the ICL with the first appointment a couple of days hence.
The matter was relisted (at the parties’ request) before me a couple of days later to get the parties out of the next stalemate their parenting was in. The appointment with Ms F turned out to be on the same day as the child’s graduation on a day she would be in the care of the Father and the appointment would curtail, but not stop, the child’s enjoyment with the Father of her grade 6 graduation day. I determined the counselling appointment would go ahead as arranged by the ICL and sought by the Mother.
The fact that four interim hearings were necessary in the latter half of 2020 demonstrates the difficulty the parents had in implementing equal shared parental responsibility as determined by the second wave proceedings.
THE FINAL HEARING
The matter had been fixed for final hearing on 10 May 2021. The final hearing was heard over seven days in total and on most days I sat later than usual court hours. The matter had been listed, in reliance upon the parties’ estimates, for three days. Proceedings are slower over “Microsoft Teams” video link than the traditional face to face hearing.
The matter began face to face in Melbourne and was heard over five consecutive days on 10, 11, 12, 13 and 14 May 2021. The matter returned for a further two days of hearing on 3 and 4 June 2021 which was intended to proceed face to face but was heard electronically via Microsoft Teams due to the COVID-19 lockdown restrictions that were implemented in late May 2021. At the end of the seventh day of final hearing final addresses had not been completed and the parties agreed they would be in writing. The last written submission was received on 13 June 2021.
Both parents continued to complain how the other dealt with medical issues or events that occurred well before the 2017 final orders. Save to acknowledge the antagonistic style of communication between them and that each still seeks vindication of his or her position in those events I will not otherwise deal with those events. Given the Mother’s case that the third wave of litigation was the Father subjecting her to more of the same some exploration of those events was necessary. However agitation of those pre 2017 parent rights and wrongs would ordinarily have ceased with the 2017 orders and I will not observe the parents (not necessarily equal) appetite for revision beyond what is necessary to determine these proceedings and I cannot determine the rights and wrongs of every event.
DOCUMENTS RELIED UPON
In preparation for the final hearing, the parties prepared a 599 page joint court book which was helpfully prepared by the ICL and counsel.
The documents the Father relied upon at the trial were:
(a)Outline of Case filed 5 May 2021;
(b)Further Amended Initiating Application filed 12 April 2021
(c)Trial Affidavit filed 12 April 2021;
(d)Affidavit in Reply filed 26 April 2021;
(e)Affidavit of Ms G (the Father’s wife) filed 26 April 2021;
(f)Affidavit of Ms M filed 9 November 2020; and
(g)Affidavit of Mr N filed 6 November 2020.
(h)Written closing submissions filed 7 June 2021.
The documents the Mother relied upon at the trial were:
(a)Outline of Case filed 5 May 2021;
(b)Further Amended Response filed 5 May 2021;
(c)Trial Affidavit filed 20 April 2021;
(d)Affidavit of Mr H filed 20 July 2020;
(e)Affidavit of Ms J filed 14 July 2020;
(f)Affidavit of Ms O filed 23 April 2021;
(g)Affidavit of Ms P filed 23 April 2021; and
(h)Affidavit of Mr Q filed 23 April 2021.
(i)Written closing submissions filed 11 June 2021.
The ICL relied upon at the trial were:
(a)Outline of Case filed 5 May 2021; and
(b)Revised minute of orders sought.
(c)Written closing submissions filed 13 June 2021.
Each party tendered many further exhibits during the hearing.
During cross examination on day five of the trial the Mother revealed that she had months earlier discovered text messages on an “app” exchanged between the child and a friend. This exchange raised serious questions about the child’s coping at her homes and at school and her mental health. These concerns had not been raised by the Mother with the Father or the ICL or in oral evidence in chief on the first day of the hearing. The Mother had “screen shotted” those texts messages and upon request by cross examining counsel were printed and tendered in evidence. Following the production of the text exchange the ICL sought to recall the Mother, the Father, Ms G and the family consultant for further questions. This was not opposed and I permitted that to be done. Necessarily the length of the hearing extended. That evidence had real significance for the determination of the best interests of the child.
The parties commenced final addresses on the afternoon of the seventh day of the trial. The final addresses were unable to be completed in the time available. Orders were made that allowed for further written submissions following the trial. Counsel for the Father emailed written submissions on 6 June 2021, counsel for the Mother emailed reply submissions on 11 June 2021 and counsel for the ICL emailed reply submissions on 13 June 2021.
In these proceedings there have been two family reports prepared. The first family report was prepared in the first wave of litigation and is dated 21 June 2017. The second family report was prepared for this current wave of litigation and is dated 5 October 2020. The family consultant who prepared the October 2020 report was called as a witness and gave evidence at the trial on 13 May 2021 (day 3) and 4 June 2021 (day 7).
Both parents, Ms G (the Father’s wife), Ms J (the maternal grandmother), Mr H (the Mother’s son) and the family report writer (of the October 2020 report) were cross examined.
DETAIL OF ORDERS SETTLED BY THE PARTIES
On 8 July 2021, when I handed down my decision and reserved my reasons, I also asked for, consultations between, and submissions from, the parties as to the form of my orders to give effect to my decision in circumstances where the nuts and bolts of the potential orders were not agreed and I had not been addressed on those. These were substantially the details of school holiday time and travel arrangements between New Zealand and Australia. The parties substantially reached accord as to the form of my orders and there remained one dispute for the Court to resolve that had arisen since the hearing and as a consequence of the decision as to where the child should live. The issue was whether the child would attend the following day for new school uniform fitting with the Father or with the Mother for a serious veterinary examination of one of the child’s pets. I determined on 8 July 2021 that the child should attend the vet with her pet and the Mother and different arrangements should be made for the new school uniform fitting.
COMPETING APPLICATIONS
At the start of the final hearing the Father’s application that the Mother be dealt with for contravention of the orders was withdrawn.
At the time of filing the outline of case, the orders sought by the ICL were to the effect that that the Mother have sole parental responsibility, the child live in Australia with the Mother and for the current spend time arrangements to continue, the child to attend the current school and attend upon the counsellor Ms F that she was then attending and for the Mother to continue to engage with treating psychologists. By the end of the hearing the ICL had changed to accept that the Mother would relocate to New Zealand and sought that the child live in Australia with the Father.
At the commencement of the final hearing the orders sought by the Mother were to the effect that:
·Sole Parental Responsibility to the Mother but she notify the Father in a timely manner of any major long-term decisions;
·X live with the mother, who would relocate to New Zealand;
·X spend time with the father:
·7 nights during either term 1 or term 3 holidays
·all of the term 2 holidays (14 days)
·half Christmas school holidays alternating in even and odd years with first and second half (21 days);
·Father pay for travel for his choice of term 1 or term 3 holiday period;
·Mother pay for travel costs for Term 2 and Christmas time;
·Mother responsible for all education and medical costs;
·Consequential and other orders regarding communication, travel and the like.
The Mother’s outline stated, if her application was not successful to relocate the child’s residence with her to New Zealand, that she would move to New Zealand and in that case upon her relocation orders should be:
·Father have sole parental responsibility but notify the Mother in a timely manner of any major long-term decisions;
·Father to ensure that X continues counselling with Ms F as directed;
·X spend time with the mother in New Zealand:
·7 nights during either term 1 or term 3 holidays
·all of the term 2 holidays (nominally 14 days)
·half Christmas school holidays alternating in even and odd years with first and second half;
·Father pay costs of travel for Term 2 and Christmas time;
·Mother pay for term 1 or 3 time;
·Consequential and other orders regarding communication, travel and the like.
This was not an alternative position or case but simply anticipating the question that the Court would likely ask in opening; what if the Mother’s application was not successful? And to have a voice in that event.
By the conclusion of the trial the Mother’s position had firmed to being that it was her intention to move on 12 July 2021 or as soon thereafter as the matter had been determined. Hence there was some urgency to determine the matter quickly. I have been hearing many other matters every working day since the final written submissions were received and hence these reasons are shorter than they otherwise may have been.
The Father’s second Further Amended Application filed shortly before the Final Hearing set out in detailed his then primary case, or his view of the best interests of the child. That was that parents continue to have equal shared parental responsibility, the child’s school change to a private school closer to where he lived, that the child live with the Mother and spent, in school term, 6 nights a fortnight with him (a 4 + 2 alternate week arrangement) and half school holidays.
The Father’s alternative application was, if the Mother moves to New Zealand, then the child live with him, and spend 7 days of the first school term holidays, all of the second and third school term holidays and 21 days of the long summer holidays with the Mother and that the travel costs be at the Mother’s expense. This was an alternative, or secondary, position not simply anticipating the question that the Court would likely ask in opening if the Mother’s application was not successful.
The Father’s outline stated if the Mother was permitted to relocate the child’s residence to New Zealand was that from that move that the Mother have sole parental responsibility and the reverse of the school holiday times he proposed for the Mother. This was not an alternative, or third position but simply anticipating the question that the Court would likely ask in opening of what should happen if the Mother’s application to relocate the child’s residence was successful.
By the first day of the hearing, and confirmed by the conclusion of the hearing, the Father’s case accepted, or at least did not question, that the Mother would relocate to New Zealand, and what had been his secondary or alternative position became, in substance, his primary application.
There is no question that each parent is devoted to, and deeply love, the child. The Mother’s decision that she would relocate to New Zealand whether or not her application to relocate the child’s residence was accurately described by her psychologist, Ms R, as “deeply disturbing for her”. This was confirmed by the circumstance of the Mother changing her position on that, for her, most difficult issue. On 1 September 2021 the Mother told the report writer that she proposed to move to New Zealand whether or not her application to move the child to New Zealand was successful. About two and a half months later in her 17 November 2020 affidavit the Mother deposed to the effect that she would not move unless the child moved with her and that her statements to the report writer were at a time when she was “under immense stress”, particularly following a difficult time of shared parenting with the father through the Covid-19 pandemic…..” and “was (then) overwhelmed and at her wits end with having to deal with what seemed like never ending disputes with (the Father)”.
The 17 November 2017 affidavit was in preparation for the looming interim defended hearing as to which school the child should attend to start year 7 referred to earlier.
The Mother’s change of position of moving to New Zealand whether the child moved or not was communicated to the Father a few days before the final hearing began. He then maintained that the best outcome for the child would be for the child to live 6:8 per fortnight between the parents and sharing of school holiday’s (8 nights with the Mother and 6 with him). He did not seek to restrain the Mother from moving.
THE MOTHER’S CASE AND EVIDENCE
The essence of the Mother’s case was that the Father’s unrelenting pursuit of an equal time agenda, his refusal to engage in timely discussions as to which secondary school the child should attend, his opportunistic bargaining choice of school for equal time (when an equal time regime had been rejected by the Court in 2017), his rigidity in dealing with changes of time to accommodate the child’s pony club/show activities, his opportunistic over holding of the child at the start of the COVID-19 lock down and his capacity to cause trouble for the child’s sensible school and counselling arrangements all combined to seriously impact upon her mental health and were seriously detrimental to the child’s welfare. Further the Father’s behaviour was either intentional to damage her mental health or without insight as to its effect on her and on the capacity of the parents to co parent the child.
In substance, the Mother contended that these events, the likely continuance of conflict between the parents about the child and the impact of that conflict upon the child meant that something had to change to stop the conflict for the sake of the child. She said the Father was emotionally manipulative and controlling. Hence, she contended, the child’s best interests would be best advanced by the Mother relocating with the child to New Zealand to reduce the time the child spent back and forth between the high conflict parent’s households in the circumstances where the Mother and child would be relocating to near the Mother’s extended family in New Zealand and where a high quality education was available with an emphasis on horses which the child loved. Further the child’s necessary connection with her counsellor and circle of close and supportive friends could be maintained by electronic communication and the school holiday time the child would spent with the Father in Australia.
The Mother proposed that in New Zealand the child would attend a high quality private school with a horse program where the child may board for some of the week. The Mother was not certain where she would live and work. But the Mother was confident she would obtain employment in New Zealand, be able to purchase a suitable home and that the material requirements of the child would be well met in New Zealand and that the child would benefit from the closer interaction with her family of origin in New Zealand. The Mother candidly and without hesitation conceded the Father promoted the child’s connections and time with her circle of friends when she was in his care.
The Mother’s counsel opened her case with submissions that included the following:
MR HALL:In respect of the matter overall, the mother’s position is this: she has dealt with this since 2014, again in 2017, again over the course of the last nearly 12 months. There have been a number of hearings. She has been brought to court many, many times and, in colloquial terms, she’s over it. She believes that the only way that this can be stopped is for there to be a complete change in the circumstances that apply with this child and she is prepared, in a sense, to put her money where her mouth is because what she says is, “If I can’t relocate then I accept”… “then I accept that there has got to be a change which brings about a complete change of circumstances for X,” and that, in effect, is the essence of her position. I’m not sure that I can take that much further other than to say that she believes that all of the things that might be mentioned in relation to the relocation for X not being good are equally possible of the reality that relocation might be an absolute boon. It might be a terrific thing. It might actually give this child some break from what you can only describe as distrust, parental conflict, being brought to court on – her mother being brought to court on at least three occasions, and so in that light it would be the mother’s position that the court needs to carefully consider what the actual relocation means.
The other thing that the mother will say is that if we look at the history – and, unfortunately, we do have to look at the history, but if we look at the history of the father and his, if you like – in very loose terms – compliance with orders and attitude to orders, she says that it is much more likely that she will foster a relationship with father should she – should X be allowed to relocate with her than the opposite and that will be borne out, she says, in the evidence which will be presented to the court. So what she says is very clearly, “If I’m able to relocate with X there will be a relationship maintained with the father. If I am – if X is not allowed to relocate I am relocating anyway because I can’t handle this anymore, but I do not believe that the father, given past performance, will allow the mother to have or allow me to have the relationship that I believe I should have with X.”
(see: page 13 of the Transcript dated 10 May 2021)
The second plank to the Mother’s case was that, as described in her ‘Notice of Risk’ filed 14 July 2021 the environment of the Father’s home, which included Ms G (the same Ms G mentioned in the despatches of the 2016 police reports described above) put the child’s welfare at risk. In that Notice of Risk, the Mother asserted:
44.1. That the father has had 8 years of unstable mental health.
44.2.That he is so “committed to harassment and abuse of the Applicant he uses the child as a weapon.”
44.3.The child suffers significant emotional abuse by the Father. If the Father’s mental health deteriorates any further, he may also harm the child in other ways.
44.4. That Ms G “emotionally abuses the child.”
44.5. The father shows signs of severe memory impairment.
44.6. He has a long history of serious medical neglect.
(see: page 12 of 38 of Father’s closing written submissions).
In cross examination the Mother was asked to describe the Father as a person and as a parent. The Mother said the Father was:
Quite sort of fixed in his ideas of what he believes to be right, and very combative. It’s like he has to have a fight, that he lives for the fight, and that it would be too boring if he didn’t have a fight… He’s a hard-working person… I think, as a parent, I’ve always described him as a good part-time parent, and I think that he loves the child very much. And I don’t doubt that at all. And he takes her and has exciting times with her. And he thinks about her connections with her friends as in, you know doesn’t monopolise her time and not let her have time with friends. It’s more the other way around… He’s actually quite good at facilitating or fostering her relationships with her friends. So I’ve always described him as a good part-time parent. But I think he lacks capacity to be more than a part-time parent… I think he has a lot of difficulty putting his feelings about me and our history aside, and just looking at what’s best for (the child). I feel his views and his actions are very much contaminated by a lot of our past and the stuff that goes back many, many, many, many years
(see: page 319 of the Transcript dated 12 May 2021)
The Mother was highly critical of Ms G and said she worried about how the child is going to be emotionally living with Ms G when she (the child) no longer complies with what Ms G wants her to do. She said that she worried that Ms G would dominate her and also emotionally abuse her. She said that:
I’ve suffered a lot of emotional abuse in terms of all of the lies that get told about me and affidavits (referring to allegations made in affidavit material in the first and/or second wave of proceedings)…
… I lie awake at night wanting my daughter to be physically safe, but more importantly, emotionally safe. And I don’t think she is in that house. And I worry about that being worse as the years go by.
(see: page 320 of the Transcript dated 12 May 2021)
The Mother also said that Ms G had some positive attributes:
…She is very generous… She takes (the child) shopping a lot. She buys her lots of presents and clothes and things like that so she certainly very generous… Just on Sunday (the child) came home with Mother’s Day presents for me… I imagine it was her that was responsible for that.
(see: page 321 of the Transcript dated 12 May 2021)
The Mother conceded that it was likely to be Ms G who had organised the presents at Christmas for her and her mother and the child. In fact Ms G and the child had sown handmade fleece blankets.
The following exchange occurred between the Mother and the Father’s counsel:
MS LANE:But would it be fair to say, generally, X will have presents that Mr Ewart and Ms G will assist her in getting for you for birthdays and Christmas?
MOTHER:Yes.
MS LANE: Mother’s Day, presents at Easter or chocolates?
MOTHER: Mmm.
MS LANE: And also for Mr H?
MOTHER: Yes, I think Mr H gets Christmas presents. I know that, yes.
MS LANE:Okay. And cards. Get a Christmas card. I mean, it’s not just a present. You get a present and a card?
MOTHER:Yes.
MS LANE: A birthday card. Things like that?
MOTHER: Maybe something like that, yes, stuck to the present.
MS LANE:Okay. And also for your mother, when your mother has been living with you?
MOTHER:Mmm.
MS LANE:Yes. And that that’s not something that has just happened recently. That has been going on for a while – for a number of years?
MOTHER:There has been a few over the years, yes.
MS LANE:Yes. All right. And is that something that you’ve reciprocated?
MOTHER:No, I haven’t.
MS LANE:And do you see that as Ms G and Mr Ewart, but I think you’re identifying some of this as coming from Ms G, as her supporting X’s relationship with you and your family – you know, her family as well, but maternal family?
MOTHER:No, I don’t see it like that at all.
MS LANE:Okay. Do you think there’s an ulterior motive?
MOTHER:I often think it’s atonement.
MS LANE: For past sins?
MOTHER:I went to court three times and sat there as she tried to take out an AVO against me for no good reasons.
(see: page 322 of the Transcript dated 12 May 2021)
The Mother resolutely and with complete confidence regarded her ability to care for the child and to educate her as significantly better and superior to the Father’s ability in those things. Her evidence included the following exchange:
MS LANE:Three. All right. Thank you. Now, during the COVID period, X was homeschooled, wasn’t she, for a period. Like most Victorian students for some of the time. And the father, or Mr Ewart asked you whether he could extend his time on the Monday, instead of dropping her to school on Monday morning, do that homeschooling every second Monday, didn’t he?
MOTHER:On several occasions and on Fridays as well he wanted to change the orders.
…
MOTHER:I couldn’t have my life being changed around all the time because I needed to know exactly where I was going to be, where the child was going to be, etcetera. I couldn’t have everything changing from one week to the next. Now, I’m a fully qualified primary teacher. And when they first sent the kids home from school, they gave them revision work. So I created an entire learning plan for X. Her grandmother was a primary school teacher for something like 42 years. So X was being homeschooled in a house with two qualified primary school teachers. She on occasion came to my work because I got approval from my work, and she would be in her own little private office doing her schoolwork. And I might go down for a couple of hours during the day. I was still seeing class face-to-face just downstairs. And then the rest of the time I would be at my office, and she was just there. And so I could go in and say are you okay with this, or she could ask me about something like that. So I didn’t actually need Mr Ewart’s assistance because - - -
…
MS LANE:but would there have been any difficulty for her, because from – I suppose that it would have potentially freed you up on the Mondays regularly so if you were moving around…?
MOTHER:I didn’t need any freeing up. I had everything 100 per cent under control. I’m a busy working woman, so I do. I’ve always had everything 100 per cent under control. And having my mother here has been of great assistance with that. I declined it primary because we have court orders that says this is when she’s with Mum. This is when she’s with Dad. And over the years it has been far easier to deal with Mr Ewart if you stick to the court orders, because if you don’t stick to them, there’s no trust, yes.
(see: page 325-326 of the Transcript dated 12 May 2021).
When cross examined the Mother by demeanour and statement demonstrated how strongly she was prepared to assert that she believed the matters asserted in the Notice of Risk were true. I found the Mother to be a mostly reliable witness. When it came to interpreting the Father’s motivations behind any of the conflictual communications or events the Mother was unstintingly critical of the Father and was simply unprepared to cut him or his wife any slack. The Mother is an educated and intelligent person and has applied her considerable intellect and her deep seated resentment of the Father and Ms G to a winnowing of the facts, and justification of her own role in the parental conflict, to fit her case. The Mother has only a little understanding of her own role in the parental conflict.
The Mother had complete confidence that upon relocating to New Zealand she would find appropriate employment within her profession. The Mother is highly experienced, highly motivated and on the evidence I have skilled and successful in her profession. I accept her evidence that she will find appropriate employment in New Zealand and be able to support herself and the child were I to determine that the child should live with her in New Zealand.
The Evidence of Mr H
Mr H is 24 years old and works as a health care worker and lives in a different State a considerable distance from where the parents live. He is the son of the Mother and was the stepson of the Father. He plans at some point in the future to also move to New Zealand. He is loyal to his mother and has a high regard for her parenting. He left New Zealand with his Mother at a young age when he says that he is very close with his sister, the child and that they share common interests.
He is highly critical of the Father as a parent and step-parent. He is particularly critical of what he regards as the Father’s inadequate housing arrangements over a period of five years where he lived with the Mother and the Father. He is highly critical of the Father’s role in his life, his Mother’s life and his sister, the child’s life. His affidavit and his oral evidence was almost entirely mere opinion.
However I find that he is being honest when he expresses his highly critical opinions of the Father and his praise for the Mother: there is no doubt those are his opinions.
Save as to the S School application, I was not asked to, and will not, attempt to make findings about whether Mr H’s criticisms of the Father are warranted. However the depth of his aversion to the Father as a father to his sister is clear. The Mother gave evidence that she relied upon and was supported by Mr H in her decision to move to New Zealand and to move to New Zealand whether the child moved or not.
Mr H would not emotionally support the Father’s relationship with the child if he had the opportunity.
The evidence of Ms J
Ms J is the mother of the Mother and the child’s grandmother. Ms J has lived her life in New Zealand say for the last two years when she lived with the Mother and the child in Australia. Ms J gave evidence of her and the Mother’s family being a large extended family and a good support network in New Zealand. At paragraph 15 of her affidavit filed 8 July 2020 Ms J’s opinions included that:
15.(The Mother) needs to get on with her life and be free of criticism and harassment from (the Father) and (the child) would benefit from bonding with her New Zealand family and having a settled education experience at a first-rate school (in New Zealand).
Ms J was highly critical of the housing that the father had provided when the child was a baby and opined that Mr H and the child had both “suffered trauma as a result of their living conditions”. Ms J also opined:
8.Since I have been living here I have had many opportunities to observe the negative impacts of (the Father’s) antagonistic attitude on (the Mother) and subsequently on (the child). These have mainly been through constant texts and emails - I would describe as harassing, highly critical of (the Mother’s) parenting skills, and a deep reluctance to compromise on many decisions regarding (the child’s) activities, like future education.
Ms J had a good relationship with the Father’s mother and she described a sense of disappointment in the Father’s attitude to her at changeovers.
Ms J was very positive and praiseworthy about the child’s future with the Mother in New Zealand and of her relationship with her elder brother Mr H.
Ms J did not have a good word to say about the Father in her affidavit of evidence in chief but was slightly less critical in her oral evidence.
I accept her evidence as to the circumstances of her family and friends in New Zealand and that she moved to Australia to spend more time to get to know her granddaughter, the child.
Ms J does not have a high regard for the Father as a parent but does not have the depth of antagonism to him that her grandson, Mr H, and her daughter, the Mother, does. I find that she is unlikely to emotionally support the relationship between the Father and the child if the child is living in New Zealand, but she would not overtly interfere with or hinder that relationship.
Other witnesses in the Mother’s case
Ms O lives in New Zealand and through family has met the Mother twice and they have in recent times kept in connection on Facebook and messenger and she is keen to get to know the mother better and looking forward to her possible return to New Zealand. She has a daughter a similar age to the child and is looking forward to helping the Mother and the child settled back into New Zealand making them feel at home in any way they are able. Ms O was not required for cross examination. I accept her evidence.
Ms P lives in New Zealand and is the Mother’s Aunty. She describes the extended family connections she has and the deep sense of history of her family in the area of where she lives and opines that it would be nice for the child to get to know her New Zealand relatives better. Ms P was not required for cross examination. I accept her evidence.
Mother’s psychologist
At ‘Exhibit LAW-38” (CB page: 373/599) the Mother annexed to her trial affidavit a short letter of report from psychologist Dr R (‘Dr R’) reporting to the Mother’s GP. Without explanation Dr R was not put on affidavit or made available for cross examination. There was no objection to reliance upon Dr R’s report. There is no evidence or indication that the psychologist understood that her report would be relied upon in the legal dispute that the report commented upon. The report is within the therapeutic setting, hence there is an absence of alternative facts, the other side’s point of view and no apparent reality testing of the underlying facts reported and with the psychologist giving her opinion as to the legal proceedings. Because this is in the therapeutic setting psychologist has not spoken to the child, the Father or his partner.
The psychologist opined that the Mother had been subject to ongoing apparent legal harassment over nine years and met the criteria for a diagnosis of Posttraumatic Stress Disorder and that the Mother was having repeated symptoms of intrusion accompanied by severe psychological arousal and psychological distress; she experiences persistent avoidance of stimuli associated with the traumatic events with her for example avoiding opening up text and mail and email. The psychologist reported to the general practitioner that:
An alternative diagnosis would be major depressive disorder with significant trauma symptoms. Either way, Ms Wilton is struggling- and understandably so- with her exposure to the ongoing harassment.
What is deeply disturbing for her is her current decision-making regarding relocation to New Zealand. I am concerned for her in the long run in terms of leaving her 12-year-old daughter in Australia with the father. I suspect the father and his partner are influencing the daughter to remain in Australia with them…Now there is the possibility that regardless of whether Ms Wilton relocates to New Zealand, that the court may place her daughter in the care of the father giving him custody over her daughter… There is no guarantee that Ms Wilton will be seeing much of her daughter if the court gives the father custody of her. She would be in a better position then to make a decision to relocate to New Zealand. I understand the forthcoming court hearings occurring on 10 May, and Ms Wilton is well advised to remain until that time...
…Ms Wilton will remain ill until such time as she is able to free herself of the legal harassment. My concern for her is that if she does relocate to New Zealand I am not convinced that harassment will stop anyway… Her relocation to New Zealand is considered to be symptomatic of her current trauma symptoms.
The Mother will be completing the Personality Assessment Inventory which provides an account of her symptomology.
Having observed the Mother in the witness box it is clear that she is struggling psychologically. The Mother has been struggling with a range of difficulties in addition to the burden of co-parenting with the Father and dealing with that conflict. In cross examination the Mother spoke of her struggle in balancing parenting as a sole parent, a demanding professional life, significant travel from home for work and parenting arrangements, the burden of caring for farming livestock and multiple pets that required specialist care and dealing with drought and lack of water at her home at times.
It is unfortunate that it appears (from the report only) the psychologist was not informed of, or explored, the Mother’s contribution to the parental and the legal conflict over the years and there is no evidence of the extent to which the mother has herself contributed to those conflicts has been addressed in the therapy with the psychologist. However the psychologist’s circumspection that a relocation to New Zealand would be a panacea for the Mothers psychological struggles appears insightful and solidly based. I find that there is a real risk that the Mother’s psychological struggles will not improve in the long run if the child relocates to New Zealand with her.
THE FATHER’S CASE AND HIS EVIDENCE
The Father’s case was that the allegations of what his intentions were misguided and he was motivated by the child’s best interest and he accepted that at times his communication was poor but that he would prefer to co-parent the child with both parents in Australia. His case was that he and his partner had a close relationship with the child and facilitated involvement in team sport and activities and connection with friends that the Mother did not. He asserted that the Mother withheld important information about the child from him. Further, he said, on many occasions the Mother had unilaterally made parenting decisions about which he should be consulted and that the Mother held a poor view of the benefit to the child of his household and had on many occasions failed to communicate important matters about the child and had been, and continued to be, very difficult to co parent with and that she had substantially contributed to the trouble between the parents that she complained of.
His case was that the Mother had an overwhelmingly negative view of himself and his household including his partner (and now wife) of many years. His case was that the Mother could not be relied upon to foster the child’s relationship with him from New Zealand and the child’s counsellor and close circle of friends were in Australia and those relationships were very important to the child and would be interrupted by the child moving to live in New Zealand.
Hence, the Father contended, the child should live with him and his wife in Australia and visit the Mother during school holidays.
I found the Father to be a mostly reliable witness. His evidence underplayed the extent to which he opportunistically took advantage of developments to pursue an agenda of equal time and exaggerated motivations for his behaviour which were other than pursuing an agenda of equal time. This was most significant in regard to his evidence relating to the S School conflict addressed later. His evidence about his now ready acceptance of the benefit of Ms F as the child’s counsellor is contradicted by the nature and tone of his email communication to the Mother about the school holiday appointment. He has tailored his evidence of his feelings about the counselling to fit his case. Given he now embraces the benefit of that counselling for the child little turns on this.
As to the most contentious issue between the parties, I find that the Father will comply with Court orders and promote the child’s relationship with her Mother whether her Mother lives in Australia or New Zealand. The Father and Ms G will be alert to the child missing her Mother when the Mother moves to New Zealand and the child lives with her Father.
Father’s evidence was that in late 2018, when X was in grade 4, he tried raising the issue with the Mother via email and telephone and that the Mother did not attend mediation he arranged in March 2019. At this time the Father preferred government High School. This was a little less than 12 months since the last primary school education dispute was resolved by the final orders of Judge Mercuri on 21 December 2017. No agreement about High School was reached. Hence he said it was necessary to issue proceedings about choice of school and at the same time he sought orders for equal time with the child and he so justified the third wave of litigation.
The Father has a stoic and determined personality but also, as the years and events went by, he lacked insight into how his various behaviours had added to the parental conflict. I find that he lacked any significant appreciation of how the parental conflict could or would impact upon the child and the Mother’s mental health. I find that he felt that his relationship with the child was under siege from what he perceived to be the Mother’s attitude to him, his household and his time with the child. He was at every step assertively protective of his time with the child and resistant of what he saw as efforts to distance him from the child’s life.
Exhibited to the Father’s affidavit (CB pages: 95-98/599), and not on affidavit and without objection, was a report of the Father from Dr T, a psychiatrist, dated 15 October 2020. The same report had been relied upon by the Father in the December 2020 sitting of the Court on circuit. The doctor was not required for cross examination. The doctor opined:
… Mr Ewart has alleged that his ex-wife has filed numerous notices through the court over the last 8 years related to alleged abuse against his daughter and his mental instability…
On Mental State Examination
Mr Ewart was dressed in casual attire, was pleasant and cooperative, not agitated or retarded.
Speech was of normal volume and rate.
Affect was reactive
Mood was euthymic
Thought process was coherent with no formal thought disorder
Thought content concerned about his daughter’s welfare and wants to get full custody.
Mr Ewart denied any perceptual disturbances
Insight and judgement was satisfactory
Objectively, cognitively Mr Ewart was grossly intact.
Diagnosis according to DSM V and Associated Medical Conditions
•No psychiatric functional impairment
Current Risks
•Risk to self- low
•Aggression –low
•Vulnerability- low
Management Plan, Progress, Prognosis, Discussion, Treatment and Recommendations
Mr Ewart may need to go for personality inventory test (Minnesota Multiphasic Personality Inventory) since it may be required for court purposes to exclude a personality disorder…
Medication
None required
The Father undertook this assessment with the psychiatrist to rebuff the Mothers allegations that he was mentally unwell. I accept the unchallenged opinion of the psychiatrist. The Father was criticised for not undertaking the psychological assessment contemplated by the psychiatrist. The family report writer had recommended the Father undertake psychological assessment. He didn’t. He relied upon what he regarded as the clean bill of mental health from the psychiatrist as obviating that need. In the context of the allegations the Mother made of mental ill health that approach was not unreasonable notwithstanding that I do not have what may be further relevant information from a psychological assessment. The psychiatrist referred to psychological testing in the context of a strategy to rebut potential allegations of the Mother. The psychiatrist did not opine that the Father may have a personality disorder.
I address certain events that the parties regarded as significant in their parental history separately.
Evidence of Ms G
Ms G and the Father commenced cohabitation in 2004 and they married in 2020. The substance of Ms G’s evidence was that she had a close and supportive relationship with the child, that she supported her husband the Father in these proceedings and that she had, for the sage of the child and peace and harmony, reached out to the Mother and attempted mend the personal relationship between the two women. On both these occasions her attempts were rudely, swiftly and resolutely rebuffed. That Ms G tried again after the first attempt is much to her credit and demonstrates that for the sake of the child and her husband she is able to move on from conflict.
The Mother told the report writer that she lacked trust in the Father and reported that he does not make good parenting decisions. In that context she worried for the child’s mental health and made comments about young people who self-harm due to the difficult home and school lives. The Mother expressed what was described as serious concern for the Father’s mental health and the Mother asserted that he “stays under the radar” because he does not engage with mental health professionals. She alleged that he struggles with his memory and can often be fixated on past events which occurred during the parties’ relationship. The Mother told the report writer that she was under immense stress and anxiety due to the ongoing parenting dispute with the father.
The Father was interviewed via Microsoft Teams and was described as forthcoming with information, “but at times appeared as rigid in his views and spoke in a factual manner during the interview”. The report writer had read the Mothers Notice of Risk filed in July 2020 and recited earlier in these reasons but did not specifically comment on it. The report writer observed that the Father appeared to lack insight into how a poor co-parenting relationship and repeatedly seeking shared care for X could be negatively impacting on the Mother’s well-being. The Father had multiple criticisms of the Mother’s parenting.
The Father’s wife Ms G was interviewed and she told the report writer that the Mother bordered on being a vexatious complainant due to the repeated contacts she had made with the police to raise false concerns. That the Mother had contacted the police and had them attend the Father’s home on a number of occasions was not disputed in the proceedings. Ms G told the report writer that she and the Father try to demonstrate to the child that they are willing to co-parent and that they hold regard for the Mother as the child’s mother. She provided examples such as ensuring that the child always has a present for the Mother on her birthday and offering the Mother to spend time on the child’s birthday despite it falling on the Father’s weekend but, she alleged, the Mother never reciprocated these gestures to her and the Father. That Ms G had ensured that the child had appropriate presence for her Mother on special occasions and that this was never reciprocated with additional court orders time, was not in contest in the proceedings.
The report writer described the adult relationships of the parties as follows.
56.The parties in this matter share a highly acrimonious relationship and demonstrate little capacity to co-parent effectively and successfully in a child focussed manner. Both parents are highly mistrusting of one another’s intentions and view the other parent as a barrier to successfully obtaining what they believe is in X’s best interests.
57.The parties reportedly have a history of seeking judicial support to make decisions in relation to X’s holiday and spend time, with the first application to the Court being made in 2013, when X was only about 4 years of age.
58.Ms Wilton alleges that Mr Ewart becomes emotionally abusive and controls her through X and Mr Ewart alleges that Ms Wilton makes attempts to limit his relationship with X. Further complexities include Mr Ewart repeatedly seeking that X live in a shared care arrangement, despite the Court reportedly deciding that this would not be in her best interests due to the lack of co-parenting relationship. This pattern of communication has ultimately led to Ms Wilton citing that she can no longer continue to co-parent with Mr Ewart.
59.Both parties are articulate and high functioning individuals, who agree that the long-term impacts of parental conflict and acrimony will have serious and significant implications for X and her long term emotional wellbeing.
The report writer interviewed the child via Microsoft teams and made the following observations:
57.X was interviewed via Microsoft Teams, and she presented as a chatty and softly spoken child. She was very aware of the parental dispute and acrimony, citing that this made her sad and upset. She noted that she wanted her father to stop requesting “50/50” stating that he has repeatedly discussed wanting increased spend time with her. She was also aware about the application for relocation to New Zealand and appeared unsure about the future and its impact on her. She appeared hesitant when speaking about the possibility of relocating to New Zealand, citing that all her friends lived in Victoria and that she would miss them and her father. She was aware of Ms Wilton’s intentions to relocate to NZ if the Court did not permit X to move and was concerned that she would not be allowed to have horses at her father’s residence if this occurred.
58.It was evident that X was passionate about horses, caring for them and horse riding. She showed the writer a book she was reading about horses and stated that if she lived with her father, there would be no space for her horses or ponies. She also spoke extensively about her small, but close knit circle of friends who appeared to bring her lots of joy.
…
60.During the interview, X repeatedly requested that her counselling sessions resume, citing that it is her “safe space” to discuss her feelings, particularly in relation to spend time and the parental dispute. When asked who she spoke to about her worries, X noted her psychologist.
61.X reportedly shares a close relationship with her brother, Mr H and her paternal extended family, Ms J, and her immediate and extended family.
62.Observations between X and her parents were not conducted due to the COVID-19 Pandemic restrictions.
…
68.X presents as a bright and empathetic child, whom like most pre-teenagers, loves her friends and her hobbies, which mainly includes her love for animals. X is well aware of the parental conflict about her schooling, Mr Ewart seeking increased spend time and her mother’s intentions to relocate to New Zealand with or without her. X presents with apprehension about the possibility of relocating to New Zealand. Furthermore, X presents as a child who does not want to displease either parent, and lacks the opportunity to have her voice heard amidst the ongoing parental conflict. An example of this is X’s psychological sessions being stopped due to Mr Ewart’s fear of Ms Wilton “building a case” against him, rather than him seeking to be involved and supportive of X.
As to the future the report writer’s observations and opinions included the following:
74.If Ms Wilton’s application for relocation is denied, and she is agreeable to continuing to reside in Australia, the viability of shared parental responsibility and current spend time arrangements may need to be reconsidered. It appears that X has an established relationship with Mr and Mrs Ewart, and a reduction of spend time will not significantly hamper the parent-child relationship. A reduction in spend time may decrease the parties’ conflict with less need to negotiate spend time, schooling arrangements and logistical issues, particularly as X enters into adolescence.
At the time of the report interviews the Mothers position was that if not permitted to relocate the child’s residence to New Zealand she would move without her and leave the child in the full-time care of the Father. The report writer did not express a view as to whether the child’s welfare would be best advanced by her relocating to New Zealand with her Mother or remaining with her Father.
The Report Writers second cross examination
The report writer was cross examined twice. The first time she was interposed during the cross examination of the Mother. The second time was when she was recalled cross examination following the revelations of what I have described as the March/April events.
In the second cross examination the report writer was asked about her observation of the mother assuming “a higher position of governance” and it was put to her that the Mother says that her decision-making comes from the fact that the Father’s just so difficult to deal with and constantly pursuing an agenda where everything will be turned into, (1) pursue equal care, (2) to have an argument, (3) to have no decision actually made and that is why the Mother says that she is in the position she is in but taking into account those complaints from her point of view the report writer was asked whether the Mother has a default position, when it comes to the child’s parenting, of assuming a higher position of governance? The report writer answered: “I would say that-that is what I observed during my interview with her.”
In the second cross examination counsel for the ICL put the screenshot and discord messages to the report writer. The report writer observed that those messages on their face were not consistent with how she presented at the time of the family report and that it looked like a clear deterioration and how she is feeling about everything that’s going on.
The report writer was asked and answered the following question:
MS MARIOLE: Generally speaking, how important are friendships at X’s age and as a pre-teen? How significant are they, in the context of support available to a pre-teen, generally?
FR WRITER: Extremely important, and it – again, it appears from these text messages that stability in her friendship groups is something that she has sought out despite everything that’s going on. I mean, you know, she says there that – something about living with … in there:
I want to stay with you too – stay with you forever.
(see: page 697 of the Transcript dated 4 June 2021)
After discussing the child’s mental health and the risk of self-harm the report writer was asked by counsel for the ICL whether based on her assessment was there any suggestion that the Father and his household including Ms G were not capable of dealing with the issues stemming out of the Exhibit ICL 3 - 3 June 2021 text messages. The report writer observed in the following passage:
FR WRITER: …Not necessarily. I think there needs to be really clear plan in place, like a blanket around the child, in whichever parent will be her primary carer needs to support that plan really well…
MS MARIOLE: …What you mean by the blanket?....
FR WRITER: I think a - a wraparound of services for her…. Mental health services…
MS MARIOLE: … Do you think the father and his household are capable of dealing with these issues?
FR WRITER: I don’t have any other reason to believe that they’re not, based on the information that I’ve had….. If the child accessing therapeutic support becomes an issue of contention between the parents, … That would be my concern biggest concern.
…
and based on those issues that there are being canvassed in those messages, does that lend itself to minimising the number of significant changes going forward for (the child)… Yes, definitely. Just reading these text messages and her identifying that that safety net is within the stability of those should friendship groups or this friend, you know, it’s-it’s quite important that…. It’s quite important that she has as much familiarity as possible through… What she knows already… It (the txt messages) reads like there’s some…. Figuring out of sexuality and things like that here as well. … They’re really big things in a child’s life… And with all that happening for her and inside of her, if we can keep the things around her… stable and predictable, … It will just create that sense of safety for her
(see: pages 698-699 of the Transcript dated 4 June 2021)
In the Mother’s counsel asked the following question which was answered as set out:
MR HALL:Yes. And you talked again about stability and what effect – or what these messages tell you about stability. You talk about stability and predictability. Is that correct?
FR WRITER: Yes.
MR HALL: And that’s for X in her life, is it not?
FR WRITER: Yes.
MR HALL:Now, stability could occur whether she lives with Mum in New Zealand or father in Australia, couldn’t it?
FR WRITER: I think there’s a likelihood of increased change. It’s – you know, it’s – it will – it’s apparent. Like, it’s – the change will be increased if X does relocate to New Zealand. It – because there’s going to be more, you know, change of friendship groups, area – all of that, so, yes, in terms of – in terms of caregiver, stability could occur with the mother or father. Is that – is that your question?
(see: page 706 of the Transcript dated 4 June 2021)
I take into account all of the evidence including all of the cross examination of the parties, the witnesses, the detailed closing written submissions and the family report writer not only the parts cited above. In closing submission counsel for the ICL advocated for the child to live with the Father. Many of the observations and complaints made by the Mother in final address had some substance but did not grasp the fact that many of those same criticisms apply to the Mother and the Father.
SUBDIVISION BA: BEST INTERESTS OF THE CHILD
Section 60CA of the Act commands that I must regard the child’s best interests as the paramount consideration and I did. Section 60CC set out the matters that I must consider in determining what is in the child’s best interests and my consideration of those matters in involves the matters recited in these reasons and the following. The following headings relate to the factors set out at section 60CC (2) to (3) (a)-(m) of the Act.
The benefit of the children having a meaningful relationship with both parents
This is one of two primary considerations I must take into account. The parties agreed that there is benefit in the child having such a relationship with both parents. It is in her interest that she does. At the centre of the case was the dispute as to which parent will be most likely to promote the child’s relationship with the other parent. The Father’s household is more likely to promote the child’s necessary relationship with the other parent than vice versa. The Mother’s profound and continuing antipathy to Ms G, her capacity to attribute the worst motivation to the Father and her belief in the matters described in her 2020 Notice of Risk (see [67] of these reasons) at the same time as acknowledging good aspects of his parenting (see [68] of these reasons) mean that it will be difficult for her to promote that relationship, which the child needs from New Zealand. At the time of the hearing travel between the countries was possible but by the time of announcing my decision this was less certain.
The Father would prefer for the child to live between households, not simply with him for the bulk of the time. He genuinely acknowledges the child’s need for substantial time with and a meaningful relationship with her Mother as does Ms G. He is likely to promote the child’s relationship with her Mother in New Zealand from Australia.
The need to protect the children from physical or psychological harm.
This is the second primary consideration and must be given greater weight than the first primary consideration. There is a risk of psychological harm to the child in either household including the potential for harm caused by the conflict between her parents, and caused by their capacity for unilateral parenting decisions. The March/April text messages and the deterioration in the child’s health apparent in them demonstrate the difficult situation the parent’s conflict has placed the child in. The risk of psychological harm includes exposure to one parent’s views of the other’s household and frequently placing the child in a conflict of loyalty situation. This significant risk applies to both parents but this risk in greater in the Mother’s household.
This risk necessitates psychological counselling for the Mother to attempt to ameliorate that risk order 20 ensures that will occur.
Any views expressed by the child
The ICL informed the Court and the parties of the child’s views. The child is not impressed at living in Australia with her father and without her Mother. The child is not impressed at living in New Zealand with her Mother and without her Father and her friends. She wants to be able to spend regular and frequent time with both parents and the friendship group she has established. The child wishes to maintain connections to her friendship group in Australia and to life in the environment she knows. She wishes to be loyal to both parents. The child wanted the Father’s nagging about equal time to stop.
Nature of relationship of with each of the child’s parents and other persons
The child has a close and appropriate relationship with both parents. Her relationship is such that she needs regular time and connection with both parents. Her relationship with Ms G is not as close or important as her relationship with her parents but is an important relationship.
Extent each parent has taken or failed to take the opportunity to participate in decisions or spend time with the child.
The child is dear and precious to both parents. Not only have they taken every opportunity to participate in decisions or spend time with the child they have spent a fortune in legal fees and endured the stress and grief of protracted litigation to maximise each and every opportunity to do so. Their collective determination to do so has contributed to the conflict between them and to the child being exposed to that conflict. Both parents will continue to take every opportunity to participate in decisions or spend time with the child whether the child lives in New Zealand or Australia as in possible in those circumstances.
Extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The Mother has fulfilled her obligations and wanted to do so to an even greater degree by paying private school fees in Australia or New Zealand. The child has not wanted for any material things in either household. She has not had the benefit of peace and co-operation between her parents but she has not lacked material support. Both households are committed providing education and to supporting the child’s expensive interest in horses and have done so in the past and the Mother more than the Father. The Father has demonstrated a greater ability to involve the child in team and group activities that are part of these parents’ obligations to maintain this child.
The likely effect of any changes in the child circumstances the practical difficulty and expense of children spending time in communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The effect of the Mother’s proposal is that the child’s relationship and time with her Father will be significantly diminished. On the Father’s alternative proposal or the Mother’s proposal there will be trouble and expense as the parties negotiate arrangements and travel over the Tasman Sea for school holiday time with the other parent. The effect of the Father’s alternative proposal, that the child live with him while the Mother lives in New Zealand means that the child’s relationship and time with her Mother will be significantly diminished.
The Mother’s case is that the situation for the child of a continuation of the status quo of both parents living relatively nearby in Australia is so bad for her that the change of the child living with her in New Zealand is a much better outcome. I am unable to find that is so.
The move to New Zealand will not of itself improve either parent’s attitude to the other parent and may not reduce conflict between the parents notwithstanding that the parents were, eventually or the first day of trial, able to agree on the school if the child remains in Australia with her father. The same applies for the child if she remains in Australia. At the heart of the conflict is the parents love and devotion to the child, their personalities and attitude to the other as a parent and lack of insight into their own role in the conflict. These problems will not improve because the Tasman Sea will now be between the parents although the opportunities for conflict and disagreement are likely to occur less often.
Living in Australia without her Mother will be difficult for her. Living in New Zealand without her father, existing friends, face to face contact with her counsellor and having to make all of the adjustments of a new school in a new country will be more difficult for her.
The capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
Both parents ability to provide for the emotional and intellectual needs of the child are limited by their competitive parental relationship and lack of insight into their own contribution to the parental conflict and the emotional consequences for the child in being exposed to each parent’s view of the other and being placed into a conflict of loyalty situation. The Mother has an overwhelming confidence in the correctness of her views. The Father is simply stubborn in pursuing his views in conflict with the Mother. These characteristics of the parents impact of their capacity to provide for the emotional and intellectual needs of the child.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and up either of the child’s parents…
The child is mature for her age. Conflict of loyalty situations will be increasingly difficult for her. She loves horses and social interaction with peers. She sees herself as belonging to the place where she has lived between parents.
Whether it would be preferable to make the order that would be least likely to lead to the institution a further proceedings.
All parties seek final orders and it is in the child’s best interests that I make final orders. The emotional energy needs for continued litigation means that each is less able to consider and provide the emotional stability the child needs.
Any other fact or circumstance that the court thinks relevant
The evidence of the family consultant, particularly in her second cross examination, demonstrates that this child, at this time of her life needs stability in as many aspects of her life as possible. Moving to New Zealand with her Mother will not best promote stability for her. She will miss her father’s household and friendship group. Living in Australia with the Father while her Mother moves to New Zealand will cause some instability for her. It is important that she continues to get support from her counsellor Ms F. Video or electronic counselling is possible and would be supportive but not as supportive as face to face counselling. The child’s emotional state is fragile at this time and the greater support of face to face counselling is important. The child could keep in touch with her existing friendship group by video or electronic means. But in person experiences would not be able to be shared to the same degree. In the circumstances of the child’s current emotional fragility the support she seeks and gets from that friendship group is very important to her.
It is common ground that the Father supports the child’s connections with her friends. The Mother has emotionally supported those connections but the Father has, to a greater degree than the Mother, made sure the child actually spends time with her friends, and during what would otherwise be time with him.
The lifestyle of the Mother on the farm, surrounded by the animals and pets she loves, supported by her Mother has provided a wonderful childhood for the child. The Father has demonstrated a commitment to the child being involved in team sport and activities that involve peers, netball and gymnastics. The day to day life of the child with the Mother placed more emphasis on activity at home with her mother. The day to day life of the child with the Father placed more emphasis on activity with friends and peers. At this stage of the child’s life those friendship and peer activities are increasingly important. The Father has more insight into this aspect of the child’s life than the Mother.
The Mother will move to New Zealand, which in the age of ubiquitous air travel is a nearby country. It has different but similar cultural values, education and legal systems. The family law courts and law of Australia and New Zealand in relation to children’s welfare have similar values and a reciprocity of recognition of child related court orders. This is an important matter I take into account.
There is no onus on the Mother to justify her intention to move. However one of the consequences of her moving with the child would be a drastic reduction in the time with her other parent and her friends. The Mother wishes, or feels compelled, to move knowing of this effect. The Father would not contemplate moving with the child to a place where her time and relationship with her mother and friends would be drastically reduced. This is one of the matters that demonstrate that the Father places greater importance on the child’s relationship with the Mother than she places on the child’s relationship with him. In the circumstance of her parents soon living in different countries and the difficulties for her that will likely have, including just missing the other parent, a more positive attitude, or at least a less negative one, to the other parent and that parent’s household will be important for this child.
At this difficult point in the child’s life her emotional stability is best advanced by living with her Father.
SECTION 61DA: PARENTAL RESPONSIBILITY
The presumption that there should be equal shared parental responsibility for long term issues is rebutted by the difficulty the parents have in consulting and coming to joint decisions and by the fact that the parties agree that the parent who lives in the country where the child is living should have sole parental responsibility but subject to an obligation to consult the other parent before making any such decision. It is in the child’s best interest that the Father have sole parental responsibility subject to the obligation to consult the Mother. The effect is that he merely has the deciding vote after consultation if the parents can’t agree.
Hence I do not need to consider section 65DAA, equal time or substantial and significant time, and such concepts are not practical when the parties will live in different countries.
CONCLUSION
Balancing the parties competing proposals I determined that the Father’s and the ICL’s proposal is in the child’s best interests. I am grateful for the assistance of counsel, the parties’ solicitors and the care and diligence of the ICL.
I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 25 October 2021
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