FALLERT & FALLERT
[2019] FCCA 3535
•9 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FALLERT & FALLERT | [2019] FCCA 3535 |
| Catchwords: FAMILY LAW – Parenting – how much time two children aged 13 and 11 should spend with their father – relocation application – whether the mother ought to be permitted to move the children’s residence from the Eastern suburbs of Melbourne to Town G. |
| Legislation: Family Law Act 1975 (Cth), ss.60B,60CA, 60CC, 64B, 65DAA |
| Cases cited: Cowley v Mendoza [2010] FamCA 597 |
| Applicant: | MR FALLERT |
| Respondent: | MS FALLERT |
| File Number: | DGC 2145 of 2016 |
| Judgment of: | Judge Small |
| Hearing date: | 30 January 2019 |
| Date of Last Submission: | 31 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Villella |
| Solicitors for the Applicant: | Perry Weston |
| Counsel for the Respondent: | Ms O’Connell |
| Solicitors for the Respondent: | Fiona R McGregor |
ORDERS
All previous parenting orders in relation to the children X born … 2005 and Y born … 2008 (“the children”) are hereby discharged.
The parents shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The mother is hereby restrained by injunction from relocating the children’s place of residence outside the Melbourne Metropolitan Area.
The children shall spend time and communicate with the father:
(a)During school terms:
(i)on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, or the commencement of school on Tuesday if the Monday is a public holiday, save that if the mother relocates the children more than one-and-a-half hour’s travel time from the father’s residence, time shall conclude at 7:00 p.m. on Sunday, or 7:00p.m. on Monday if the Monday is a public holiday;
(ii)on each Wednesday, from the conclusion of school to 7:00p.m.;
(b)for half of all school term holidays by agreement between the parties and failing agreement from the conclusion of school on the last day of term to 7:00 p.m. on the second Saturday in even-numbered years, and from 7:00 p.m. on the second Saturday to the commencement of school in the next school term in odd-numbered years;
(c)for half of the long summer holidays each year by agreement and failing agreement for the first half in even-numbered years and the second half in odd-numbered years, and for the purpose of this order the long summer holidays shall be deemed to commence at 12:00 noon on the first Saturday and to conclude at 12:00 noon on the last Sunday;
(d)from 6:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in even-numbered years, and from 11:00 a.m. on Christmas Day to 6:00 p.m. on Boxing Day in odd-numbered years;
(e)from 6:00 p.m. on the day before Good Friday to 6:00 p.m. on Easter Saturday in even-numbered years, and from 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in odd-numbered years;
(f)for the children’s birthdays:
(i)when the birthday falls on a school day, from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the day before the birthday in even-numbered years, and from the conclusion of school to 7:00 p.m. on the birthday in odd-numbered years;
(ii)when the birthday falls on a non-school day, from 10:00 a.m. to 2:00 p.m. in even-numbered years, and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
(g)from 6:00 p.m. on the evening before Father’s Day to 6:00 p.m. on Father’s Day each year;
(h)from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the father’s birthday each year;
(i)at other times by agreement between the parties in writing.
The children’s time with the father shall suspend if necessary on the following occasions:
(a)for the children’s birthdays:
(i)when the birthday falls on a school day, from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the day before the birthday in odd-numbered years, and from the conclusion of school to 7:00 p.m. on the birthday in even-numbered years;
(ii)when the birthday falls on a non-school day, from 10:00 a.m. to 2:00 p.m. in odd-numbered years, and from 2:00 p.m. to 6:00 p.m. in even-numbered years;
(b)from 6:00 p.m. on the evening before Mother’s Day to 6:00 p.m. on Mother’s Day each year;
(c)from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the mother’s birthday each year;
(d)at other times by agreement between the parties in writing.
The time the children spend with the father pursuant to paragraph 5(a) hereof shall suspend during all school holidays and shall resume after the holidays as if the holidays had not intervened.
When the children’s time with the father is expressed to commence or conclude at the conclusion or commencement of the children’s school day, then changeover shall take place at the children’s school, and at all other times changeover shall take place at the McDonald’s restaurant closest to the midpoint between the parties’ residences, or at such other venue as the parties might agree in writing.
Save in the event of an emergency, the parents shall communicate about the children’s care and welfare using a parenting application such as “2houses” or “Our Family Wizard”, and each shall bear his or her own cost of the use of such applications.
The mother shall ensure that the child’s school makes available to the father, at the father’s expense if any, all school reports, photographs, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by either of the children, and the parents, and their partners if any, shall all be at liberty to attend parent-teacher interviews, at different times should they so choose, and at all sporting or cultural events usually attended by parents.
The parties shall each inform the other of any serious illness or injury suffered by the children or either of them which requires hospitalisation or specialist treatment while they are in their respective care, and they shall authorise any treating medical or allied practitioners who are treating the child or children to speak to the other parent about the children’s treatment.
The parties and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, criticising, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the children or either of them and from permitting any other person to do so;
(b)discussing these proceedings with or in the presence or hearing of the children or either of them (save to explain any changes in their living circumstances to them) and from permitting any other person to do so; and
(c)allowing the children or either of them to access, read, or have read to them, any portion of the Court’s Reasons for Judgment in this matter.
IT IS NOTED that publication of this judgment under the pseudonym Fallert & Fallert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 2145 of 2016
| MR FALLERT |
Applicant
And
| MS FALLERT |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between Mr Fallert (“Mr Fallert” or “the father”) and Ms Fallert (“Ms Fallert” or “the mother”).
There are two children of the marriage, namely X born … 2005 (“X”) and Y born … 2008 (“Y”) (collectively known as “the children”).
The children live with the mother and currently spend time and communicate with the father alternative weekends from the conclusion of school on Friday until 5:00pm on Sunday, on alternate Wednesday evenings, during school holidays and on special occasions.
The father seeks orders that the parties share equal parental responsibility for the children, that the children live with their mother, and spend time with him on each alternate weekend from the conclusion of school Friday until the commencement of school Monday, each Wednesday from the conclusion of school until the commencement of school Thursday, for half of each school holidays, and on special occasions. The father opposes the mother’s application to relocate to Town G with the children.
The mother seeks orders that she be permitted to relocate with the children to Town G. She also seeks orders for the parties to have equal shared parental responsibility for the children, the children to live with her, the children to spend time with and communicate with the father on each alternate weekend from 5:00pm Friday until 5:00pm on Sunday, for half of each school holidays, and on special occasions.
The issues to be decided in this case, as set out in the parties’ “Agreed List of Issues in Dispute” document provided to the court on 29 January 2019 pursuant to Trial Directions issued on 18 October 2017, are:
1.Whether it is in the best interests of the children to relocate to Town G as proposed by the mother.
2.In the event that an order is made permitting mother to relocate the children’s place of residence to Town G, what orders ought to be made for the father to spend time and communicate with the children.
3.In the event that the court determines that it is not in the best children’s best interest to relocate to Town G and finds that the children should remain in Melbourne, what orders should be made for the children’s contact and communication with the father.
However, while the court understands that the major issue in the minds of the parents, and perhaps their legal advisers, is whether the mother ought to be permitted to relocate the children’s place of residence to Town G, the placing of the mother’s proposal to relocate the children at the top of the “Agreed List of Issues in Dispute” does not reflect the law as set out in the Family Law Act 1975 (Cth) (“the Act”).
While there is much talk about “relocation cases” in the family law arena, it is well settled law in Australia that cases involving applications to relocate a child’s place of residence are not to be decided on any different principles than any other parenting case. In particular, it is not the case that the question of relocation is to be decided before any other parenting orders can be made.
In Taylor v Barker [2007] FamCA 1246, Bryant CJ and Finn J at [53] said:
[W]hen dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238 ; (2002) FLC 93–112 and Bolitho & Cohen (2005) FLC 93-224).
In Cowley v Mendoza [2010] FamCA 597, Murphy J stated at paragraph [30]:
A "”relocation case" is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case.
Referring to relocation cases, Kent J stated in Heath & Hemming (No.2) [2011] FamCA 749 at paragraph [101]:
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases"” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests" considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interest” may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's “best interest” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
In other words, such cases are to be treated as parenting cases which have a relocation component to them, and I have approached my deliberations about this matter on that basis.
As the Court sees the issues in this matter, they can be set out as follows:
A.Given the parents’ agreement that the parties should equally share parental responsibility for the children, and that the children should live with their mother, how much time, and in what arrangement of time, should the children spend with their father?
B.In light of the answer to Issue A, is it in the children’s best interests for the mother to move their place of residence to Town G?
Background
Mr Fallert was born on … 1974 and is currently 45 years of age. He runs his own business, A Pty Ltd, where he is a health care worker. He is in good health.
Mr Fallert lives in Suburb H with his partner Ms B (“Ms B”). Ms B works as a health care worker at Mr Fallert’s business. She has an adult son, Mr K, who is 20 years of age and who lives independently.
Ms Fallert was born on … 1978 and is currently 41 years of age. She has qualifications in health care. She also has administrative skills from working in an office environment and has obtained skills in small business. At the time of trial she was working as a seasonal casual during the time the children are with the father. She is in good health.
Ms Fallert has not re-partnered. She and the children are currently living in Suburb C with her parents.
The parties commenced their relationship in 2001. They were married on … 2003. They separated in October 2015 but then lived separately under the same roof between about December 2015 and May 2016. A Divorce Order was made on 22 February 2017. X and Y are the only children of the marriage.
The children have always lived in the primary care of the mother. They currently spend time and communicate with the father from the conclusion of school on Friday until the commencement of school on Monday during school terms, during school holidays and on special occasions.
The Final Hearing of this matter commenced on 30 January 2019 and ran for two days. The mother and father were each represented by counsel.
Witnesses at trial were the parties and Ms D, the family consultant who prepared two Family Reports for the Court (“Ms D”).
Following the conclusion of evidence and submissions on 31 January 2019, I reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: Given the parents’ agreement that the parties should equally share parental responsibility for the children, and that the children should live with their mother, how much time, and in what arrangement of time, should the children spend with their father?
An order providing for a child to spend time with a parent is a parenting order[1].
[1] See s.64B(1)(a) and s.64B(2)(b)
The law in relation to parenting orders is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
S. 60B sets out the objects and principles of Part VII and I set them out here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that in contemplating making any parenting orders the Court must take the best interests of the child or children as its “paramount consideration”.
Section 60CC then sets out 16 separate factors which the court must consider when it is making orders that are in a child’s best interests.
The first two considerations are called “primary considerations” and are found in s.60CC (2) which reads:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(2A) states that in applying those primary considerations the court must give greater weight to the need to protect a child than to the benefit to the child of having a meaningful relationship with both parents.
That is, while I must make orders which allow for meaningful relationships between the children and both their parents to flourish, my main concern must be to ensure that they are protected from any harm caused by being exposed to any conflict in their parents’ relationship.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
Clearly the children have a meaningful relationship with their mother in the terms set out by Brown J. She has been their primary carer for their whole lives.
The meaningfulness of the children’s relationship with their father has been somewhat less straightforward.
There have been significant periods of time when the children have spent no time with their father since the parties separated, and their relationship with him has been somewhat chequered.
However, the evidence before the court concerning the children’s relationship with their father since interim orders were made on 18 October 2017, indicates that their relationship with him has consolidated and indeed improved over time when they have consistently been spending regular and frequent periods of time with him.
That evidence is found in the family reports of Ms D, where Ms D noticed a sharp contrast between the children’s attitude to and behaviour in the presence of their father between her first report dated 16 October 2017 (“the first Family Report”), and her second report dated 28 November 2018 (“the second Family Report”).
During assessment interviews for the first Family Report, the children were described as “intelligent, assertive but emotionally hindered children” who “believed they had emotional permission from their mother denigrate their father (sic), his decisions and aspects of his personality without experiencing guilt, remorse, or grief regarding the emotional impact this may have upon him.”
Their attitude and behaviour towards their father is described as “socially inappropriate”, and it was clear that they were extremely critical of their father and had aligned themselves with their mother.
At that time, they had been spending alternate Saturdays and Sundays with him during the day only, pursuant to orders made by consent between the parties on 22 August 2017.
It was Ms D’s view at that time that the children were not yet ready to spend overnight time with their father, and that any attempt to force them to do so might damage their relationship with him.
I note that at until the orders of 22 August 2017 were made, the children had been spending no time with their father for several months.
However, at the time of the assessment interviews for the second Family Report, the children had been spending alternate weekends with Mr Fallert from Friday to Sunday, and Wednesday evenings for about a year, as well some school holiday time. In addition, both parents had taken the opportunity to obtain counselling in relation to their own issues around their separation and subsequent events, and the children’s relationship with their father had improved to the point where Y was asking for more time with him, while X told Ms D that she was “90%” happy with the current arrangements.
Clearly, the meaningfulness of the children’s relationship with their father had improved greatly between the inception of these proceedings and the time of trial.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no suggestion that X and Y have ever been physically abused by either party, and the Department of Health and Human Services (Child Protection) has never been formally involved with this family, having closed their file at the intake stage when a single notification was made to them in mid-2017.
The mother makes allegations of family violence against the father in the form of coercive and controlling behaviour and verbal abuse to which the children were exposed during the marriage and after separation. I will to return to the issue of family violence later in these reasons.
There is certainly a need to protect these children from the animus which exists between their parents, exposure to which is almost certain to lead to harm to their emotional and psychological development.
Section 60CC(3) contains a further 14 factors or considerations which the court must bear in mind when deciding what orders to make in the best interests of children. They are:
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children’s views at the time of trial are described in the second Family Report and in the oral evidence of Ms D.
X is described thus in the second Family Report, at which time she was aged 13 years:
53. X presented as an outgoing and assertive girl during her interview. As an extrovert, she tended to provide long-winded stories, primarily about aspects of her time with her father which she did not like or expressing demeaning attributes of both her father and Ms B.
X described “a number of both positive and negative experiences in relation to her father”, and Ms D’s opinion was that “overall, X provided a balanced view of the current parenting arrangements and indicated that she did not wish to change these despite the difficulties she experienced with her father at times”.
Y, aged almost 11 at the time of the interviews for the second Family Report, is described as “open and talkative during his interview and rarely required any prompts to engage him”.
He complained about being sent to his room if he misbehaves at his father’s home, but then, when asked whether there was anything about his parenting arrangements that he would like to change, he said that he would “like a little bit more time with Dad”, although Ms D then reports that “when this was explored further Y did not seek additional overnight time with his father but sought to extend his Wednesday evening time with his father”.
At trial, Ms D’s evidence was that some of the complaints the children made about their father were “trivial”, but that others were based on their lived experience and were legitimate.
In general, it was Ms D’s view that the arrangements were working well, and that there was no cogent reason for changing them.
I note that the children’s views had changed quite dramatically in the year between the first and second Family Reports, and that it was in that year that they had been spending regular overnight time with their father, and that both parents had sought counselling help.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
X and Y’s relationship with their mother is warm and nurturing. They have lived with her for their whole lives and their relationship with her is understandably very close.
There was some concern during the interviews for the first Family Report that the children had become rather unhealthily aligned with their mother and against their father, but as a result of the mother consciously allowing the children and the father to work out their own relationship, it would appear that they have been able to appropriately detach from her feelings and concerns about their father, which appears to have taken some pressure off the children and allowed their relationship with both parents to develop and grow more appropriately.
That is not to say that their relationship with their mother is free from any concern, but that it is a solid, close and generally positive one.
The children’s relationship with their father, as already discussed, has been somewhat of a rollercoaster ride, particularly in the period between the parties’ initial separation in October 2015 and the time of the interviews for the first Family Report in October 2017.
Initially, the children were very much aligned with their mother in being confused, angry with and antagonistic towards their father, and it is only since they have been spending consistent and regular time with him that those relationships have been allowed to flourish.
The children are reported to enjoy the time with their father, despite Ms D agreeing with counsel at trial that Mr Fallert’s relationship with X is “far from perfect” and still needs some work, and that Y still has some disagreements with him over various issues, and in particular over being sent to his room when he misbehaves.
What is very clear is that the children’s could not relationships with their father have improved dramatically since the commencement of these proceedings, which coincides with them beginning to spend regular and consistent time with him.
Indeed, it was Ms D’s evidence at trial that, “according to Mum, this is the best relationship the kids have ever had with Dad”.
It would also appear, from the Affidavit evidence of Ms B herself, from the evidence of the father, and from the evidence of Ms D, that the children’s relationship with their stepmother has also improved over time and their relationships with their maternal grandparents with whom they have lived since May 2016, are close and loving.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(ii) to communicate with the child
Both parents have taken every opportunity to participate in making decisions about major long term issues affecting the children despite their many differences, and they were able to agree on the schools the children attend.
Both have taken every opportunity to spend time with the children, although Mr Fallert has been unable to do that for various periods of time since separation, as Ms Fallert has suspended his time on more than one occasion and for several months.
Ms Fallert complains that Mr Fallert was not a particularly involved father during the marriage because of his work commitments, and that he left home early in the morning and often did not return until the children were in bed.
Mr Fallert acknowledges that Ms Fallert has been the primary carer of the children since their birth, and that there were times during the marriage when his necessary work commitments meant that he was unable to spend as much time with the children as he would have liked. However, it was his evidence that he spent time with them on the weekends, and that he was involved in their daily care whenever possible.
Since interim orders were made by consent on 18 August 2017, both parents have spent regular and frequent time with the children.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
During the marriage both parties maintained the children, the father by working and earning money, and the mother either by working or by looking after the children and the family home.
From the date of separation in October 2015 to the sale of the family home in August 2016, the father continued to pay the mortgage and all outgoings of the property including utilities, rates, insurance and other costs.
When the mother left the family home in May 2016 she sought a waiver of her obligation to seek child support from the father on the grounds of family violence, and on the information she provided to Centrelink, that waiver was granted.
However, the mother later made an application to the Department of Human Services (Child Support) for a Child Support Assessment, and since that time the father has paid child support pursuant to that assessment.
It is the mother’s evidence, in her Affidavit sworn and filed 7 November 2018 (“her second Affidavit”) that while she has sent out “hundreds of resumes because I am a hard and willing worker”, she has been unable to find work and that she was dependent on Centrelink and the father’s child support to support the children. I note in that regard that by the time of trial, some two months after she had sworn her second Affidavit, Ms Fallert had found casual part-time work as a labourer.
Both parties support the children when they are in their care in terms of providing shelter, food, clothes and other necessities.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The children currently live with their mother and their maternal grandparents in their maternal grandparents’ home. They spend frequent and regular time with their father.
There is no suggestion that they are to be separated from their mother, but it was Ms D’s evidence at trial that it would be detrimental for the children to be separated from their father, and indeed from their maternal grandparents with whom they are said to have close and loving relationships. I will discuss this issue further when I address Issue B.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Currently there is no practical difficulty or untoward expense in the children spending time and communicating with the father, as the parties live relatively close to one another.
In those circumstances there is no current difficulty in the children maintaining their relationships with both parents on a regular basis.
I will discuss this issue further when considering whether it is in the children’s best interests to relocate their residence to Town G.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
There is no evidence to suggest that either parent is incapable of taking care of the children’s material needs - they are both sheltered, clothed, fed and educated appropriately.
It is in the area of the children’s emotional needs that the Court has some concerns.
Until the release of the first Family Report in late 2017, the mother appeared incapable of promoting or fostering a relationship between the children and their father.
She was, and remains, angry and bitter about the breakdown in the parties’ marriage, and until the release of the first Family Report, Ms Fallert did not appear to be able to put the children’s need for a relationship with their father ahead of her own feelings.
During the time that the parties were separated while still living in the family home between October 2015 and May 2016, it was the father’s evidence that the children, then ten and seven years old, and the mother behaved very badly towards him, with the children telling him that the house was “Mummy’s house, not yours”, that he should “get out of the house. It is not your house. Get into your cave”, and generally either being rude to or ignoring him. Signs stating the words “not for Daddy” were placed on various foods in the refrigerator, and Mr Fallert was informed that he was not allowed to use the new washing machine because it had been purchased by Ms Fallert’s parents.
When questioned about this evidence at trial, the mother agreed that the children had said such things to their father, but denied that she had told them to say those things or that she had ever said those things, although she conceded that she knew that the signs on the food “would cause issues”.
When questioned further, she was forced to concede that the children were very well aware of how she felt about Mr Fallert at the time, and that they might have said those things to their father in order to please her.
Her evidence that she had “never said” the particular words she conceded the children had said, gave the impression that she was nit-picking, and that she well understood that she had imparted to the children the view that their father was no longer welcome in the family home.
At trial the husband described the period when the parties were living separated under the same roof as “horrible” and “toxic”. He took some responsibility for that state of affairs in saying, “I think we both created a toxic environment for the children in that situation and it wasn’t healthy from them (sic in transcript)”.
At trial under cross-examination, Ms Fallert agreed that her behaviour at the time had not been particularly mature, but otherwise appeared unwilling to take responsibility for her part in creating and maintaining that environment.
Between the time when the mother and children left the family home and moved in with the maternal grandparents in May 2016, and the matter first came to court in August 2017, the children spent very limited time with their father.
The mother said at trial that she had wanted to facilitate the children’s relationship with their father but that she “just didn’t know how to go about it”. It was her evidence that she took significant steps to foster the relationship, but when that evidence was probed further she was forced to concede that in fact she had done very little, if anything, to persuade the children spend time with their father during that period.
She was critical of the father’s care of the children when they did spend time with him, for instance when he called her on the children’s first night away from their mother overnight to seek her assistance in settling them, and denied that she had told the children that they did not have to stay with their father and that he would have to bring them home.
During cross-examination about the father’s time with the children during this period, the mother conceded that the children had not spent time with their father between Father’s Day and Christmas Eve in 2016 and the following exchange took place:
Counsel for the father: So there was lots of correspondence going back and forth between your lawyer and Mr Fallert’s lawyer to make some arrangements, but you refused everything, correct?
Ms Fallert: I don’t think I refused everything.
Counsel for the father: You must have, because, between September – Father’s Day, September, until Christmas Eve there was – the father hadn’t seen the children; didn’t see the children.
Ms Fallert: Okay.
Counsel for the father: And he was more than willing and able to spend time with the children?
Ms Fallert: Yes.
[…]
Counsel for the father: So you had the advice and you had the guidance from the experts, but you still refuse to accept the father having a relationship with the children, correct?
Ms Fallert: Correct.
Counsel for the father: Okay. Because you didn’t want them to have a relationship with the father; is that correct?
Ms Fallert: No.
Counsel for the father: Well, if you did want a relationship with – for them to have a relationship, why did you not facilitate time?
Ms Fallert: I’m not sure.
Counsel for the father: Well, the only logical answer is because you didn’t want to happen, because if you wanted it to happen, it would have been rather straightforward, because there was – there were lawyers acting for both parties and it would have been a rather straightforward exercise; you will agree with that proposition?
Ms Fallert: Yes, I agree.
Counsel for the father: Okay. So the only logical explanation as to why the father was not spending time with the children is because you refused it; correct?
Ms Fallert: Correct.
Counsel for the father: Okay. Because you don’t want them to have a relationship with the father?
Ms Fallert: No, I would like them to have a relationship with him.
Counsel for the father: Well, then, you didn’t want them to have a relationship?
Ms Fallert: Perhaps not then.
Ms Fallert agreed with Counsel that during that period, her attitude to her proposals for time between the father and the children were put to him on an “either take it or leave it” basis.
Overall, her evidence about that period was that she had done little or nothing to promote the children’s relationship with their father, and that she had been quite obstructive when he had made proposals to spend time with them.
Some of the things the children were reported to have said to the father during that period are:
· that he was controlling and violent
· that he had engaged in family violence against their mother
· that in not allowing their mother to move to Town G he was punishing them
· that the police had had no choice but to give their mother an Intervention Order
· that a judge had told their mother’s lawyer that they were not allowed to speak to Ms B
· that their mother was not lying, and
· that he (the father) was not “the victim”, and that their mother was the victim of family violence because the father was violent.
Nevertheless, Ms Fallert, who vehemently denied that she had told the children any of the above things save that she had told them that there was an Intervention Order against Mr Fallert, was forced to concede that when the children did spend time with their father, despite being rude to him and behaving very badly, they enjoyed themselves while engaging in activities in his care.
Under further cross-examination, Ms Fallert conceded that she might well have spoken about the father in a critical way in the children’s presence, “by accident,” she said. “But I didn’t sit them down and tell them”.
In early 2017, family relationships were at such a low ebb that Mr Fallert engaged Ms E, a clinical psychologist and family therapist, to assist the family with family therapy sessions, although the parties only attended a few times.
Between April and June 2017 the parties appear to have been negotiating through their lawyers some parenting orders that might have allowed Ms Fallert and the children to move to Town G.
However, no consent orders were ever signed. Each party blames the other for that situation.
On 7 June 2017 the mother sought to vary and extend the Intervention Order she had obtained in mid-2016 for a further 12 months, and suspended all time between the father and the children. The application to vary the Order involved, among other things, including the children’s school as a place that the father was prohibited from attending.
The outcome of that application was that on 28 August 2017, the father consented without admissions to a further 12 month Order naming the mother as a protected person, but not the children, and the school condition was not enforced. That Intervention Order expired on 28 August 2018.
At trial, Ms Fallert was forced to concede that there was nothing Mr Fallert had done that warranted a variation in the Intervention Order to prevent him from attending at the children’s school, as he had simply made an appointment with Y’s teacher to discuss Y’s progress, and had unexpectedly met Ms Fallert when he attended for that purpose. She conceded that he had not approached her or abused her in any way on that day, although when pressed she said that he had “walked really close behind me”.
She denied, under cross-examination, that the timing of that application, and the suspension of contact between the father and the children, had anything to do with the breakdown of negotiations in relation to proposed orders. She insisted that it was “a coincidence”, although she said she did understand how her motivation in applying for the extension of the Intervention Order at that time might be seen as questionable.
In any event, and as a result of the suspension of time, the children did not see their father between June and August 2017, when the matter first came before this court and interim orders were made by consent for the children to spend day time only with him.
Even after the children had been spending overnight time with the father for a full year, and their relationship with him had clearly improved, on 3 January 2019, only weeks before trial, Ms Fallert had not been able to control herself at changeover to the extent that, when Mr Fallert approached her car to pick up X’s luggage, she said, “Could you come any closer?” in what he says was an aggressive tone of voice, and then, when he responded that he was merely assisting X with her luggage, Ms Fallert said, “We don’t want you near us”. X and Y were both present at the time.
Evidence about the above incidents, events and situations (and indeed many others not mentioned here), give the Court cause for some concern about the mother’s capacity to care for and meet the children’s emotional needs, as she appears to have been perfectly content for her animus towards Mr Fallert to detrimentally affect her children’s relationship with their father.
While her insight about her previous behaviour appeared to have deepened between her first and second interviews with Ms D, her evidence and demeanour at court displayed little of that improvement.
Giving oral evidence at trial, Mr Fallert conceded that he spoke loudly, and that he understood that others might see his loud speech as intimidating, although he denied yelling at the children all the time, or that it was his behaviour towards the mother that had caused the children to be reluctant to spend time with him after separation.
He did appear to take responsibility for his part in the atmosphere and environment in the family home after the parties separated, but he specifically denied calling the children’s mother vulgar names or telling her in the presence of the children that she was “a freeloader living rent-free in the home”.
He further conceded that he was partly responsible for any conflict that had occurred between the parties during changeovers, and his insight into the effect of his behaviour on his children appeared to be genuine.
His frustration and distress at the behaviour of the children post separation and not having been able to spend regular and frequent time with them until August 2017 was clear, although he did not display any inappropriate aggression while giving evidence at trial.
His evidence indicated that he had behaved appropriately on the first night that he had cared for the children overnight, in that he had telephoned their mother and asked for assistance.
There was also evidence that on one occasion, when X had watched a horror movie at a friend’s place and had become afraid and distressed that night while in his care, he had been able to soothe her and take care of her in an appropriate fashion.
The fact that Y told Ms D that he wanted to spend more time with his father speaks volumes about Mr Fallert’s ability to take care of the children’s needs.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The mother’s evidence at trial, wherein on a significant number of occasions she was forced to concede that her affidavit evidence had been either incorrect or greatly exaggerated, gave the Court the impression that she is not a particularly emotionally mature woman.
That may be the result of living with a husband she saw as a controlling and coercive partner, and she did not present as deliberately lying about her evidence. Nevertheless, there were many times during her cross-examination when counsel was able to draw from her concessions that significant parts of her evidence were not as had been presented in her Affidavit material.
In addition, Ms Fallert was questioned about her practice of arriving at the changeover point early, noting that Mr Fallert had also arrived early and was waiting in his car, but keeping the children with her until the official changeover time rather than allowing them to leave with their father a few minutes early. Her answer to that question, that the court ordered changeover time was clear, displayed controlling behaviour and rigid thinking designed not to further the children’s best interests, or their relationship with their father, but to make Mr Fallert feel uncomfortable. She agreed with Counsel for the father that that behaviour was not particularly mature.
X is now a teenager, and I do take into account her needs as an adolescent girl, including the need to have a relationship with both of her parents. Ms D describes her as being forthright in manner, and she appears to have a maturity commensurate with her age and stage of development.
Similarly, Y’s maturity appears to be appropriate for a boy of his age, and I take into account that as he develops into adolescence he is expressing a need to spend more time with his father.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There is no doubt in the Court’s mind that each of these parents loves both children dearly and wants only what is best for them.
However, both can be criticised for the conflict between them which has led to the children being exposed to their parents’ views of each other.
The mother appears to have seen the children, consciously or unconsciously, as allies in her bitterness and anger towards the father in response to the parties’ separation, resulting in the children being caught in the middle of the parents’ emotional responses.
There is some evidence before the Court to show that through the process of counselling, the mother has come to recognise the effect of that behaviour, and has taken steps to allow the children to develop their own relationship with their father, for which she is to be greatly commended.
If what the mother says about the father’s behaviour during the marriage is true, then his recklessness in exposing the children to family violence does not speak well about his attitude to the children or to his responsibilities as a parent.
Other evidence, however, indicates that the father is willing to examine and change his behaviour as well, and I could see nothing in his demeanour at court, or in his oral evidence, which would give me concern about his attitude to the children or to his role as a parent.
I note that in her Affidavit material, Ms Fallert was not prepared to say that the father was a good parent, while Mr Fallert was prepared to give Ms Fallert credit for her care of the children.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The mother’s whole case in these proceedings is built around her allegation that the father has behaved in a coercive and controlling manner throughout the relationship and since separation, resulting in her being afraid of him.
Those allegations, set out in her Affidavit material, include the following:
· that the father spoke to the children about her in disparaging and denigrating terms during the marriage and continues to do so.
· That the father shouted a lot, frightened the children, made threats to them and said “awful things” to them.
· that the father was “angry all of the time and it didn’t matter what I did or said, nothing made him happy. He was highly critical of me and he clearly saw me and the children as burdens to him because he told us so. The children were frequently distressed by the father’s level of aggression and his anger. They complained to me about him always being angry with them and about him yelling at them.”
· that she had been forced to allow the father to return to the family home after he had left in October 2015
· that she never knew how the father would behave and “whether he would be pleasant or whether he would be irritated by something and there would be an angry outburst.”
· that after separation the father had expected her to continue to cook and clean for him and to wash his clothes, while wishing to have complete financial independence from her
· that the father complained that she and the children were “freeloaders” and “how we spent all of his money.”
· that the father withheld from her all the family photos at separation and refused to copy any for her until the first day of hearings in this Court when he agreed to provide them to her
· that he had told her that “I had not put a cent into his marriage and he called me a series of foul names.”
· That on the evening that she left the family home with the children, the husband again abused her during a telephone call complaining that “I was a freeloader and I had made no contribution whatsoever, and he asserted that I had dumped him with everything. He called me a series of vulgar names. He roared obscenities at me into the phone and about how I had ruined him.”
· that when he had left the family home after its sale, “he left me with a number of expenses including the utility bills which he had not paid.”
· that on 23 August 2016, father confronted her at the children’s school when she complained that he had, for the second time, completed the transfer documents for a motor vehicle incorrectly. She says that he “shouted abuse at me and he was disparaging and rude and frightening.” I note that Mr Fallert's Affidavit material about this incident goes into more detail than that of Ms Fallert, and he admits to loudly swearing at her several times in disparaging terms, and to accusing her of deliberately being difficult. It was as a result of this incident that the mother applied for a Family Violence Intervention Order and obtained an Interim Order in the father’s absence.
The mother describes the father’s demeanour as follows in her affidavit sworn on 16 August and filed on 22 August 2017 (“her first Affidavit”):
48. […] Unfortunately, one of the things that the husband does not understand is he has no idea how his level of anger impacts on me. Like a lot of angry people, the husband loses his temper or says what he wants to say and screams abuse and calls me foul names and waves his hands in my face, and becomes red-faced and enraged, and then he recovers reasonably quickly. As far as he is concerned, it is done and dealt with. What he doesn’t understand is that long after he has gone away and moved on and said what he wants to say and all of those sort of things, I am still left upset and frightened by his level of anger and the awful things he has said to me. I have no trust in the husband and no confidence that he wouldn’t just escalate and hurt me, and I sought an intervention order to contain his behaviour against me.
and
93. It is characteristic of the husband that he accepts no responsibility for his own behaviour. […] The husband too has real difficulty accepting that his level of anger has adversely impacted on our family. The husband loses his temper and upsets everyone and causes significant distress, and then because he is over it, he expects everyone else to be over it. He doesn’t understand that not everyone can just move on with the speed at which he does. He doesn’t accept that his level of anger has impacted on all of us.
The mother says that the father’s “anger and aggression and belligerence… pushes me to the point of being physically unwell. It makes me anxious and nervous and stressed.”
Ms Fallert also complains of the father being emotionally abusive to the children. For instance, after the children had spent their first night with their father after they had moved out of the family home in mid-2016, X refused to see her father. Y continued to attend for visits, but the mother says the father had told Y that if he did not go and see him, his father would simply give up on him, and that not seeing the children would make his father “cry and feel sad”.
In addition, she states, in paragraph 83 of her first Affidavit:
I am informed by the children that the husband threw a coffee cup across the room, stormed into the bedroom and lay on the floor kicking, punching and crying, and he called X a “f…ing bitch” and told her that she acted like me. When he returned the children to me, he was angry and aggressive and I saw him point in X’s face and say to her “This has nothing to do with you. Keep out.” He was belligerent and rude to me.
In paragraph 85 and after of the same Affidavit, the mother deposes to the following:
85. […] On 5 May (2017) the husband spent time with the children from the conclusion of school until 5 pm. On that day, the husband verbally attacked me in the presence of the children, telling me that I was responsible for him not seeing his children and that I was poisoning them, and that he had four years of statutory declarations signed by people about me. He was angry and his voice was raised in his face was red. He was waving his arms and I was frightened by him, and the children were frightened too.
86. Then on 6 May the children spent the day with the husband. I understand that they travelled to Town G to look at the school that I had suggested for 2018. The children came back from their father’s quite distressed because they said he had been angry with them and told them the school was shit, and that their mother just needed to sign papers to be prepared by the husband. He also on that occasion told X that he had attempted to kill himself three times. X was quite disturbed by that and that her father had shoved his fingers in her face, showing three fingers forcefully so she would understand.
87. On 7 May the children again had time with their father from 10 am until 4 pm. During that period, the husband was denigrating me to the children. They returned from the visit saying that he had told them that he would ruin me and he was angry and waving his arms around. X was particularly disturbed that her father was punching into his palm as if he were hitting me.
It was as a result of those incidents that Ms Fallert says she approached the police and was advised to seek an extension and variation of her Intervention Order, and to suspend contact between the children and their father.
In addition, it is apparent that the police to whom she reported these incidents made a notification to the Department of Health and Human Services (Child Protection), as they investigated the allegations, but closed their file at the intake stage.
It is the mother’s evidence that it was a social worker at Centrelink who advised her to apply for an exemption from seeking child support on the basis of the father’s aggressive and abusive behaviour, although it is clear that that exemption has now been removed.
At trial, the father was cross-examined about the allegations contained in the mother’s Affidavit material.
When asked about the incident at the children’s school in August 2016, he accepted that he had spoken to the mother much as she alleged, and that the children were almost certainly affected by being exposed to that behaviour.
It was his evidence that that had been the only time he had ever sworn at the mother or spoken to her in a denigrating manner. I am sceptical about that particular piece of evidence.
Mr Fallert was also asked whether he had yelled at the children while they were in his care and he responded that he had, and that he thought that “all parents at stages yell at their children”.
However, he specifically and emphatically denied that he had said to X that she was “just like your fucking mother”, saying he had never spoken to his daughter in that way.
He conceded that he had felt upset and humiliated when he was asked to leave X’s dance performance at the end of 2016 because the dance school staff knew that there was an Intervention Order against him and wrongly assumed it meant he could not be in the same place as X, but he denied that he had created a scene on the night. He agreed that he had rung the dance school in the following week to complain about the staff’s behaviour, and while he denied he had threatened the school, he had told them that they “were opening themselves up to litigation by behaving this way”.
Mr Fallert was asked several questions in relation to his “being pretty much angry all the time” as alleged by the mother, and while he said that he had “yelled at the children in the past when I’ve needed to”, he denied having any “problems with anger”, saying “I’ve never had anger issues.”
He admitted that interactions between him and Ms Fallert had not been “civil” immediately before and after separation, describing the atmosphere in the house as “very cold”, but he denied stomping around, throwing things, shouting or “banging things”, or “creating any violence at all”. He described the environment in the family home at that time as “toxic”.
Mr Fallert specifically denied calling the mother a “freeloader” although he did concede that he might have told her she that she “hadn’t put a cent into the marriage”. He was adamant, however, that he had never said such things in the presence of the children.
He denied that his behaviour was the sole reason for the children being reluctant to spend time with him after they moved out of the family home, saying: “I agree that both of us shaped the circumstances that led to the children not spending time with me.”
It is clear to the Court that Mr Fallert’s behaviour towards his wife and children was less than exemplary during the marriage and in the period shortly after separation. On his own evidence, he was not “civil” in his interactions with the mother and he yelled at the children, and while he does not believe he was violent towards them, the behaviour described by the mother does fall into the category of family violence as set out in s.4AB of the Act.
I am also satisfied that the father’s behaviour had a detrimental effect on both the mother and the children, and that while the mother showed no fear of the father at trial, I accept that she had become wary of his anger, and felt as though she were “walking on eggshells” when he was present.
In addition, and while it does not negate my satisfaction as to those matters, it is also clear that the mother engaged in a form of passive-aggressive behaviour towards the father, by not engaging with him and ignoring his presence in the house for instance, and by refraining from reprimanding the children about the way they treated him. That, too, could be seen as a form of abuse.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iii)any findings made by the court in, or in proceedings for, the order;
(iv)any other relevant matter
The mother obtained an ex parte Interim Intervention Order against the father on 2 September 2016, that Order naming the mother and the children as Affected Family Members.
On 14 October 2016, that Order was made final by consent without admissions and was to last until 13 October 2017.
That is, no findings of fact were made by the Magistrates’ Court in relation to the mother’s initial application.
On 7 June 2017, the mother made an application to extend the final Order by 12 months and to vary its conditions so that the father would not be permitted to come within five metres of her or the children, to contact or communicate with any of the Affected Family Members, to attend any place where the children attend school, and to force him to return the children’s photographs and videos.
An Interim Intervention Order essentially in those terms was made on that same day, again on an ex parte basis, although that Order did permit the father to do anything permitted by a Family Law Act Order.
On 28 August 2017 the father again consented without admissions to the extension of the Order for another twelve months so that it would expire in August 2018, but the children’s names were removed as Affected Family Members, and no orders were made that prevented the father from attending the children’s school.
Again, no findings of fact were made by the Magistrates’ Court in the making of that Order.
As far as the Court is aware, there have been no alleged breaches of that extended final Intervention Order and it expired on 27 August 2018.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This matter has been making its way through the Court since 10 April 2017.
While that may appear to be an intolerable delay in making a final decision, it has allowed the children to experience two regimes of regular and frequent time with their father and, on the evidence of Ms D, that experience has been of great benefit to them.
The children have now been able to spend that regular and frequent time with their father for more than a year, and it is time to make final orders. The children and their mother need to know what their future circumstances will be so that they can plan their lives without the shadow of court proceedings hanging over them.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
This is not a relevant consideration in this matter.
Conclusion: Issue A
On the basis of the above evidence, I find that it is in the children’s best interest to spend substantial and significant time with their father, and I note that s.65DAA(3) of the Act defines “substantial and significant time” as time that includes weekend and holiday time as well as days that do not fall on weekends or during holidays, and that allows the parent to be involved in the child’s daily routine, and in occasions and events that are of particular significant to either or both of the parent and/or the child.
In those circumstances, I will make orders which provide for regular fortnightly weekend and mid-week time, and school holiday time between the father and the children, and orders for time on special occasions each year.
Issue B: In light of the answer to Issue A, is it in the children’s best interests for the mother to move their place of residence outside the Melbourne Metropolitan Area?
The father’s fear, expressed both in his affidavit material and throughout his oral evidence at trial, is that if the children move to Town G, which is an approximate three hour drive from his home, the relationship that he has built with them over the past few years will be diminished and will eventually die.
It was the mother’s evidence that she will ensure that the children spend alternate weekends and half school holidays with their father, and at trial it was her proposal that she would do all the driving. That is, she would drive the children from Town G to Melbourne on alternate Friday afternoons, and would drive them back again on the Sunday evening. She said that she would visit family and friends in Melbourne during the time that the children were spending time with their father.
I note that the mother is not required by law to give cogent reasons for her decision to relocate, but she must prove, on the balance of probabilities, that it is in the children’s best interests to move with her to Town G.
It is appropriate therefore, to set out her reasons, as they certainly contribute to the whole picture of these proceedings.
When she was asked at trial to tell the court why she wanted to move to Town G, Ms Fallert replied as follows:
It feels like home. It has got a great community. I feel I can get work down there. I do have family down there. Each time we have visited the region, the children love it. I guess, they’ve always said to me that they would like to live in the country some time, and I can get affordable housing down there.
When asked further about her employment prospects in the Town G area, Ms Fallert said she believed that she had transferable skills, describing herself as “a Jill of all trades” who could “pick up anything”.
She said she had found “that there’s more jobs in rural areas”. Nevertheless, she was unable to point to any particular employment prospects she might have in the Town G area, save that she believed that her current experience as a labourer might stand her in good stead in finding employment there.
Under further cross-examination, however, she was forced to concede that her belief that there are better employment opportunities for her in the Town G area was mere speculation.
In relation to “having family down there”, it was the mother’s evidence that her sister and her family live at Town F, approximately half an hour’s drive from Town G. She said that her children are close to and get on extremely well with their cousins, who are the same approximate ages, and that she felt that her sister could give her emotional support.
She agreed that her parents and another sibling live in Melbourne and that the children have excellent relationships with them as well, and especially with their grandparents with whom they have been living.
In relation to housing, Ms Fallert had done some research which, she said, indicated that a two bedroomed house in Town G would cost approximately $50-$100 per week less to rent than a similar house in Melbourne.
When it was pointed out to her that the cost of petrol for her to do all the driving so that the children could see their father might offset any costs that she might save in rent, Ms Fallert stated: “but there is a train line that, you know, I could take the children on. It was just an idea. I just thought – yes, maybe”. I got the impression that she had simply invented that suggestion on the spot, as the question of the children travelling between the parents’ homes by train had not been raised before that moment.
When interrogated further about her proposal that she do all the driving, she was forced to concede that she had not thought of that suggestion herself, but was responding to a suggestion Ms D had made in the second Family Report where Ms D raised the issue as a possible means to ensure that the children attended for their time with their father.
It appeared to the Court that Ms Fallert had not fully considered all the ramifications for the children of her desire to move Town G, and that she was prepared to tailor her evidence to support her wish to do so.
Nevertheless, I am satisfied that her desire to move to Town G is genuine and heartfelt.
When Mr Fallert was questioned about his attitude to the children moving to Town G, his answers were far more child focussed than those of the mother.
For instance, he was very concerned that the travel would be onerous for the children and that they would be tired and unsettled when they arrived at his home on each alternate Friday evening. It was also concerned that the only possible high school they would be able to attend in Town G did not have the same educational results as schools in the city.
It was the father’s evidence that he simply did not believe that the mother would ensure that the children travel to Melbourne on each alternate Friday during school terms, and that their involvement in any kind of extracurricular activity, including sporting or theatre events or invitations to social events on the weekends they were to spend with him, would gradually chip away at their ability to maintain their relationship with him.
He strongly believed that if he did not allow the children to attend events in Town G on weekends they were scheduled to be in his care in Melbourne, that they would come to resent spending time with him and would find reasons not to do so until they spent no time with him at all.
It is not difficult to imagine a scenario where those fears might be realised.
In deciding whether it would be in the children’s best interests to move to Town G, it would have been useful to have known what the children’s views of such a move were. However, despite the fact that they knew that their mother wish to relocate them, despite the family report describing both children as being well able and willing to express their opinions, and despite them having two opportunities, a year apart, to provide Ms D with their views on the subject, neither of the children mentioned that issue at all in either of their assessment interviews with her.
Given that they were very forthright in their views about their father, I place some weight on the children’s failure to even mention their mother’s proposal to uproot them from their home with their grandparents in Melbourne and move them to Town G. I note, too, that the children both told Ms D in their interviews for the second Family Report, that they were happy with the current arrangements.
The history of this matter, from the time of separation to the time of trial, is that only when court orders have been in place, and the question of her moving to Town G has not been resolved (that is, there has still been the possibility that she would be permitted to relocate the children), has the mother been consistent in providing the children to spend time with their father.
Despite her protestations at trial that the children’s relationship with their father would actually be enhanced if they were to move to Town G, on the whole of the evidence before me in this matter I am not satisfied that it would not be seriously detrimental to that relationship if the children did not live within a reasonable distance of their father.
I acknowledge that the mother has a right to live where she pleases, and indeed, the Court has no power to force the mother to live anywhere.
The court’s concern is the right of the children to have orders made which are in their best interests, and when I balance that right against the right of the mother, I find that the scales weigh in favour of the children.
Conclusion: Issue B
I have found that it is in the children’s best interests in this matter for them to spend substantial and significant time with their father.
That would simply not be practical were they to be relocated to Town G, or indeed any location outside the metropolitan area of Melbourne.
They would be separated from their father so that they would not be able to spend midweek time with him, and their weekend time is likely to be severely curtailed by the distance and expense involved.
They would also be separated from their grandparents and other relatives and friends who live in Melbourne.
When I consider all the matters contained in sections 60CC(2) and (3) of the Act (those considerations being set out in paragraphs 32 to 167 of these Reasons), I find that it is in the children’s best interests for them to remain living within the Melbourne Metropolitan Area, and I note that that possibility was canvassed with both parties at trial.
That will allow the mother to find accommodation and employment on the outskirts of Melbourne should she wish to pursue a lifestyle more akin to that of a country town, while at the same time allowing the children to pursue and develop their relationship with their father.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 9 December 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Standing
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