Ferro and Kopel
[2017] FamCA 223
•13 April 2017
FAMILY COURT OF AUSTRALIA
| FERRO & KOPEL | [2017] FamCA 223 |
| FAMILY LAW – CHILDREN – where wife wishes to relocate to Israel – where previous trial had determined parental responsibility and daily care structure for child – where issue was international relocation – where relationship of father and child was established and although likely to alter, it would not alter to the child’s detriment – relocation allowed – where husband seeks week about parenting after that issue was determined in 2016 and not the subject of appeal – no changed circumstances to justify |
| Family Law Act 1975 (Cth) |
| AMS v AIF [1999] HCA 26; 199 CLR 160 Grella & Jamieson (2017) FamCAFC 21 Rice and Asplund (1979) FLC 90-725 SCVG & KLD (2014) FLC 93-582 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Ferro |
| RESPONDENT: | Ms Kopel |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 6467 | of | 2014 |
| DATE DELIVERED: | 13 April 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 14, 15, 16 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carter |
| SOLICITOR FOR THE APPLICANT: | Waterson Legal |
| COUNSEL FOR THE RESPONDENT: | Dr Ingleby |
| SOLICITOR FOR THE RESPONDENT: | Berger Kordos Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That from 4 pm on 17 April 2017, J (the child) born … 2009 live with the wife and unless otherwise agreed, the husband deliver the child to the wife.
That pursuant to s 65Y(2) of the Family Law Act 1975, the wife has permission to take the child from the Commonwealth of Australia to live in Israel and to otherwise travel with her internationally.
That the husband spend time with the child as follows:
(a)For 8 weeks of the Israeli long summer school holiday period;
(b)For a further period of up to two and a half weeks coinciding with the non-long summer Israeli school holidays, at the husband’s election as to Passover or the Hanukkah holiday period in December;
(c)If he is in Israel and has given the wife 60 days’ notice, for a period of up to 3 weeks (if his trip is for less than 3 weeks);
(d)If he is in Israel and intending to be there for more than 3 weeks, and has given the wife 60 days’ notice, for the first 3 weeks and then alternating weeks thereafter;
(e)If he is in Israel and his trip is for more than 8 weeks and has given the wife 60 days’ notice, for the first 3 weeks and thereafter, 4 nights per fortnight; and
(f)If he is in Israel during Jewish New Year or the child’s birthday, overnight time.
For the purposes of paragraph 3 (a) and (b), the child shall be brought to Australia by the wife (for so long as the child cannot travel alone) and the international travel costs of the child shall be shared equally.
Notwithstanding paragraph 4, the child may travel overseas with the husband in the middle of July 2017 for a period of 4 weeks to coincide with the anticipated birth of her sibling and the husband provide the wife with all of the relevant itinerary details before the travel begins.
That the husband communicate electronically with the child and the wife facilitate such communication every second night (or as requested by the child):
(a)Between 1 pm and 3 pm (Israeli time during school days);
(b)Before 3 pm Israeli time on non-school days; and, regardless of whether or not it is not the second night referred to,
(c)During Jewish New Year, Fathers’ Day, the husband’s birthday and the child’s birthday.
That for the purposes of paragraph 6, the wife is responsible for ensuring that the child has a properly charged mobile telephone with all relevant programs installed upon it such that the communication can include live visual communication.
If the husband is with the child during Jewish New Year, Mothers’ Day, the wife’s birthday or the child’s birthday and the child is in the same country as the wife, then the child spend time with the wife for at least 3 hours.
That the wife provide to the husband copies of all school reports and photographs taken at school.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
That all other applications for parenting orders are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferro & Kopel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6467 of 2014
| Mr Ferro |
Applicant
And
| Ms Kopel |
Respondent
REASONS FOR JUDGMENT
Mr Ferro (“the husband”) and Ms Kopel (“the wife”) both seek court intervention by way of parenting orders relating to their only child J who is seven years of age. The substantive issues are whether the child should live with the wife in Israel or remain in Australia with both parents on some form of shared care arrangement. For the reasons that follow, I find the wife’s proposal will best meet the child’s needs.
Earlier hearing
This hearing is not the first between the parties. In 2016, they litigated over the child, culminating in orders that denied the wife’s request to move to live in Israel but which fixed the sharing of the child as to ten nights per fortnight with the wife and four nights per fortnight with the husband. School holidays were equally divided.
The 2016 orders were published in May but later set aside by the Full Court which remitted the residence matter for rehearing. That remitter initially caused a difficulty about what evidence the parties could use and what findings of the previous trial judge should be adopted. In the end and requiring a ruling, this hearing has been conducted on new affidavit material with parts of the transcript from the last hearing being taken into account. The details of what material has been relied upon is set out in the outlines of case document filed by each party.
The parties
Both the husband and the wife were born in Israel. The husband is aged 48 years and the wife 43. Each conducts a business. They came to Australia as a couple and, apart from holiday trips to Israel, have remained here. It is not disputed that the wife has wanted to return to Israel for some years.
The parties began living together in 1994, married in 2000 and their relationship came to an end in March 2014.
In the proceedings, the husband was the applicant and the wife the respondent. The child’s interests were represented by counsel for an Independent Children’s Lawyer.
Sharing prior to May 2016
Up until May 2016 when the appealed orders were made, the child had lived with the parents in a shared arrangement. Indeed, prior to 2014, there was a significant period of time where the wife was ill with some form of chronic fatigue syndrome which meant that the husband had an even greater caring role of the child than the wife.
In 2016, after a significantly contested trial, the final orders decreed the change to ten nights per fortnight favouring the wife.
The outlines
The husband denied it was “opportunistic” (an argument of the wife) for him to now seek to return to the shared care arrangement that existed prior to 2016 just because the appeal had permitted a retrial. He observed that there had been significant changes since the evidence closed in February 2016 including:
· Significant improvement in the child’s progress;
· The relationship between the child and her parents had been assisted by the involvement of a psychologist (whose evidence is referred to below);
· The paternal grandmother had relocated to Melbourne (but only in February 2017);
· J is to have a sister born in mid-2017 as the husband has entered into a surrogacy arrangement in the United States; and
· The wife had made significant offers of greater time between the husband and the child if she is permitted to move to Israel.
The husband’s outline observed that there was a close and loving relationship between the child and both parents and that it was in her best interests for them both to be significantly involved in her life. It was submitted that if a move was made away from Melbourne, the child would suffer significantly and her capacity to be involved with her father would be dramatically curtailed.
Importantly for the purposes of this hearing, it was the husband’s case that the wife’s proposals will deprive the child of having a meaningful relationship with him. That is explored further below. In addition, it was submitted that such a move would prevent the child from spending substantial and significant time with him as defined by the relevant legislation.
A significant part of the husband’s argument is that whilst it is the wife’s case that she is deeply unhappy here, her unhappiness may be taken into account, but it is not an overriding consideration and must be balanced and weighed against the competing proposals. His case therefore was that the evidence produced by the wife showed no justification for a change of the orders to allow her to take the child to Israel.
The husband submitted there was no clinical evidence of the wife’s assertion about her “depression”. He argued that the progress to which he referred, that the child has made in the last twelve months, will suffer because this will be a further move not only of her residence but also of schools.
For her part, the wife’s outline of case argued that the husband had not appealed against the orders made in 2016 and therefore an application to extend the time beyond what those orders provided, was opportunistic. She argued that shared parenting is contra-indicated in the current relationship and whilst there is a pretence of cooperative conduct by the husband, that is not the reality.
The wife’s case was that there is evidence that her parenting capacity will be impaired if she is not allowed to pursue her “long term wish” to move back to Israel. As the outline observed, it was this desire to return to Israel that ended the marital relationship.
Thus, the wife argued that she was desperately unhappy in Australia, isolated and lonely. Her new partner lives in Israel and she wants to be with him.
On the wife’s evidence and that of her supportive witnesses, I find that despite her outward steely resolve, she is desperate to return to Israel which she considers home. That said, she would not go back to Israel without the child. The reasons below amplify that finding.
Three proposals
The court was invited to consider the parties’ three proposals. They were:
(a)that the wife return to Israel with the child and the husband have time both in Australia and Israel but also electronically;
(b)that if the child stays in Australia, the 2016 orders (that is the 10:4 arrangement) continue; or
(c)that the child stay in Australia and the status quo be changed to a sharing of all holidays but during school term times, the arrangement be on a fortnightly cycle under which the child is shared by the parents on a five day: five day: two day: two day arrangement.
Those are the basic proposals but the finer details need to be considered.
The Israel proposal
It was the wife’s final proposal that she be permitted to take the child on or after 17 April 2017 and that pending that move, the current arrangement continue except that once school ended for Term 1, the child stay with the husband for the entire period until the move is made to Israel.
The proposal went on to say that once in Israel, the child would be brought back to Australia by the wife first, for eight weeks of the Israeli long summer school holiday period (which coincides with the European summer period) to stay with the husband; secondly, for a period to coincide with one of the child’s school term holidays for up to two and a half weeks, at the husband’s election as to the Jewish Passover and the Hanukkah holiday in December.
In respect of those Australian trips, the wife was to be responsible for accompanying the child which would therefore mean two or three trips depending on whether or not, after leaving the child with the husband, she stayed the whole eight weeks or returned to Israel. The child’s costs of travel were to be shared equally.
The wife’s third part of the proposal related to a period of time between the husband and the child in Israel. She proposed that on seven days’ notice, which the husband said should be 60 days, the husband would go to Israel for a period of up to three weeks at any time he chooses but if he was able to stay longer than three weeks then for those first three weeks and thereafter, on an alternating weekly basis. If his trip was for more than eight weeks, then his time would be for a block period of three weeks of that eight week period and thereafter for four nights per fortnight. That trip(s) would obviously be at the husband’s expense.
The husband’s evidentiary response to the proposal for him to go to Israel was that it was impracticable but in final address, his counsel indicated that he would do the best he could to get there. I consider his view about impracticability further but, in my view, it does him no credit.
Another aspect of the wife’s proposal is that there be telephone or other electronic communication between the husband and the child every second night. Specific hours were canvassed so that the communication could be after school times. To give effect to that proposal, the wife proposed an order that she facilitate that contact ensuring that the child had a mobile telephone with all of the relevant programs such as Skype, installed.
Finally, a variety of other orders proposed by the wife contemplated provision of school reports and photographs along with additional time between the husband and the child for special occasions depending upon where he was.
The third proposal [paragraph 18(c) above]
In May 2016, the court made the orders earlier mentioned. It was the wife who appealed. The Full Court determined that only certain orders were to be set aside on the basis that the trial judge misunderstood the wife’s proposal. The husband did not cross-appeal against his allotted time of four nights out of 14 plus holiday time.
Despite what might appear to be an acceptance of the 2016 trial judge’s determination, the husband now seeks an equal shared care arrangement on the structural basis earlier described. That proposal is opposed by both the wife and the Independent Children’s Lawyer.
To see all of this in context, it is important to consider the evidence that was before the trial judge in 2016. Although it was submitted that I should adopt or take into account, the trial judge’s findings, having read the evidence of the family consultant Ms K and psychiatrist Dr B, I do not consider I need to do so. The evidence of both of those witnesses can be seen to stand alone taking into account their respective reports as evidence in chief and the cross-examination of them shown in the transcript which I was asked to read.
Dr B
The evidence of Dr B was also relied upon for the purposes of the current hearing about the psychological health of the wife. I turn to that below.
Dr B prepared a report dated 12 November 2015. He opined that the wife impressed as a person of analytical bent, of reserved, at times steely disposition, whose intellectual curiosity may or may not be matched by the observations of assessing clinicians. He said that it was interesting to note that the division and split perceptions of the alternative propositions of the respective relationships of both parties were reflected in the opinions of the various assessing family report writers whose reports he had read. Most of those reports were not in evidence before me. As for the husband, Dr B described him indicating that his role was to protect the child from the wife’s harshness and its consequential impact on the child’s development. Dr B opined that whilst he saw this self-description of the husband as a reaction to the wife’s management of the child, his over-involvement and highly protective style of parenting might also be explained by factors within himself.
The evidence of Dr B was comprehensive. It was the subject of cross-examination. I have read the transcript of that cross-examination. To the extent that it was relevant to the parenting determination before the previous trial judge and now before me, there was a cross-examination by senior counsel and Dr B for the obvious purpose of critiquing the family consultant’s report. Dr B said that it could be “argued” that her report was “one-sided” and he was not prepared to conclude what the family consultant concluded about the husband.
Having read the evidence of both Dr B and Ms K, there are differences in their assessment approaches. But, importantly, I do not find that Dr B disagreed with the ultimate opinion of Ms K about what was appropriate for the child. He certainly disagreed with her use of language. What makes me confident Dr B was not saying Ms K was wrong is that she reported what she observed and that was not the subject of argument. Her correctness of conclusion is a matter for the court. In my view, the opinion was open to her.
Dr B went on to describe both parents as having vulnerabilities “and there were psychological reasons which might explain what was going on in the father’s case without resorting to a character assassination of him”. That was a reference to Ms K’ “one-sided” view and language.
Dr B had found that the husband was not afflicted by any psychiatric disorder and consequently, as a result of the observations of Ms K, she concluded that what she saw, must have been the deliberate conduct of the husband. Unfortunately, Ms K used the expression:
Not mad, bad.
I too join with Dr B in expressing concern about the use of the language but any such criticism does not assist me.
Significantly Dr B’s evidence was that he did not think that a refusal to allow the wife to relocate to Israel would be a “devastating blow” for her because she said she would “survive” and could function in raising the child. But that too depends upon how the question was put.
In the context of the discussion, if asked how she would cope, it is unsurprising she said she would survive where it was well-known to the husband that she would not go to Israel without the child. Importantly, Dr B’s task was to assess the psychiatric health of the parties so I remain unsure what probative value other evidence he gave has about parenting issues.
Ms K
I was similarly asked to read the report of Ms K and the relevant transcribed cross-examination. I have already mentioned the use of the language and how she explained what she meant.
It is unproductive for me to delve further into her evidence for the purposes of my consideration of proposal 3 save for the following.
Ms K said (Transcript page 423) that the child had been dragged into the parental conflict. She described the child as being the subject of conversations with the father which were denigratory of the mother which had caused considerable harm and distress. Ms K said that it was bad that the child had no sense of how to conduct or behave herself. The trial judge asked for some clarification and Ms K responded that she thought that there was deliberateness in the husband’s actions in endeavouring to alienate the child from the wife. She went further and said that it had occurred in a variety of ways and had been a continuing pattern. Ms K went on to tell the trial judge that it was confusing for the child to have two different parenting systems and of the two parents, the husband had few parenting strategies. There was then a discussion between the trial judge and senior counsel for the husband. His Honour inquired whether senior counsel was challenging the accuracy of the family consultant’s observations of what transpired in the interview as distinct from her conclusions. Senior counsel quite properly indicated that the observations were not challenged. His Honour was therefore entitled to conclude what the witness saw was correct and so must I. The issue is whether her opinion was wrong. I conclude it was not because it was not seriously challenged.
Importantly for my purposes, Ms K was asked about her recommendations relating to the sharing of the child. She opined that the child needed consistency, regularity and the bulk of the time with one parent, but spending consistent time with the other (Transcript page 465 17 February 2016). Having regard to the fact that his Honour ultimately made orders along those lines which were not subject to appeal and taking into account the fact that Ms K was not required for cross-examination again specifically in relation to proposal 3, the only basis upon which I could adopt proposal 3 would be if there was some justification for saying that there has been a substantial change of circumstances since May 2016.
The outline of case filed by the husband describes those “significant changes”. None of them in my view justifies a conclusion that the evidence provided to the previous trial judge is still not applicable. The issue of “significant changes” requires consideration of the more recent evidence. In relation to paragraph [9] above, the starting point is Ms CC.
Ms CC
Ms CC is a psychologist and the professional to whom the parties turned for assistance after the May 2016 orders about the problems of the child’s academic progress and her social interactions with others including her mother.
The husband filed an affidavit by Ms CC for the purposes of the trial before me attached to which was her report. Ms CC was not required for cross-examination. One of the difficulties with that arises from a suggestion by the husband that her evidence was largely historical but I reject that on the basis that there are examples where she makes statements in the present tense. Thus, to the extent that this evidence was called for the purposes of showing that the husband had had a change of attitude about his view of the parenting role of the wife, I do not accept it.
Ms CC said that when she met the wife in May 2016, she was having trouble with the child’s “difficult and uncooperative behaviour”. It is now common ground that those problems have been resolved and progress has been made. The evidence that might justify a conclusion about the cause of that change is that of Ms CC but there is also the fact that the husband’s time with the child has been reduced as a result of the orders of May 2016.
It will be remembered that Ms K expressed concern about what was happening to the child in the shared arrangement and the different parenting styles. Her conclusion presumably led (in part) to the 2016 orders. Only months later, the child’s progress was noted as good. How much of that was maturation, Ms CC or the orders, I cannot say.
Of the husband’s view about the wife for the purposes of who should be the predominant carer, Ms CC wrote:
(The husband) believes the child’s attachment is with him more so than with (the wife).
As I earlier observed, the husband desired to show that that sort of statement was made historically. Because of what else follows in this report, I reject that.
Ms CC went on to report that she observed the husband and the child and that the relationship was one of warmth, caring and fun between them. She said that the husband showed a sense of psychological understanding and insight into the child’s behaviour. The husband told her that there were a number of possible reasons to explain the child’s past difficult behaviour and poor social skills at school. He pointed to the change of schools in the middle of 2016 after the May 2016 orders and that the child expressed resistance at the time and also fear so the husband worked to reassure her by meeting with her new teacher.
Ms CC reported that the husband at times:
Appears somewhat anxious about the child’s emotional wellbeing, and at times this can tend to express itself in overprotective behaviour.
She went on to observe that the child told her there were expectations and limits in both houses. Ms CC seemed to reality test some of the statements of the child.
Ms CC opined:
[J] presents as a child who has lived and continues to live in an emotionally complex and confusing environment. When filling in a children’s booklet about divorce [the child] responded that her parents still fight about how they take care of her…
Furthermore it appears that [the child] has been and continues to be exposed to negative messages from each parent about the other. This is extremely confusing for a child who depends upon both parents…
[J] also presents as a child with difficulties in emotional self-regulation. This is not surprising given her emotionally complex and conflicted background. My impression is that [the child] is somewhat confused regarding her perceptions of her parents, the nature of her parents’ relationship and her embroilment in the midst thereof. This confusion contributes to [the child’s] difficulties with emotional self-regulation.
Ms CC thought that it was in the child’s best interest to have an ongoing relationship with both parents but it was clear that she considered the child had a close and warm relationship with her father. Furthermore, the child told Ms CC that she loved her father more than her mother.
By September 2016, the child had settled in her new school and had made friends and was doing well at home. The statement about loving her father more than her mother was made in August 2016 but by September 2016, Ms CC indicated there was little difference in respect of the child’s love for both parents.
The wife made no secret of the fact that she thought that the husband was saying things to suit the situation but did not mean them. The husband was certainly now saying in evidence that the wife was a good parent and they were getting on well whereas Ms CC noted that the husband “accuses” the wife of not having sufficient empathy, psychological insight and understanding of the child and of being overly harsh. The last time the parties saw Ms CC was in October 2016 so it is conceivable that there has been an emphatic change in the husband’s view. The wife does not accept that any such statements are what is really in the husband’s mind. I consider her view is well-founded based on the psychologist’s use of the present time in her report which was prepared well after October 2016.
Most importantly, Ms CC said that to maintain a predictable routine for the child, it was important that she is provided with a sense of stability and security to help with her emotional regulation. That is consistent with the evidence of Ms K.
Reverting to the issue of proposal 3 therefore, there is no evidence from any objective witness to indicate that there is a basis to change the status quo by increasing the period of time save for the following matters.
There is a significant improvement in the child’s behaviour and academic progress. As I earlier observed, it is difficult to say that that is a direct result of the efforts of Ms CC if for no other reason than she concluded her work in October 2016.
It is further suggested by the husband as a change for the child that her paternal grandmother has relocated to Melbourne. True it is that the grandmother was in Melbourne for part of 2016 but she only arrived in February 2017 to live permanently. She is 69 years of age and has been to Australia from Israel several times. In her previous visits when the child was much younger, she assisted both parties with the child. She cared for the child when the husband had to work including taking the child to and from school. As such, this evidence is not new. The paternal grandmother was in Australia for eight months in 2016. Just what role she will fulfil on a fulltime basis, remains unclear. I do not find that her paternal grandmother’s role in the child’s life will have much impact on her.
The husband is due to introduce into the child’s life a new baby born by a surrogacy arrangement. That child is due in August 2017. The child will then have a sibling and a person with whom she has a right to spend time. Apart from being excited, how the child would manage with a new baby remains a mystery. In part, that mystery is compounded by the absence of evidence from the husband’s friend Ms DD.
Ms DD
It was the husband’s evidence that he had commenced a relationship with Ms DD who has a four year old daughter EE. He said that a decision was made in October 2016 for Ms DD to move in with him and for her to put EE into a local kindergarten. Ms DD currently lives in Suburb FF. EE has been attending a kindergarten there. The husband’s trial affidavit was sworn on 2 February 2017 and EE was to commence kindergarten four days later. Ms DD went to move in between those dates but the kindergarten change attempt was unsuccessful, so EE returned to the Suburb FF area kindergarten. Needless to say, Ms DD returned to her Suburb FF home and has not moved in with the husband. It was the husband’s evidence that another attempt will be made at the end of Term 1. That term has ended but no application has been made to re-open. When the paternal grandmother was asked what she knew about Ms DD, notwithstanding she had visited Australia for eight months of 2016, she said she had only met Ms DD once. She described Ms DD as “stranger” and she thought that another attempt would be made to put EE into the local kindergarten in six months’ time. Whist the “six months” might be as a result of a communication breakdown between mother and son, there was no effusive description of the relationship of the child with Ms DD by the paternal grandmother.
The nature of the relationship between the child and Ms DD let alone EE remains entirely unclear. It is a significant problem because Ms DD would undoubtedly have been a significant part of the child’s life on proposal 3 not to mention the relationship between the two children.
The husband said that the reasons Ms DD was not involved in these proceedings were that she had been through an unpleasant divorce and was reluctant to be a witness. That fact together with the absence of any observations by the paternal grandmother and the confusion as to what relationship the child will have with Ms DD, has left me wondering just what role Ms DD would play. There is an equally perplexing problem in that whilst the husband will be obtaining a baby in mid-2017 by the surrogacy arrangement, there was no indication from Ms DD as to how she felt about that and what role, if any, she would fulfil as a parent towards that child.
The absence of Ms DD is a significant omission on the part of the husband and gives me little confidence that his proposal (that is proposal 3) has any substance. There is no indication as to how it would work, nor what difference it would make to the child’s life.
Conclusion about proposal 3
Counsel for the wife submitted that not only was there no appeal by the husband against the May 2016 orders but significantly, had the appeal not ended in a remitting of all of the time issues here, the husband would face the prospect of the hurdle sometimes encountered in what is described as the rule in Rice and Asplund (1979) FLC 90-725. Clearly that rule does not apply here but there is substance to counsel’s submission that the husband is being opportunistic. There is no indication of any significant change of circumstances since May 2016.
The one exception to that situation is the fact that the husband points to all of the offers made by the wife for substantial periods of time if the child goes to live in Israel. For example, he points to the fact that there is an eight week block offer in the middle of the year and other blocks of extended time both in Australia and Israel under which, the wife must be presumed to have accepted that he has the capacity to care for the child. Against that is the fact that the wife broke down in the witness box indicating that she was desperate to go to Israel to live and was willing to give up significant periods of time. Those periods of time however have to be looked at through the eyes of the child. On the proposal of the wife, the child would have very limited holiday periods of time in Israel and virtually none with her mother and her peers depending upon what time the husband spends (if any) in Israel. That is a clear indication of desperation on the part of the wife. In my view, that desperation does not alone justify a departure from the orders made in May 2016. The wife’s evidence is that she thought that the child needed her father and should have involvement in his life but the basis upon which the offers were made and the proposal was put, was an indication that she would do her best to cement the relationship between the child and the husband.
The wife’s position is that mundane daily life matters should be under her control whereas holidays were different. She pointed to the offer that if the husband came to Israel during times when the child would be in school, the routine of 10:4 would eventually resume. Whilst I have reservations about that logic and the potential instability it might create for example in an eight week block, the wife thought the child would manage. As the past 2016 orders has shown she has managed, I consider the court should have confidence that she will ensure it works.
That leads me back to the evidence of Ms K. I find there is no evidentiary basis upon which I could find that a shared care arrangement on a week about basis, or on proposal 3, was in the child’s best interest. Best interests have to be determined within the guidelines of s 60CC and I return to those specific issues below. In my view, there is no basis to accept proposal 3.
Proposals one and two
It is settled authority that parents have a right of freedom of mobility, but that right “must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent” (U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed).
Counsel for the mother suggested that in a case such as this, I could not escape the statements made by Kirby J in U v U and AMS v AIF [1999] HCA 26; 199 CLR 160 about “gender neutrality”. In U v U, Kirby J said at [146]:
Courts, exercising such discretions, should not ignore the disproportionate burden typically cast upon women by their being effectively immobilised as the custodial/residence parent. This is burden enough on a woman whose family, friends, employment and new life opportunities are all in Australia. But it is specially onerous for a woman, such as the wife in these proceedings, where all those links are with her homeland overseas.
Counsel for the mother also directed me to [161] of Kirby J’s reasons in U v U, where his Honour said, “Today contact does not have to be exclusively physical or face to face if the cost of insisting on such physical contact is to impose serious deprivations upon the human rights of custodial parents, who are mostly women. To take the contrary view is to entrench gendered social and economic consequences of caregiving upon women in a way that is contrary to the Convention on the Elimination of All Forms of Discrimination against Women to which Australia is a signatory” (footnotes omitted).
It was not disputed that the wife was not required to provide “compelling reasons” to show that it would not be in the child’s best interests to remain residing in Australia (AMS v AIF (supra)).
Consideration must be given to each of the proposed arrangements of the parties, but I am not bound by those proposals (U v U (supra) at [80] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed).
In this case, having rejected Proposal 3, there are only 2 proposals. This case falls to be determined on the basis of which of those proposals best meets the child’s needs. The husband’s proposal would mean the wife would remain in Australia and that has a consequential impact on her ability to parent the child. But there are two other considerations. First, there is the impact of the proposed move on the benefit to the child of having a meaningful relationship with her father. The second is the impact on the child herself. The consequential impact on the wife’s health has an impact on the child benefiting from a meaningful relationship with her mother.
All of these considerations fall within the discretionary role of the court. Section 65D of the Family Law Act 1975 (Cth) (“the Act”) makes that clear that the court may make such parenting order as it thinks proper. That must be subject to ss 60CA and 65AA both of which provide that in deciding whether to make a particular parenting order, the court must consider the best interests of the child as the paramount consideration. That means that if there is a clash between a parent’s desires and the interests of the child, the latter prevails. But it also means that the court must carefully examine the wife’s assertion that her parenting will be adversely affected and have a consequential impact on the child’s best interests if her desires are not met.
The wife’s health
In the proceedings in 2016, psychiatrist Dr B contemplated the impact upon the wife of her being refused permission to live with the child in Israel. In 2015, Dr B saw no sign of depression or that a refusal to move to Israel would be a devastating blow; indeed, he said that the wife told him she would survive. In 2017, the wife has provided extra evidence but certainly no update from a psychiatrist. It was conceded by counsel for the wife that neither of his professional witnesses was a medical practitioner entitled to diagnose depression. In my view, the diagnosis is not necessary but rather, what finding the court can make in relation to the evidence of the impact upon the wife’s parenting skills of living in Australia.
When the wife was cross-examined about her resilience, she described being at the end of her coping ability. She did not say that to Dr B in 2015; she conceded she would still put the child’s need ahead of her own. It was put to her that she did not fall into “depression” after May 2016 and ironically, her response was that if one read the evidence of the husband, she did. In my view, there is evidence the wife is not coping well and that is hardly surprising. It is not just the absence from Israel that must be taken into account but rather, the constant litigation since the parties separated. There have been numerous attendances on professionals all of which do not appear to have resolved their dispute. The expression of the wife that she was at the end of her coping ability is hardly surprising.
The wife conceded that she had no evidence from her general medical practitioner but she is taking anti-depressants because she tendered a prescription for Lexapro with five repeats. That document has a number of dates on it and it is unclear for what period of time the medication is expected to cover but I am satisfied that the very taking of the anti-depressant (Lexapro not being challenged as an anti-depressant) is indicative that there is a problem.
The wife’s evidence was that in addition to the constant litigation, she had experienced “endless disagreement and hostility in her communication with the husband ‘regarding almost every aspect of raising the child’.”. Notwithstanding the husband’s case that subsequent to the May 2016 orders, he has learned a lot and has been to a psychologist, I do not accept that his views have changed at all. No evidence was called from his psychologist.
The wife has been attending two psychologists who she said provided her with emotional support. Both of those persons provided an affidavit and only one was required for cross-examination.
Mr GG
Mr GG is a psychologist who graduated with a Masters Degree in Child Clinical Psychology in 1990. He has been attending the wife subsequent to the orders of May 2016. He described her as being pleased with the fact that she was successful in “gaining full custody” in 2016 but at the same time, “sad”. He described the wife’s position in relation to relocating to Israel as feeling trapped and in despair. She described helplessness and hopelessness. Counsel for the wife properly conceded that is not a diagnosis of depression but it is consistent with the wife’s evidence of being at the end of her coping ability and her desperation.
Ms HH
Ms HH is described as a psychotherapist. She lives in Israel and has had significant involvement with the wife. She told the court that she has a qualification in social work but in Israel, three professions undertake psychotherapy work. Those are psychologists, psychiatrists and psychotherapists and it was in respect of psychotherapy, she met the wife in 2012.
Ms HH knew that the issue before the court related to the wife’s application to move to Israel. She was asked what the original purpose was for the wife attending upon her and she said that the wife was “desperate”, felt deserted by the husband, and excluded from her new partner. The wife told Ms HH that she wanted to “find her place” and be with the child. There is no evidence before the court as to how much psychotherapy is necessary for the sorts of problems described by the wife but in this case, Ms HH said that initially she was treating the wife once per fortnight for up to 50 minutes and that was by telephone. This therapy gave the wife an opportunity to talk whilst Ms HH listened. According to Ms HH, she then talked to the wife about strategies if she could not go to Israel.
Ms HH said that since the 2016 orders, the wife had been functioning better as a mother. I take into account that at the same time these things were happening, the wife and the child were also attending Ms CC. In a rather apt description, Ms HH said of the wife:
She is in a different not a better state.
Ms HH was also asked to give a manifestation of the wife’s state of mind and she described her as crying for hours, anxious, having bad moods and very sad emotionally. She was aware the wife was taking anti-depressants and still treating her only a week before this hearing.
All of that evidence cannot simply be dismissed on the basis that it is not a diagnosis of depression. It is evidence of professional people who are making observations about the level of coping. These were not simply witnesses who were “team supporters” but rather, professionals who I accept reality tested what they were told and looked at the ways to assist the wife to manage. I found their evidence convincing.
To compound the wife’s problems of the constant litigation and the difficulties with the child, the wife indicated that she had no support from immediate family in Australia because her mother lived in Israel and most importantly, so did her fiancé Mr II. She described the absence of Mr II in her life. I accept that Mr II cannot come to Australia because he has three children in Israel whom he shares on a significant basis with their mother.
The wife claimed that she struggled to focus on her work and her business had slowed down; she had significant legal fees to pay for these proceedings. She has gone to Israel every opportunity that she has and describes herself as being very happy there. That evidence was not disputed.
The wife was cross-examined at some length about her family in Israel including her mother’s partner who has health difficulties and does not live with the wife’s mother and also her brother in Israel who provides “low level” support and with whom she is not close. Whilst those are important matters, they are not critical. It would not be those people who would be fulfilling the major responsibilities for the care of the child and it would seem likely that they would make little difference to the emotional state of the wife.
The evidence which I find compelling is that there has been constant litigation or matters associated with it and no sign of that ending. True it is that the wife appealed against the orders of May 2016 which denied her the right to live in Israel with the child and she chose to pursue the matter but it is the response of the husband that is perplexing because his position points to the fact that he does little to support the wife’s struggle to deal with the problems of living in Australia. Those matters become evident when I deal with the issues below.
I am satisfied in the circumstances, the wife’s health is an important matter because it does affect her parenting capacity. Whilst the evidence of Dr B was that in 2015 the wife was resilient, I am satisfied that the whole of the wife’s life at the moment is such that she is struggling to cope. Ms K’s opinion, which I accept, is that happiness as a parent is important.
Dr B had not seen the wife for two years and, as I have said, described her then as having outer confidence as a “steely disposition”. In giving evidence before me, he thought that the outcome of the 2016 residence order was an ameliorating factor because in his assessment, the care of the child took primacy over the move to Israel.
In 2017, Dr B had the benefit of the evidence of witnesses GG and HH. He acknowledged the refusal of permission to return to Israel was a “loss” but he also thought “there would be some aggravation of her anxiety disorder”. He had been asked about depression but he acknowledged he had not re-examined the wife. The “steely resolve” is therefore something of a façade. The anxiety was present and the continuation of that cannot be good for the child because, as Ms K said, she needs consistency and regularity. Anxiety and unhappiness, together with the loss of Mr II’s relationship are matters which concern me in circumstances where the wife has the primary parenting role. I am satisfied now that a shift has occurred because the wife is struggling to cope as a parent.
Events up to separation.
To contemplate why life in Australia is difficult for the wife, it is helpful to look back historically.
After the child was born, both parties worked full-time and a nanny was engaged. The husband had a significant role in the mornings and after the nanny left. That continued through a number of years including attending with the child at child care arrangements. The child began child care at the age of one and that was necessary because both parties were working. That seems to have been a consensual arrangement.
In 2011, the wife became very ill with a chronic fatigue problem. That continued until April or May 2014 and in the intervening period, the husband was almost solely responsible for the child’s care. All of that evidence was before the trial judge in 2016 and in my view, it is not controversial.
Separation and post-separation
The parties’ marriage came to an end in July 2014 when the wife collected the child from a child care centre and effected a separation in controversial circumstances. The husband became aware of it and the police were involved. Indicative of the relationship between the parties is the fact that police have been drawn in on more than that occasion. It is not entirely clear what the husband thought the police could do but this is another aspect of why I accept the end of all litigation is necessary. The wife’s action precipitated the husband bringing an application through the courts after hours service for injunctions precluding the wife from leaving Australia. Berman J made orders but then adjourned the application to two days later.
Two days after the injunctions were put in place, and at a point in time where both parties were represented by counsel, they reached an agreement for the sharing of the child three days with one parent followed by four days with the other and then reversing that time arrangement. The parties agreed to attend upon psychologist Mr G. Thus, despite concerns expressed about the wife’s capacity as a parent (if that is what it was), they agreed to share the child.
One month later in August 2014, the parties were before Senior Registrar FitzGibbon again represented by counsel. They consented to an arrangement which was three days followed by four days each. That too must say something about the confidence that each party had in the other as a parent but also it is indicative that, with some assistance from lawyers, they were able to reach agreement.
In May 2015, Johns J set the dispute down for trial in the following July and, even at that hearing, there was a dispute about the time sharing arrangement but it too was compromised by orders. It is significant that there were non-denigration orders made on a consensual basis. That is indicative of a relationship problem and since then, little has changed.
In the period prior to the July 2015 orders, the child was found to have an abdomen problem that required surgery. She spent two nights in hospital.
Immediately after being released from hospital, the wife advised the husband that the child was vomiting. The circumstances were not explored in this hearing but the husband thought it sufficiently important to set out what happened. He wanted the wife to take the child to hospital for an examination and when the wife refused, he rang the surgeon who said that the child should be taken in. When the wife was non-compliant, the husband attended at her home and effectively forced the wife’s hand. There is no evidence from any medical expert to say that the condition was life threatening or that the wife’s lack of response was irresponsible. The focus of the husband’s evidence was that this incident of attending the wife’s home precipitated an application for an intervention order. That arose after the wife called the police who sorted the matter out. This was a second occasion in which police intervention occurred but it was indicative of the inability of the parties to work out what was clearly their responsibility.
Upon the return of the wife’s application for an intervention order, both parties gave undertakings presumably to behave themselves towards each other. No doubt that led in some way to the non-denigration orders that I earlier mentioned made by consent by Johns J.
February 2016
Over six days in February 2016, the parties litigated both property and parenting issues before Berman J who handed down his judgment on 26 May 2016.
Of those parenting orders, the husband was clearly unhappy.
Joint decision making?
The 2016 orders gave the wife sole parental responsibility in respect of education and health issues affecting the child but there were notification requirements to the husband as well as a requirement that the parties make a genuine effort about joint-decision making. The obvious conclusion is that the trial judge saw little prospect of a resolution of significant long term decisions relating to education and health such that he ultimately devolved responsibility on the wife even with consultation provisions. The problem still did not go away.
I have already referred to the evidence of Ms CC but how she came into the picture in 2016 is relevant.
It was common ground that the child was having difficulty at school. The school arranged for the child to see a counsellor. Ms CC became involved when the school referred the parties to her. In her evidence, the wife volunteered that the school had declined to continue the counselling arrangement that they had put in place with a school counsellor. I asked why that arrangement arose and the wife said that the husband had refused to allow the counsellor to continue which necessitated using Ms CC.
The wife’s claim was denied by the husband and he produced emails. I do not find the emails flattering to the husband.
The wife wrote to the husband of the need for school intervention for the child and accused the husband of preventing it occurring because “you have something personal against the social worker”. The husband wrote back denying that he had any objection to the social worker and that he had clarified his position to the school. At first blush, this looks like just another combative approach between the parties to communication but I am satisfied the wife’s response was one of concern because she said that she understood the school had declined the child’s continued attendance upon the counsellor. The wife asked the husband for evidence of what he had written. Rather than provide whatever he had written, the husband was unresponsive saying that he had sent a clarification. There is no doubt that the anger in the wife was palpable and her response was not particularly flattering but my concern is that the husband emailed the school confirming that he was being “bombarded” with messages from the wife about what the school had “allegedly told or didn’t tell her”. Rather than indicate in emphatic terms that he had no objection to the child working with a social worker, he simply said that he would prefer everything to be done in writing to avoid misunderstanding. The school’s ultimate position some days later was to say after discussions with the social worker involved, it “may be more beneficial” for the child to work with an external provider.
The clear inference form the trail of emails and the response of the school was that they were either no longer prepared to be involved in what was clearly a conflictual arrangement between parents or that something had been said justifying the school feeling that the social worker was compromised. A simple response by the husband that he had emailed the school indicating that he had no objections may have resolved the matter but it did not.
All of this evidence goes to the question of the dilemma that the wife faces in endeavouring to cope with decisions that need to be made about the child. My focus is on whether or not the May 2016 orders which post-date the counselling issue, have made any difference. In my view they have not.
Problems for the child after May 2016
In 2016, Ms CC received history from the wife of the child hitting her father, telling her mother off, being unkind to the cat and hurting children at school. The wife was concerned about the child’s aggression. The wife also confirmed to Ms CC that there had been some improvement in the child’s behaviour but that after staying with the husband, it deteriorated. She alleged that there were few limits or boundaries on the child’s behaviour at her father’s home and so when the alternate restrictions were put on place in the wife’s home, the child accused her of being mean. When Ms CC spoke to the husband, he said that he believed that the wife had punished the child for small misbehaviours and was inappropriately harsh in her punishments. These were all subjective perceptions and having regard to the nature of the communications between the parties at that time (bearing in mind that this was all around the time after the hearing of the 2016 trial). It is significant that in 2017, albeit that the last time Ms CC saw any of the parties, was in October 2016, she wrote:
(The husband) believes the child’s attachment is with him more so that with (the wife).
The wife was more expansive about the problems associated with the child at that time. She acknowledged that the class teacher had said the child was aggressive and raising her hands on other students and she observed that of 26 incidents of aggressive behaviour, 23 of them occurred on days prior to the 2016 orders when the child was in the husband’s care. Similar aggressive problems were referred to when the wife was overseas caring for her mother after surgery.
In 2016 at the time that the hearing before Berman J was taking place, the teacher reported that the child was “annoying other kids”, making noises and interfering with other children’s work. By May, when the orders were about to be pronounced, similar difficulties were raised by the teacher and it was noted that children did not want to play with the child. The school was expressing concern about the child’s behaviour and it involved the assistant principal speaking to the wife.
The husband identified the issue to Ms CC as an attachment issue as can be seen from the quote from Ms CC above. In cross-examination, the husband said that this was all just “background” or history that he had given to Ms CC. When he was pressed about why Ms CC would use the present tense, the husband dismissed the issue saying that there was no attachment anymore because that only occurred in children up to six years of age. He said that up until that period of time attachment was important.
Given an opportunity to indicate what his views were about the wife’s insight into the child’s psychological needs, the husband said that he did not know and could not say because all he could rely upon was what he observed in the child and from his perspective, everything seemed fine. When it was put to him that in January 2016, that was certainly not the case, he agreed but he described the problem as the child being “sick” and that there were gaps in her education. The husband saw no connection with the nature of the parenting role that he was fulfilling. The evidence of Ms CC supports the contrary conclusion.
In so far as the husband was distancing himself from what Ms CC had written about attachment on some basis such that she was simply repeating the background information he had given, I reject that. This was his own witness but in the narrative of the affidavit, Ms CC said she had read Chapter 15 of the Family Law Rules 2004 and had also complied with the guidelines of the Australian Psychological Society. I find it difficult to conceive that she would not have distinguished between history and background as distinct from an opinion expressed by the expert.
The husband was saying to Ms CC that there was not an attachment to the wife. He was indicating that the problems in 2016 up until the commencement of the work of Ms CC were nothing to do with him but were in some way pathological.
It was the husband’s evidence that since May 2016, the child has often complained that she wants to spend more time with him and she does not understand why she has to return to her mother “so quickly”. The child has complained that she was sad going to school from his house but then having to return to the home of her mother at the end of the day. He said that he explained to her what it was all about and that he had to be firm to get her to leave. He then offered the reasoning behind all of that indicating that the significant reduction of time meant that he had not been able to participate in the child’s schooling and extra-curriculum activities as he had previously done. Two observations must be made about that. First, he did not appeal against those orders. Secondly, he wanted the court to understand that he could cooperate with the wife and that he had changed his views about the significance of her role. The evidence does not support his assertions.
I again reiterate that I am looking at these matters on the basis of the capacity of the wife to cope in parenting the child with the difficulties I accept have been in part, created by the husband.
The husband’s view of the wife
In his evidence, the husband responded to the evidence of the wife in which she set out her relationship with Mr II. The husband said he had never heard of Mr II. He observed that the child had never mentioned him. It was not suggested that the child had been manipulated in some way not to talk about Mr II. But, as if to infer that the wife’s relationship with Mr II was not serious, he pointed to the fact that he was “aware” that the wife had a “Tinder account” and that as recently as October/November 2016 it was still current. I am not at all clear why that evidence was led. The issue was not seriously explored but the inference I have drawn is that the husband was of the view that Mr II was something of a recent invention. I reject that.
The husband also referred to conversations that he had had with the child and said that she had repeatedly told him that her mother had said that they would live in Israel because the “lawyer” had said that he was a bad dad and not good for her and that he had told lies about the wife so she needed to live with the wife away from him. The wife was asked about this issue and she readily conceded that she had explained to the child about a psychologist speaking with her but then told the child that both parents had to agree upon where she was to live and that there was a person called a lawyer who would help. The wife’s view was that was how the child came to use the word “lawyer”.
It was not suggested to the wife that she had orchestrated these conversations nor that she was endeavouring to persuade the child to be an ally against the husband. There is no evidence that the child has any understanding of the significance of a move to Israel but it must not be forgotten that the child has had significant trips to Israel in her short life and is a seasoned traveller. She has attended kindergarten in Israel albeit for short periods of time, speaks Hebrew as her daily language, and has spent time and made friends with, children in Israel. She knows, and is acquainted with, not only Mr II about whom the wife said that there is a good relationship, but also his children.
It is hardly surprising therefore that the child would ask questions about Israel.
The CC evidence
Unfortunately, Ms CC ceased her involvement with the family in October 2016 so to some extent her evidence is of limited relevance. She said that the child expressed a close connection with her father and enjoyed spending time with him. The child was able to describe feeling happy when involved in her father’s life. She thought that the husband showed a sense of understanding and insight into the child’s behaviour. He is clearly to be complimented for that.
In a piece of evidence consistent with the operation of Ms K, Ms CC thought that what lay below the child’s behaviour was a sense of anxiety, anger, confusing and conflicted loyalty as a result of having to move across two parents who were antagonistic to each other. She thought that the child could be controlling by the use of her behaviour and significantly, she said:
This can be understood as her way of gaining some control, compensating for the lack of control she has in her life, such as where and who she lives with.
Both parties agree that the behaviour has improved. The paragraph that I have just quoted from Ms CC indicates the problem. This child is very much observing the conflict between the parents and struggling.
That problem will not go away by moving to Israel because, if it occurs, there will be blocks of time with the husband but also frequent Skype communication. A move to Israel will however lessen the shuffling back and forth between houses which Ms CC pointed to as creating confusion.
The husband says the child wants more time with him and that her mother describes him as a “bad dad” and is otherwise critical of him. The wife readily concedes that she has used pejorative language and that she should not have done so but in so accepting her fault in the matter, I find that there is every basis to say that the expert advice given by Ms K in 2016 to the last trial, still remains. This child needs a consistent lifestyle predominantly provided by one parent where there is no confusion about where she is living. The certainty and stability cannot be established whilst there is anxiety and loss in the wife, and a desire to live in what she considers to be her homeland. The wife’s capacity to parent this child continues to be under pressure when there was a finding by the 2016 trial that she should be the primary person responsible for the care of the child.
How to approach the determination?
As for what is proper (s 65D) and how the court’s discretion is exercised, in Grella & Jamieson (2017) FamCAFC 21, the Full Court stated, at [18], that:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition. In U v U (supra) Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) said (at [90]):
90. …The appellant’s submission is that the trial judge gave too much weight to the child’s short term welfare, and commensurately too little to her long term welfare, and that the Full Court erred in failing so to hold. That is, as the respondent submits, no more than a complaint about the weight which the trial judge attached to admittedly relevant considerations. Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one…
In McCall and Clark (2009) FLC 93-405, the Full Court held that it was appropriate to adopt the “prospective approach” when considering the benefit to a child of a meaningful relationship with both parents ([119]). The Full Court also accepted (at [121]) the interpretation of “meaningful relationship” as set out by Brown J in Mazorski & Albright (2007) 37 Fam LR 518. “Meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
Their Honours considered that the legislation required a court to focus on the benefit to the child of a meaningful or significant relationship. I have done that here. I find both parents have a meaningful relationship but the child benefits from their very different roles. Notwithstanding the husband’s pessimism, the evidence does not support a conclusion that the meaningful relationship with him by a move to Israel would be such that the child would no longer benefit from it.
PARENTAL RESPONSIBILITY
Section 61DA provides that when making a parenting order, the court is obliged to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. The orders of May 2016 dealt with that issue and gave the parties shared (as distinct from equal shared) parental responsibility save that the wife had sole parental responsibility for certain things.
Those orders were not the subject of appeal or of any remitter by the Full Court.
Despite the mandatory nature of the provision, it is unnecessary for me to consider the presumption again. In SCVG & KLD (2014) FLC 93-582, at [80], the Full Court said:
a)Thus where there is agreement that notwithstanding an order for equal shared parental responsibility has or will be made, an order for equal time would not be in the child’s best interests, in agreeing to allow the hearing to proceed in this manner the court has, in effect and substance, considered both s 61DA (which in any event the existence of the order for equal shared parental responsibility renders irrelevant) and s 65DAA(1). With those matters resolved early in the proceedings, notwithstanding the “legislative pathway” described in Goode, ss 61DA and 65DAA(1) need not be addressed again.
The parties have litigated in that way here. It was not a contentious subject and accordingly, it is unnecessary for me to consider s 61DA further.
Section 65DAA requires a court to contemplate a regime of time if the parenting order is to provide for equal shared parental responsibility. That too is no longer an issue in this case.
The parties’ positions
The Independent Children’s Lawyer submitted that the child should live in Israel. She rejected the husband’s proposal submitting that the wife’s emotional and psychological state would not be good for parenting. She acknowledged that there was no clinical diagnosis of depression but that that did not overcome her sense of loss and despair. She submitted that the loss and despair would be compounded by the loss of her relationship with Mr II and the anticipated prospect of having a child born of surrogacy with Mr II.
The Independent Children’s Lawyer submitted that the court should accept that the wife was desperate to “go home”.
The Independent Children’s Lawyer rejected not just the husband’s proposal of the child remaining in Australia but also his constellation of time because the evidence of Ms K supported a conclusion that the bulk of the child’s time should be with one parent to ease the tensions for her as well as provide stability in one home. Thus, splitting a week as proposed by the husband was not in the child’s best interest.
It was submitted by the Independent Children’s Lawyer that after five years of different parenting styles and numerous professional interventions, it was time to end the conflict. In five years, the parties and in particular, the child have seen an extraordinary number of professionals. She submitted that whilst the husband said there was no conflict, his own witness Ms CC did and the evidence supported a conclusion that it was still a problem.
The husband’s view about the wife going to Israel
It is the husband’s evidence that if the child saw him for “a few weeks a year on holidays” along with Skype conversations, that would not compensate for the lack of his physical presence in her life. Whilst that is self-evident, the statement looks at it from the perspective of the parent rather than the child. The husband went on to say ([70]) that if the child went to Israel, she would “become a tourist” visiting Australia a few weeks a year “not a daughter being raised by her father”. That was an unfortunate analogy because it ignores the proposal of the wife. If all of the time proposed by the wife was taken up by the husband, the child would spend a lot of time with him but more importantly, the gaps between visits would not be all that significant. His absence during those gaps would be ameliorated by Skype.
Obviously, the husband would not be able to participate in all of the daily activities of his daughter including at weekends when he would otherwise have her in his care but the Skype content will be adequate for the child’s needs because the wife has agreed to organise it through a mobile telephone arrangement and as such, the husband would be able to participate in a variety of activities. Even if that were not so, the husband would be able to converse with the child about all of those activities. I find in the circumstances that the child would not be prejudiced in terms of the nature of her relationship with her father nor in relation to her welfare and development simply by the gaps of physical contact with her father.
Much depends however on whether the husband takes up the opportunities. He has indicated that it is impractical for him to do so but I reject that on the basis that he has the financial wherewithal to be able to do it, no serious commitment to Ms DD such that his trips would be prejudicial to that relationship, and the nature of his forthcoming relationship with the child to be born, remains something of a mystery. For example, if he is to be the primary parent of that new born child, there is no suggestion of any child care or nanny arrangements. The child could presumably travel with him over the ensuing few years prior to her commencing school. That arrangement would enable the child to have a relationship with that child. I reject the husband’s suggestion that having a new born child would make it impracticable because he could not explain why it would be so.
The wife too is anticipating a child by a similar surrogacy arrangement but it has not been suggested nor was it put to her by the husband, that such an arrangement would prejudice her trips to Australia for the purposes of arranging contact between the child and the husband. Indeed, the evidence of Mr II suggests that he would travel occasionally as well with his children. It has not been suggested that there is a financial restriction upon the wife being able to fulfil her part of the arrangement.
Would the wife honour her proposal?
I accept that the wife is a person whose word is reliable. I find she has the financial strengths to be able to fulfil what she proposes. Her business opportunities are here in Australia which is an additional drawcard to ensure her return with the child. I find she values the husband’s role in the child’s life and sees it as significant.
The husband’s emotive language at [71] was that he would “inevitably lose the true father-daughter relationship forever” making reference to the fact that such a relationship could not be recovered once the child became an adult. There is no evidence to support that assertion but even if, as I have observed, the relationship will change, the whole success of any ongoing relationship depends upon the efforts that each of the parents make. The husband’s negative approach in dismissing the concept of him travelling to Israel on the basis that it was impracticable, gives rise to questions as to how committed he is to developing a relationship with the child under difficult circumstances. As the current orders from 2016 stand, his time has been limited by the court and the bulk of his time focuses on leisure activities such as weekends and school holidays. That would not change if the child went to Israel because the school holiday periods would still be available if the husband took up the proposals of the wife. Clearly, the weekend times would be different but as they are limited to alternate weekends, I am satisfied that the Skype substitute would enable the child to benefit from continuing what I find is currently a meaningful relationship with her father.
In my view, the emotive observations of the husband are not supported by the evidence of Ms CC. She found that there was a good parental relationship between the child and the husband but she was also aware of the wife’s desire to move to Israel. Nothing I can find in her evidence, indicates that a move by the child to Israel, will significantly damage that close relationship.
The husband going to Israel to live?
The husband made it clear that he could not operate his business in Israel. Sensibly, that was accepted by the wife. He has a relationship here albeit I am unsure about its nature, and his business interests lie here even though they could be dealt with electronically elsewhere. The husband’s mother is now intending to reside in Australia. In my view it would be unreasonable to expect him in those circumstances to move to Israel to live permanently.
What is in Israel for the wife?
Whilst the focus of the court’s attention must be on the best interests of the child, s 60CA requires the court to take into account the interests of other persons. In this case that is the wife. It is where those interests clash that the child’s welfare takes precedent. But in this case, the happiness of the wife as a parent is not just about leaving Australia. It is also the case that the wife knows Israel, treats it as her home, has supports there and intends to conduct her business interests from there.
The wife has visited Israel numerous times and on occasions prior to separation, the whole family went. In 2015, she was in Israel for five months. In 2016 she went with the child on two or three occasions and again over the immediate past summer period, she was there for some weeks. Israel is well known to her.
J knows the area well. She has enjoyed sleep overs at her grandmother’s house and has cousins with whom she appears to have connections.
Importantly, the child should settle into Israeli life quickly. She is fluent in Hebrew and able to converse in that language at a similar level to children of her own age. The children of her own age include cousins and friends with whom she is familiar from her recent trips there.
The wife has made inquiries of a school in Israel which she described as a top ranking public school in City JJ and that evidence was not challenged by the husband. She set out the curriculum which seems to be consistent with that with which the child would be familiar in Australia.
There is no reason for me to doubt that there will be no adverse effects in the child transitioning to life in Israel.
The wife’s fiancé
Albeit that the child has not mentioned Mr II to the husband, I am satisfied that he is supportive of the wife and her proposed move to Israel and has a good relationship with the child. There seems to be a similar relationship between the child and Mr II’s children. He was an impressive witness and not only came to Australia to support the wife but also answered questions in a measured and thoughtful way. He indicated that his relationship had never wavered and he was well aware of the wife’s proposed move to Israel. I am satisfied his understanding of the wife’s move takes into account that they will not rush things and each will keep their lives partly separate until they are ready to move in together as a family. When asked whether he saw difficulties, he said that if they arose, they would be the subject of discussion and in relation to the wife’s proposed surrogacy arrangement, he was supportive and indicated that it would not commence until the wife was settled in Israel.
Mr II’s relationship with the husband is obviously non-existent. He was aware however of major differences between the husband and the wife which arose out of their differing parenting roles and styles. I am satisfied that he is supportive of the wife but not destructive of any relationship between the child and the husband.
Support systems in Israel
The wife set out that one of her major difficulties in Australia is that she struggles to cope without her family or her fiancé. The extended family lives some 15 to 20 minutes from where she proposes to live and she pointed to the friends and family around her who are able to provide support. She observed that she did not have that support system in Australia and gave an example of the fact that her apartment was recently flooded and she had to rely upon the generosity of friends rather than assistance from the husband.
If it is accepted that the wife’s capacity to cope in Australia as a parent is restricted, the move to an area where she has the support of her family, must have a positive impact upon the child. Bearing in mind the observations of Ms CC about all of the problems that the child was having up until a year ago, there is no reason for me to believe that a move to Israel would prejudice those improvements because the wife would be with her, there would be extended family relationships and there would be the support of Mr II and his children who the child appears to know well.
The wife’s relationship with the husband
The communication between the husband and the wife is poor and although the husband endeavoured to indicate that things have improved, I find his criticisms of the wife remain the same. Notwithstanding his attendances upon a psychologist who did not give evidence, I find that he still believes he is the better parent to care for the child.
The wife finds dealing with the husband extremely difficult. She readily conceded that the text messages that she sent him were rude including describing him as an “idiot”, “repulsive” and the like. Her explanation for that conduct was satisfactory. She described it as inappropriate and that it arose because she found herself managing all of the problems by herself and when conflict arose, she acted inappropriately. She used language such as “pathetic” and “liar” and that he was a “bad dad”. She explained these again in the context of having to deal with all of the problems herself without the support that I accept is available to her in Israel. She readily acknowledged though that her views about the husband’s parenting and her criticisms of him were not grounds to deny the child a relationship with him. She observed that most of her concerns about the husband’s parenting arose out of issues relating to holidays and that those will continue.
I accept there is much to be said for the wife’s views. Even if she remained in Australia, the husband’s time would be restricted to a holiday type arrangement and periods intervening, enable the relationship to be continued by electronic means with which the child is quite comfortable. It is difficult therefore to see much will change particularly if the husband travels to Israel to ensure that the relationship gaps are not extensive.
In cross-examination, the wife conceded that she is desperate and that accounted for the increasing times that she is offered from when the proceedings began. I do not criticise her for that because as the child has settled as a result of the work that has been done with her, the wife accepts that the child can spend extensive periods of time in Australia and with the husband generally without it destabilising not only her welfare but also her relationship with the wife. I accept that the wife has thought those matters out carefully. As such, there is no reason for me to doubt that the relationship between the husband and the child will change but not to any significant disadvantage for the child.
One such example of the parties’ inability to communicate together lies in the vexed question of culture. The wife adheres to her Jewishness and there have been times where the child has indicated that she wanted to be involved in Christian celebrations such as Christmas. It was put to the wife that there ought not be any criticism of the husband because although he is an atheist, he clearly embraces the Jewish culture. I accept the wife’s evidence that the only concern she has arises from her concern that the child is getting confusing messages. That said, I find that this is an adult problem rather than one for the child. She is in a secular school and in a largely secular community where because of her age, it is hard to accept that she is doing more than enjoying all of the things that form a rich part of childhood. As she grows older, she will no doubt challenge various views but to the extent that a finding is necessary, nothing in the evidence indicates to me that the husband was being deliberately obstructive of the nature of the relationship between the wife and the child by using some sort of Christian celebration concept. I accept that it was the child who raised the subject of how other children in her school were celebrating such things as Christmas and the husband acted appropriately by encouraging it. Whilst Jewish celebrations may philosophically conflict with Christian celebrations, those are adult problems rather than for a child.
Nothing I heard indicated that if the child was living in Israel, she would be prevented from being exposed to that rich tapestry of life called childhood.
Section 60CC
The court is obliged to determine the best interests of a child in the context of the mandatory provisions of s 60CC of the Act. I am satisfied that for the purposes of 60CC(2) there is benefit to the child in continuing to have what is an already established meaningful relationship with both of her parents. Whilst it is a balancing act, I find that the move to Israel will not make less meaningful the relationship between the child and her father. That does not mean that it will not change but the critical question is how does the child benefit from that relationship. Much depends upon the role that the husband will play. Whilst much of the focus in relation to that issue was on the relationship between the husband and the child, it must not be forgotten that the relationship between the child and the wife is equally critical. A move to Israel will enable the child to benefit from the relationship that she has with her mother which is clearly an established and settled one now that the orders of 2016 have been implemented for almost a year.
There is no need for the court to be concerned about physical or psychological harm arising from family violence any longer.
In respect of additional considerations required of the court under s 60CC(3), I am satisfied that the child is too young to have a view that carries much weight. There is no evidence to indicate that she is sufficiently mature to strongly advocate a change in where she lives either way. I have set out the nature of her relationship with both of her parents and the importance of both parents in her life. Other people who are now significant persons in her life are mostly on the side of the wife. Mr II and his children are self-evidently significant persons in the child’s life from the description that the wife gave which was unchallenged. The role that the paternal grandmother plays must not be discarded but I do not have the impression that she is a significant figure in the child’s life. The absence of the evidence of Ms DD does not enable me to find what sort of a relationship the child has with her. The telling evidence of the paternal grandmother that for the significant part of 2016 when she was in the husband’s house, she only met Ms DD once indicates that she was unable to describe the nature of the relationship between the child and Ms DD. Thus, I can conclude that a move to Israel will enhance the relationships that the child currently has with all of the other people in her mother’s life.
For the purposes of s 60CC(3)(c), (ca) and (f), I find that both parents have wanted to have a significant role in the child’s life but the orders of the court in 2016 have very much set the foundation for the differing roles of the parents. To the extent that it is necessary to make a finding, I am satisfied that the husband has fulfilled the times that the court ordered him and Ms CC’s evidence supports the views of the husband that he has a good relationship and is very much involved in the child’s life.
Section 60CC(3)(d) and (e) concern the question of how any relationship will continue if the tyranny of distance applies. The wife accepted that the child will be affected by a move to Israel because of the absence of the husband but she was positive about the fact that the child would be able to deal with that. The unknown question is what role the husband will play in terms of travelling to Israel. For the purposes of this particular consideration, I find the husband has the capacity and no excuse for not being able to travel to Israel. My very strong impression is that he desires not to go to Israel as a way of endeavouring to keep the child in Australia.
The practical difficulties associated with a move to Israel are not an impediment having regard to how well the child travels but importantly, both parties are seasoned international travellers. It is unnecessary for me to consider the attitude to the child demonstrated by each of the parents and their attitude to the responsibilities of parenthood. Those matters have already been determined by the court in 2016 and it is unnecessary for me to deal with them again.
It is not necessary in this case that I make any findings in relation to family violence as both parties have now distanced themselves from each other.
For my purposes, s 60CC(3)(l) is important. Having determined that the wife will cope better as a parent in Israel and that there is no impediment to the ongoing benefit that the child receives from her relationship with her father but that such a move will strengthen her relationship with her mother, I find that it would be preferable to make an order that will bring all of this to an end so that the parties can work towards supporting the child for the rest of her childhood. In those circumstances, I propose to make final orders rather than interim parenting orders to prevent further litigation. It is important to observe here that the parties have had significant litigation but have also been involved with numerous professionals. It is time to bring all of that to an end.
The orders at the commencement of these reasons are in the best interests of the child.
I certify that the preceding One Hundred and Seventy Five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 April 2017.
Associate:
Date: 13 April 2017
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Family Law
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