Fitzroy & Fitzroy
[2009] FamCA 954
•6 October 2009
FAMILY COURT OF AUSTRALIA
| FITZROY & FITZROY AND ORS | [2009] FamCA 954 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Relocation |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 124 FamLR 756 CDJ & VAJ (1998) 197 CLR 172 G v C [2006] FamCA 994 Godfrey v Sanders [2007] FamCA 102 Goldrick & Goldrick [2007] FamCA 1260 Goode & Goode [2006] FLC 93-286 Marsden and Winch (No3) [2007] Fam CA 1364 Mazorski v Albright [2007] FamCA 520 McCue and Costa [2009] FamCAFC 92 Mulvany and Lane [2009] FamCA 76 Neil v Nott (1994) 68 ALJR 509 Pitkin and Hendry [2008] Fam CA 186 Rosa and Rosa [2009] FamCAFC 81 Sampson & Hartnett [2007] FamCA 1365 Secretary, Department of Health and Community Services v. JMB & SMB (1992) 175 CLR 218 Taylor & Barker [2007] Fam CA 1246 U v U (2002) 29 FamLR 74 |
| APPLICANT: | Mr Fitzroy |
| RESPONDENT: | Ms Fitzroy |
| INTERVENORS: | Mr and Mrs Fitzroy (Snr) |
| INDEPENDENT CHILDREN’S LAWYER: | Robert Grant |
| FILE NUMBER: | BRC | 5947 | of | 2008 |
| DATE DELIVERED: | 6 October 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 5 & 6 August 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Rosen Rosen Lawyers |
| RESPONDENT: | In person |
| INTERVENORS: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Anderson |
| INDEPENDENT CHILDREN'S LAWYER | Grant & Associates |
Orders
IT IS ORDERED THAT
The parents of the children L born … January, 2003 and A born … June, 2005 (“the children”) have equal shared parental responsibility for them.
The children live with their mother.
The children spend time with their father and the paternal grandparents at all such times as might be agreed between the parties (including the paternal grandparents) and otherwise with their father:
(a)Each alternate weekend from after school Friday until 6.00pm Sunday and until 6.00pm Monday when any such period coincides with a public holiday or pupil free day;
(b)For one half of all school holidays;
(c)Should Father’s Day occur on a day when the children are not otherwise with the father pursuant to these Orders, then from 9.00am to 5.00pm that day;
(d)From 12.00 noon Christmas Day until 5.00pm Boxing Day in 2009 and between those times on those days each alternate year thereafter and from 5.00pm Christmas Eve until 1.00pm Christmas Day in 2010 and between those times on those days in each alternate year thereafter.
(e)At such other times coinciding with the children’s sporting, educational or other extra-curricular activities occurring outside of school hours, including weekends, as the father might choose, having first given to the mother not less than 48 hours notice of his intention to do so.
Changeover for the time provided for at paragraph 3(a), (c) and (d) of these Orders shall be effected by the mother delivering the children at the commencement of such time at a convenient place approximately half way between M and her place of residence and the father collecting the children at that place and by the father returning the children to the mother at that place at the conclusion of such time.
Changeover for the time provided for at paragraph 3(b) of these Orders shall be effected by the mother delivering the children to the father’s residence at the commencement of each such period of time and the father delivering the children to the mother’s residence at the conclusion of each such period of time.
The mother shall forthwith take all such steps and sign any such documents as might be necessary to provide to any school, pre-school or child-care facility (as the case may be) attended by the children, authority for the father:
(a)to receive any and all report cards and reports as to the children’s educational, sporting, cultural and social progress and notification of all educational, sporting, cultural and other activities organised by any such institution;
(b)to participate, together with the paternal grandparents as they might choose, in any and all educational, sporting, cultural and other activities organised by any schools, pre-schools or child-care facilities (as the case may be) attended by the children to which parents and/or grandparents are invited.
The father shall be at liberty to communicate with the children by telephone, e-mail and the internet at all such reasonable times as he might choose.
The parties shall each:
(a)keep the other advised of their current residential address and a contact telephone number and shall advise the other forthwith of any change of same;
(b)immediately notify the other in the event of the children or either of them suffering any significant injury or illness and shall provide details of same and any and all treatment in respect of same;
(c)take all steps, and sign any and all documents, necessary to authorise the other being provided with details of all medical treatment, or counselling or therapy provided to the children.
The mother shall advise the father of the schools, pre-schools or child-care facilities (as the case may be) to be attended by the children forthwith upon any application being made for their enrolment.
Within 7 days of the enrolment of the children at any school, pre-school or child-care facility (as the case may be), the mother shall notify the father of the name and address of same and shall cause to be provided to the principal of same a copy of these Orders, the provision of which is authorised pursuant to s 121(9) of the Family Law Act 1975 (as amended).
The application of the Paternal Grandparents is dismissed.
IT IS NOTED THAT:
A.The nature of the relationship between the father and the paternal grandparents is such that they are likely to spend time with the children during time spent with them by the father and it is the intention of these orders that they do so.
BThese orders are predicated on the intention of the mother to reside within the Sunshine Coast area and the intention of the father to continue to reside in the M area.
IT IS NOTED that publication of this judgment under the pseudonym Fitzroy & Fitzroy and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC5947/2008
| MR FITZORY |
Applicant Father
And
| MS FITZROY |
Respondent Mother
And
| MR AND MRS FITZROY (SNR) |
Intervenor Paternal Grandparents
REASONS FOR JUDGMENT
In November 2007, the cohabitation of the mother and the father of L, now aged about 6½, and A, now aged 4 came to an end. The father has a child of a previous relationship, B, aged about 13½ who currently lives with him, and who, for nearly three years, lived with the parties.
The issues in this parenting case (in which the paternal grandparents have intervened) centre on the mother’s wish to live with the children in Y in northern Queensland. In that event, if the father does not move there (or proximate to it), there will be a significant geographic distance between he and the children. He currently lives on Brisbane’s southern outskirts. The distance, and the practicalities of travel, between there and Y (particularly if that travel is to include B as he would want), will likely make regular time between he and the children difficult.
As an alternative, the mother seeks to live with the children on the Sunshine Coast. If that was to occur, that arrangement, too, presents some practical difficulties in the exercise of regular time.
As originally framed, the orders sought by the father included an order that the mother “be restrained…from maintaining a residence for the children which is more than fifteen kilometres radius of [a locality on Brisbane’s southern outskirts] in the state of Queensland”. That was later amended to provide for orders “in the event that the mother chooses to live at a distance more than twenty kilometres” from him.
It is only in that event that the father seeks an order that the children live with him. Otherwise, he seeks an order that the children live with the mother and that he spend time with them each alternate weekend and each Wednesday during school term and for one half of the school holidays.
Unsurprisingly (given her historical role in the children’s care) the mother says that she would not countenance being geographically remote from her children. Furthermore, if a restriction on her choice of a place to live means her maintaining that full time caring role, the maintenance of that role would predominate.
The Independent Children’s Lawyer contends for orders that the children live with the mother. Additionally, however, specific orders are sought for the children’s time with the father. Those orders foresee alternate weekend time with the father together with time on Wednesday each week. Inherent in those orders, then, is a restriction on the capacity of the mother to not only live with the children where she would wish, but a more restrictive implicit condition on that location.
The paternal grandparent’s application is founded in a desire to see their grandchildren as frequently as reasonably possible and is very much linked to whether the children will be living with their mother in Y (or not within a reasonable distance of their current residence which is close to the father). Their position will be referred to further below.
The parties resided together for the vast bulk of their cohabitation in Y. The children were each born in Y and lived there until they were, respectively, about four and two. The parties and the children had been living in Brisbane for a brief period of time prior to separation and the mother has, by reason of the practical effect of the interim orders currently in existence, and the shadow of these proceedings, been precluded from residing in Y for close to two years.
Parenting orders were made in August 2008 by Wilson FM. They provided for the father to spend alternate weekend time with the children. The ordered co-parenting regime has pertained since that time, save that the mother stopped the father spending time with the children for a period in November, 2008 in circumstances that will be referred to below.
Family reports prepared by a Family Consultant, Ms D in December 2008 and April 2009 were in evidence before me. In her first report Ms D recommended that the children “do not relocate to [Y] with their mother. The issue can be reviewed when the children are older and do not require as frequent time with their other parent in order to maintain relationships”.
Ms D goes on to say, “It is my recommendation that [the children] spend alternative weekends with their father and sister [B] in addition to each Wednesday they are to be returned at an agreed time each Wednesday night following their sporting activities”. In her most recent report, in April 2009, and again at the hearing, Ms D said that she “stood by” her previous recommendations.
Applicable Principles
The effect of the 2006 amendments in cases such as the present has, to one extent or another, been the subject of judicial consideration, in particular, recently by the Full Court of this Court. (See, eg: Taylor & Barker [2007] Fam CA 1246; Sampson & Hartnett [2007] FamCA 1365; Goldrick & Goldrick [2007] FamCA 1260; Rosa and Rosa [2009] FamCAFC 81; McCue and Costa [2009] FamCAFC 92.).
In Goode & Goode [2006] FLC 93-286, the Full Court examined the amendments more generally, albeit in the context of interim orders and not in a “relocation case”.
In Pitkin and Hendry [2008] Fam CA 186, I attempted to examine the statutory requirements and the principles emerging from the decisions of the Full Court then decided. I incorporate that analysis into these reasons and make it clear that, in this case, I am applying the principles there outlined.
Specifically, as I said there, the principles emerging from the Act and the decisions which bind me are, in my view, as follows:
·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: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
·Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children.
·In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;
·All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different.
·The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.
·The court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly.
·Findings in respect of the relevant s 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s 65DAA mandates it or because either is a proposal of the parties or looms as a potential order.
·Findings relevant to s 65DAA, if applicable, can, and often more appropriately should, be made as part of the s 60CC exercise, because, although requiring a specific process, any s 65DAA considerations are founded ultimately in findings as to best interests.
·Findings necessary to underpin an ultimate finding of “reasonable practicability” (s 65DAA(5)) can be, and often more appropriately are, conducted as part of the s 60CC exercise. Any specificity inherent in those s 65DAA(5) factors which do not overlap with s 60CC considerations can often readily be accommodated within the s 60CC exercise (s 60CC(3)(m)). As best interests governs the s 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to s 65DAA(5) within the overall assessment of best interests. Of course, those findings, must be applied as the s 65DAA process requires.
·The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.
Further, it is necessary in my view to bear in mind what was said by Gummow & Callinan JJ in U and U ((2002) 29 FamLR 74 @ para 92), which is something, it might be said, emerging as much from the fact of parenthood as from the Act: “…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred”.
The tyranny of this country’s (and this State’s) distances has frequently been commented upon. Intact families dealing with the exigencies of raising children – particularly those living outside the major population centres - will frequently undertake a drive of many hours for the purposes of facilitating sporting, cultural and educational opportunities for their children. Such sacrifices are the stuff of parenting.
The Best Interests of L and A
The Children’s Parents
The mother represented herself at all stages in the proceedings and prepared her own material.
I am aware that this can create for parties the potential for disadvantage. (See eg Neil v Nott (1994) 68 ALJR 509.) However, a corollary of the concern about self-representation is that it can also bring with it the opportunity for a court to see and hear things (albeit in the “artificial” setting of the courtroom) that otherwise might be shrouded in the expertise of that party’s representation (see eg the comments by Justice Wilson (UK) in his 2002 Atkins Lecture, “The Misnomer of Family Law”).
In the context of her concerns about B (to which reference will be shortly made) the mother put to the father in cross-examination that she “became hypervigilant”. The father readily agreed. I, too, regard the mother as hypervigilant. An example is the installation of infrared monitors because “the mother couldn’t trust [B]”. B, it should be noted, was, at separation, aged about 11.
The mother gave me the impression of being a highly stressed woman whose work in the area of child sexual abuse has impacted upon her significantly. The father indicated in evidence that the mother had instigated a move to Brisbane so that she could work in a different area and avoid the sort of work just referred to.
I consider the mother to be psychologically somewhat fragile. I consider that her fragility has informed her post-separation decisions. Separation itself is, of course, a significant stressor for both parties to a relationship – it is rare that either party is at their best. Leading up to separation, there were a number of profound stressors in the parties’ lives which, by reason of the father’s absence for periods of time at work, the mother bore the brunt. Those stressors include B (a child with significant behavioural issues) arriving suddenly and unexpectedly into her family unit when she had tiny children; the profound stress of working in the ugly and difficult area of child sexual abuse; the undertaking of majority parenting for the children in the post-separation period. She maintained, nevertheless, employment in her field.
The father appeared to me to be a man somewhat detached from his emotions – or, at least, the expression of them. He presented to me very much as Ms D records him presenting to her: “… as an uncomplicated man who generally offered vague, minimal responses…”.
I consider that he was both genuine in his expressed love for his children and his desire to co-parent them as a meaningful and regular part of his life. He is also a man battling, understandably, with very significant difficulties in the (now sole) parenting of B as well as managing a full time job.
I consider that, for all of those things, he was very much focussed on the “unfairness” of the mother’s position. As he appeared to see it, he and the mother had left their lives (including, in his case, a well paid job) in the Y region to accommodate the mother’s stress associated with her employment and rearranged their lives in Brisbane only for him to see, upon the final breakdown of the relationship, the mother seeking to return to the place from which they had relatively recently relocated. Those same factors have also resulted in him being a single parent for B.
Perhaps as a reflection of the historical parenting role played by him, I had the impression that he lacked some insight into the position of the children and how their needs might be associated with their best interests. Ms D reports of him:
[The father] expressed a desire for the status quo to be maintained with the addition of each Wednesday to allow him to participate in [the children’s] sporting activities. In simple terms, [the father] wishes to spend time with his children on a regular basis, thus his opposition to [the mother’s] proposal. He held no concerns of [the mother’s] care of [the children] and was not opposed to her being the children’s primary carer. [The father] continually reiterated that he simply wants to spend time with the children. He did however report that if [the mother] continues to withhold the children from him, he will consider amending his position and seek to become the children’s primary carer.
Ms D goes on to say:
[The father] found it difficult to ponder the parenting arrangement in the event that [the children] relocated. He indicated that he would like to spend time with the children every fortnight and that the children could fly to see him. When it was put to him that this may not be practical, he reported that he would want every school holiday. [The father] is not in favour of [B] and [the mother] maintaining a relationship as he believes that [the mother] has ill-treated [B].
Whilst parenting orders in respect of B are not in issue (although, at one point at least, the mother appeared to suggest that injunctive orders might apply to her or in respect of her) it will be appreciated that B’s position within the family, the potential for her to have a relationship with her siblings, and the attitudes and parental responsibilities exhibited by each of the parties generally emanating from B’s difficulties, form an important part of the background to a decision about the best interests of L and A.
It is abundantly clear on the evidence that the children enjoy a close relationship with their paternal grandparents.
I consider that each is an entirely appropriate carer motivated by an understandable desire to maximise their time with their grandchildren who they clearly love dearly.
The Parties’ Proposals and Assertions
The mother has made it clear that she wishes to maintain her role of being the predominant caregiver to L and A. That finds reflection in a number of her proposals and is summarised by her willingness to contemplate a restriction on her being able to live where she wishes if it means maintaining that role.
Reference to the father’s proposal - when account is taken of that attitude - makes it plain that his proposal is not, in fact, a proposal that the children live with him (and their sister) at all. It is a proposal that the children live with their mother and spend regular time with him.
Upon proper analysis, the father does not seek to make out a case that the children should live with him (as distinct from spending significant and substantial time with him). A proposal that the children live with him is put forward only in circumstances where the mother lives within a geographical area (chosen arbitrarily by him).
The father’s material does not make out a case consistent with the statutory Considerations, Objects and Principles that the children should receive the majority of their care giving from him. He does not make out a case in any material filed by him, nor in any argument advanced on his behalf, that such a position has advantages for the children which outweigh the separation of them from the person who, on any view of the evidence, has been the predominant caregiver for them for the majority of their lives and who seeks to remain as such.
Underlining the parents’ own assessment of the appropriateness of their co-parenting relationship, Ms D gave evidence in the witness box that she had considerable concerns about the father as a full-time carer for three children. Ms D pointed to the fact that B was a child with particular difficulties and that “looking after three children is different to looking after one”. In that respect, Ms D emphasised the fact that as an effective full-time carer of the children “the father is an unknown” and that the children’s “primary attachment was to their mother”.
It can be seen, then, that, by reference to the circumstances and co-nurturing arrangements of this family (including, importantly, B’s circumstances) as they existed both pre and post-separation, the father contends that the children’s best interests are met by them continuing to receive the majority of their day to day care-giving from their mother, but in circumstances where they spend with him specific periods of regular time.
In recognition of those facts, and those roles, he seeks orders restricting the mother’s movement with the children so that he can maintain his (important) historical role.
It is of significance to note that, despite joining with the mother in seeking an order for equal shared parental responsibility, the father does not contend that the best interests of the children are met by an order for equal time. In that respect he and the mother are agreed.
The mother also agrees that the children should receive the majority of their day to day care-giving from her. She contends, though, that the children’s best interests can be met if she lives in Y and the children spend the time with their father specified by her in those circumstances. Alternatively, she contends, in effect, that living on the Sunshine Coast would provide a greater opportunity, in practical terms, for regular time to occur and such time as could occur in that circumstance, is in the children’s best interests.
It should be observed that the mother (who drew her own material) predicated her orders for time by seeking an order that “… the father interacts with and communicates with the children of the marriage on agreement and implements a safety plan that is acceptable to all parties including the court to ensure the biological children’s safety”. To the best I could ascertain, this “order” is linked to the mother’s concerns about risk presented to the children by B and what she alleges to be the father’s parental irresponsibility – each of which issues I will return to in detail below.
The parameters thus drawn by the parties have, of course, the potential to be very significant for the tasks mandated for this court by the Act. I assess each of these parties to be essentially decent loving parents who genuinely desire what is best for their children. That their respective legitimate desires include them living at a place of their choosing, and them arranging their post-separation lives independent of the other, does not derogate from that fact.
What Time Can Occur?
(a) Y
In the event that the mother lives in Y with the children, she proposes that the father spend time with the children “for all gazetted school holidays” save for the Christmas holidays which would be spent equally. She also proposes (in a manner diagrammatically set out in a document that became Exhibit W1 in the proceedings) fifteen weekends that the father could spend in Y, designed to coincide, wherever possible, with public holidays or pupil-free days.
As a result, if the father was willing and able to avail himself of all of that time, he would spend five four-night weekends with the children and eight two-night weekends, as well as the holiday periods earlier referred to.
Whilst the mother at no stage suggested that time the father might spend with the children should be calculated in any sort of “mathematical” way, it might be observed that the proposal outlined by her would provide the father, in total, with 113 nights during the course of the year that he could spend with the children.
The father indicated in oral evidence, when pushed, that he would be able to travel to Y on only four occasions per year. He says, understandably, that on those occasions when he visited he would seek to take B with him. He also says, and I agree, that, for weekend visits, air travel is the only practical means of facilitating time. There would additionally be the need for accommodation costs and the like.
The father’s Financial Statement reveals an excess of income over expenditure (the latter of which includes no payment of child support) of about $45,000 per year. Of course, maintenance not being an issue, the day to day expenditure of the father is not included. Nevertheless, I find that the father has the financial capacity, at least, to travel to Y on significantly more than four occasions per year (even accepting, as I do, that a significant financial impost would be incurred on each occasion). I accept, though, that the father could not travel to Y on weekends as frequently as what the mother proposes.
The mother (as a result, I suspect, of hearing the questioning of the husband about some of the matters just referred to) indicated she was prepared to fund the children (and while the children were too young to travel unaccompanied, to fund herself and the children) travelling to Brisbane on four weekend occasions per year.
B is a child with an extraordinarily difficult past. Much attention was directed at the trial to a “diagnosis” of her special needs. It was, in my view, unnecessary. It was sufficient merely to outline the profoundly sad and troubled childhood she’d had - which was, in essence, common ground and which need not be repeated here – to acknowledge that she is a child who has special needs and whose behaviour causes difficulties to her carers. Regular weekend airline travel for her is likely to create particular difficulties.
If time was exercised in Y, time would be spent by the father and B in a “non-home” environment during weekend time. The children would have limited opportunities to experience, on a regular basis, a “home base” created for them by their father. By dint of those matters, the capacity for the children to have stability and predictability about the regular role of the father in their lives is somewhat curtailed.
Financial capacity is but one aspect of an ultimate finding as to whether time can reasonably be accommodated by the father and the children.
I strongly suspect that, by reason of a combination of the matters just referred to, regular time between the children and their father (and time between the children and their sister) is, over time, unlikely to occur with frequency or real regularity. Specifically, commendable though the attempts by the mother to maximise weekend time are, I think it highly unlikely that weekend time would occur with the regularity or frequency contemplated by Exhibit W1.
Each and all of the matters just described must be seen against the fundamentally important fact that the children are yet very young and, consequentially, at an early stage in their development and the development of their relationship with their father.
(b) Sunshine Coast
The practicalities of facilitating weekend time between the southernmost outskirts of Brisbane and the Sunshine Coast, situated to Brisbane’s north, are also not without difficulty. But, in my view, they are by no means of the same magnitude as those involving time between Brisbane and Y.
No cogent evidence is offered as to why alternate weekend time cannot be effected between the parents – even if the father chooses not to move from his current residence. In saying that, I recognise some difficulties – and some expense – is involved. But, I can see no good reason why each cannot be accommodated in the children’s best interests by the exercise of the sort of selflessness that loving parents undertake regularly in all parts of this country and State.
However, if a geographical separation existed between Brisbane’s southernmost outskirts and the Sunshine Coast, it would make Wednesday after-school time each week a practical impossibility – at least on a weekly basis.
(c) Brisbane
Similar difficulties in respect of Wednesday time might be anticipated even if the mother was to continue to live in the Brisbane area. For example, if the mother was to live on Brisbane’s northern outskirts and the father on Brisbane’s southern outskirts, considerable practical difficulties would attend Wednesday afternoon time.
(d) Summary
Orders consistent with the mother’s position that she live in Y would, then, see alternate weekend time not occurring and, as I find, weekend time occurring, in all probability, with increasing irregularity and relative infrequency.
Orders consistent with the mother’s position that she live on the Sunshine Coast would see alternate weekend occurring (albeit with some practical difficulties and inconvenience) but Wednesday time each week occurring very infrequently if at all.
Orders broadly consistent with the father’s position, which would see alternate weekend and weekly Wednesday time occurring, would require the mother to live within a reasonable distance of the father.
What Time Should Occur?
It is necessary, then, to consider what orders for time are consistent with the children’s best interests.
As earlier observed, the Act prescribes but one method for determining best interests, namely a proper consideration of the matters prescribed in s 60CC within the rubric of the Objects and Principles.
I propose to summarise my findings about A and L’s best interests and then to discuss, by reference to the matters mandated by the Act, the path to those findings.
Best Interests – Summary of Findings
The children have received the majority of their day to day care from their mother both pre and post-separation. Neither party effectively contends for orders altering that position.
In any event, altering that position is contrary to the children’s best interests and offers no benefits to them and many detriments.
The children’s primary emotional attachment is to their mother.
The children enjoy a close attachment to their father and their paternal grandparents.
Given their ages and consequent stages of development, the children need to spend regular and frequent time with their father and to also spend regular time with their paternal grandparents.
The parties have themselves, by reference to the particular circumstances pertaining to their family and their co-parenting arrangements, both pre and post-separation, indicated that it is in the children’s best interests for them to receive the bulk of their day to day care from their mother and to see their father (and grandparents) regularly.
The evidence supports arrangements those broad parameters being in their best interests.
For his part, the father has determined, by reference to his particular circumstances (which include, importantly, his full-time care of B) and also by reference to the co-parenting of the children, both pre and post-separation, that alternate weekend time and weekly Wednesday time provides for the children a meaningful relationship with him.
Spending time with B does not represent an unacceptable risk to the children.
Any such risk as might exist arising from B’s particular needs and her profoundly troubled past and consequent challenging behaviour, can be met by the proper observance of, and adherence to, appropriate parental responsibilities.
The father and his parents are each likely to exhibit same. Further protection is afforded by the “spotlight being on” their care in that respect and by the orders sought by the father himself.
The father does not present a risk to the children by reason of lack of parental responsibility as alleged by the mother.
To the extent that any such risk might be reasonably perceived to exist by the mother, the orders by him and the care given by him (and his parents) during those times meet any such perceived or alleged risk.
The mother is (and, I consider, always has been) a highly anxious, hypervigilant parent and will likely remain so into the foreseeable future.
The mother’s anxiety and hypervigilance affects her capacity to nurture optimally the children.
It is highly likely that her anxiety and hypervigilance will be assisted by being able to establish a post-separation life of her choosing.
If the mother, though, exercised a choice to establish a post-separation life in Y, there is a likelihood that the exigencies of the father’s life (including the full-time care of B), the practical difficulties inherent in co-parenting where a significant geographic distance separates the children’s co-nurturers, and the financial ramifications of weekend time, will result in the children not having the opportunity to spend regular and frequent time with their father.
Further, those same factors are likely to lead, over time, to a diminution in the frequency of such time.
It is beneficial for the children, given their ages and consequent stages of development, to spend regular and frequent time with their father.
The opportunity for the children to find stability with their primary carer in a place which they can identify as her and their home, represents a significant benefit for them and is vital to their best interests.
That this can occur in circumstances where the mother’s anxiety is (to the extent possible via court orders) reduced, is likely to be of benefit to the children; the children will likely benefit from being in the predominant care of a mother who is more relaxed and less anxious in the event that she is able to establish a post-separation life of her choosing.
It is important for the children to establish a stable place which they can identify as their home when in their father’s care, and to feel comfortable there - as Ms D put it, to “establish a place in their father’s world”. This represents a benefit to them and is important at their particular ages and consequent stages of development.
The children’s paternal grandparents are an important part of that world and their future development.
If the mother established a residence in the Sunshine Coast area in accordance with an alternative proposal put forward by her, although some practical difficulties would likely attend fortnightly time, they are not insuperable.
In that event, the practical difficulties inherent in the children spending each Wednesday with their father would likely see that not occur – or, at least, not occur weekly. That time, might, though, occur periodically – for example, by the father visiting the children on the Sunshine Coast.
If the mother was to establish a home for herself and the children at a place on the Sunshine Coast – and, therefore, significantly geographically closer to the father than Y – there is a greater opportunity for, and likelihood of, each of the parents facilitating and encouraging a close and continuing relationship between the children and each of their parents. Specifically, there is a greater opportunity for, and likelihood of, the mother, as the children’s primary carer, doing so.
Wherever the children live with the mother, there will be the opportunity for them to communicate regularly with their father via telephone, e-mail and the internet and there is no reason why that should not occur as often as he might reasonably instigate.
It is likely that, if the father was to see the children each alternate weekend, then, by reason of the paternal grandparent’s relationship with the father and B, and their geographical proximity to the father, they would see the children regularly when they were in the father’s care.
That, too, would occur on many occasions in or around the grandparent’s “home base” which is a place of familiarity and comfort to the children.
There are disadvantages to the children in the father not being able to spend time with them each Wednesday after school. In particular, the children would, in all likelihood, not have the opportunity for the father to participate regularly in their day to day lives during that time, his time with them would be all weekend or holiday time, and the nature of the relationship might be seen to be curtailed as a result.
A court-ordered requirement for that Wednesday time to occur would, though, require the children’s conceded primary carer to so order her post-separation life so as to accommodate that time. That would occur in circumstances where there is no evidence suggesting that the father is willing or able to move from his current location and where no evidence offered by him addresses the possibility of visits by him (even on an ad hoc basis) to the children’s location.
The resulting effective curtailment of the mother’s ability to establish a home in a place of her choosing and her perception of the “control” that the father (who proposes no move for himself) has over her life as a result, is likely to have an impact on her anxiety and, thus, parenting.
That is likely too, to have an impact on the mother’s attitude, and her capacity, and perhaps willingness, to promote time between the children and the father and his parents.
Further, it is likely to have an impact on the prospects of what each parent should each ultimately seek, namely a co-operative arrangement consistent with their children’s proper needs as they grow and develop occurring without the need for those arrangements to be underpinned by court orders or sanctions. The corollary is that the mooted curtailment is more likely to lead to future proceedings.
Best Interests – Issues, Considerations and Relationships
In her first Family Report, Ms D said:
In the spirit of simplicity, this matter can be unimpeded of its complications if it remains primarily upon [the children] and their right to have a meaningful relationship with both of their parents and their sister; and, their safety is considered paramount and is prioritised ahead of the aforementioned.
That passage might be seen as reflective of the Act’s Primary Considerations.
Meaningful Relationship
In McCue v Costa [2009] FamCAFC 92, the Full Court approved a statement of Bennett J in G v C [2006] FamCA 994 to the effect that the notion of “meaningful relationship” as used in s 60CC required a court to “evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.
The Full Court held that “the court should consider and weigh the evidence at the date of the hearing to determine how, if it is in the child’s best interest, orders can be framed to ensure the particular child has a meaningful relationship with both parents …” (at par 118).
That accepted, it also needs to be borne in mind that “… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” (per Kay J, Godfrey v Sanders [2007] FamCA 102).
When parents, by the institution of parenting proceedings, abdicate to a court the responsibility for making decisions about their children otherwise properly the preserve of parents working co-operatively together, the court’s decision about best interests takes precedence over the decision of one or other (or both) parents. In so-called “relocation cases” that responsibility can extend to formulating proposals different to those of the parents consistent with a court’s findings about best interests (See U and U, above).
But, when (as here) a court assesses parties to be essentially decent, loving parents struggling, as all parents must, to make decisions which they consider to be in their children’s best interests and struggling, as all parents must, to predominate their children’s needs above their own, the court is in an invidious position. The court is presuming, by dint of mandatory statutory duties and responsibilities, to interfere, to one degree or another, with what can be seen to be a basic right: the right of a parent to parent his or her child in the way they best think fit.
Yet, when parents, through their conflict, or the nature and extent of assertions one makes against the other, enliven those duties and responsibilities, views and decisions other than their own may intervene. In that situation, rights and considerations relevant to a determination of best interests enshrined in the Act predominate. But, that by no means renders irrelevant what essentially decent and loving parents contend are arrangements that are in the best interests of their own children.
While a family is intact, loving and decent parents make arrangements that best suit the needs of their children in the particular circumstances – including social, cultural and economic circumstances - of the family. Post-separation, even where there is parental conflict, the parties’ proposals can often be an important reflection of those circumstances. Those circumstances, and the parties contentions as reflected in their proposals, have the potential to say much about matters directly relevant to the Act’s Objects and Principles and Considerations. So much is recognised in the Act itself (see s .60CC(4) and (4A)). That situation can be seen reflected in the facts of this case.
The respective assessments of each of these parents of their children’s best interests – evident in their proposals and their material - is, it seems to me, an important consideration in arriving at a decision about the best interests of their children. (See ss 60CC(3)(i); (m) and (4); (4A)).
The parent’s own assessments of the children’s best interests might be seen to be particularly important by reference to the first of the Act’s two Primary Considerations. The parents here have come to their own conclusions about what constitutes a meaningful relationship (that is, a relationship which is “important, significant and valuable” - see Mazorski v Allbright [2007] Fam CA 520 per Brown J; Mulvany and Lane [2009] FamCA 76 per May & Thackray JJ).
Of course, whilst this consideration “should be accorded particular importance in determining what order will best promote the interests of the child” and is “of the utmost importance … in determining [that] outcome…” it is necessary to “…take into account all of the relevant considerations identified in the legislation, giving each of them such weight as … thought appropriate…”. (Marsden and Winch (No3) [2007] Fam CA 1364 per Warnick & Thackray JJ @ par 77).
The evidence in my view supports the broad arrangements arrived at between the parents with the predominant care for the children being undertaken by the mother and them seeing their father on a regular basis, being in the children’s best interests.
The mother does not now pursue parenting orders in respect of B. Her previous position in this respect will be referred to when assessing the second of the primary considerations. In this context, however, it is important to observe that, to my mind, the opportunity for the children to maximise their relationship with their father, in a way that is most meaningful to them, is likely to be enhanced if the father is left to deal predominantly with B’s difficulties in their absence and for the relationship of the children with him (and with B) to have parameters broadly in accordance with what the parties contend.
B; the Issue of Risk and the Responsibilities of Parenthood
The issue of the alleged risk presented to the children by their sister B loomed large at the hearing. Significant attention was focussed upon B’s alleged earlier behaviours.
In a Notice of Child Abuse filed on 19 August 2008, the mother refers to B as an “alleged perpetrator” of sexual abuse. That Notice of Child Abuse says:
“[B] aged (9 years) began having sexual dreams about myself and [L] who was (2 years) at the time)…” “… in 2006 [B] made sexual abuse disclosures … (that a partner of her deceased mother, pushed his erect penis against her bottom.)”
It was never clear to me what the “sexual dreams” were. It seems clear, however, that the major catalyst for the mother’s concerns about B’s behaviour toward the children occurred when B (then aged about 9) was carrying L (then aged about 3) “into her bedroom” at which time “[L] was screaming”. The following morning the mother “questioned [B]”. There is no evidence of the details of that conversation, but the mother states that B said during it, “I wasn’t going to sex him up”.
The mother goes on to say that she became:
… Alarmed at her comments and became hyper sensitive to all her behaviour. I would remain awake each night and alert to all her responses and action. I would sleep with [the children] and would constantly not leave them alone.
I installed an infrared system and baby monitor. I was struggling to ensure that [B’s] high needs were met at the same time as protecting my two younger children from her disturbed behaviour …
Ms D described the mother’s reactions as being at the extreme end of the range. I agree. The same might be said, in my view, of the mother’s sister who, having, it seems, been given an account (by the mother) of the incident just described, described B (a then nine-year-old child) as a “sexual predator”.
It should also be mentioned that, when Ms D took these issues up with B, she denied any incidents of a sexually improper nature and denied making the comment earlier referred to, effecting to not know what it meant.
The mother also alleges family violence as against the father. Ms D records the mother’s assertions in this respect as follows:
31. [The mother] described her relationship with [the father] as domestically violent characterised by controlling behaviour and all forms of abuse. She reported that she grew accustomed to [the father’s] behaviour and it was not until she sought therapeutic support that she came to realise the abusive nature of their relationship. [The mother] alleges that [the father] “electrocuted” her with mower leads and that he would sleep with a knife under the bed which on one occasion she woke to find him on top of her threatening her with the knife. [The mother] advised that the Domestic Violence Order came about as result of an incident when [the father] made unwanted sexual moves towards her and she pushed him away with her knee. [The father] punched her in the arm. She also alleged that [the father] used to call her “slut and whore”.
32[The mother] is of the opinion that [the father] has an anger problem which is often triggered by alcohol and [B]. She also alleges that marijuana contributes to the violence. [The mother] reported that [the father] allegedly smoked marijuana every day, “morning, noon and night” when she first met him …
Violence is denied by the father. Again, reference to the report of Ms D is convenient:
[The father] acknowledged that there was a current Domestic Violence Order in place. He reported that it came about as a result of an incident when he and [the mother] were having a few drinks and she “just turned around and kneed me” which he responded to by punching her in the knee. [The father] could not account for the events that preceded this incident. He reported that the Police attended his home a few days later and when the matter went before the Court, [the mother] went on a cruise with [the children]. [The father] advised that he and [the mother] did attempt to resume their relationship and that he ceased his counter application for a Domestic Violence Order in an attempt to save his marriage. He reported that [the mother] also attempted to remove her Domestic Violence Order but as she was not the applicant it was not possible. [The father] advised [the mother] ended the relationship not long afterwards.
The allegations of both risk emanating from B and of family violence must be seen in the context of a number of matters which I regard as very important in assessing the impact of those allegations on orders that best meet the best interests of these children.
Whilst it appeared at trial that the mother continues to assert that B represents a danger to the safety of her children, it needs to be observed that three letters written by solicitors acting for the mother in December 2007 all make clear the mother’s then proposal was that all three children (ie including B) should reside with her in Y. In the witness box, the mother indicated that, despite these proposals, she maintained her high level of concern about B but that “it was a liveable concern”.
I consider that the mother is, indeed, hypervigilant. I consider that the mother has gone to quite extreme lengths with respect to her concerns about the potential for inter-sibling sexual abuse and that some of her actions and statements in that respect verge on the hysterical. In that, she would appear to be supported by her sister. I am, to say the least, surprised that her sister would (apparently on the basis of hearsay statements from the mother with the content earlier described) refer to a young child as a “sexual predator”.
I consider that the mother’s view of these matters – and, indeed, her view of the “risk” posed generally to the children by B - has (perhaps understandably) been severely tainted by what would, very clearly, be extremely stressful and distressing work in the area of child sexual abuse. It may not be surprising that this might result in hypervigilance or the perception of risk just described, but each is taken into account by me when attempting to objectively assess the nature or extent of any risk posed by B.
B is clearly a very troubled child with a profoundly sad background. Clearly she presents behavioural challenges to the father (and, to a lesser extent, the paternal grandparents). I have not the slightest doubt that B coming into the lives of these parents, and what were then very young children, presented challenges of dramatic proportions including behaviours that were extremely difficult to deal with.
Of course, the mother had to, as it were, stand in the place of a mother for B whilst at the same time being the primary carer for two very young children, including during times when the father was absent from home working. The stresses should not be, and are not by me, underestimated.
I strongly suspect that the mother’s work in the area of child abuse, together with the significant stressors just described and what I assess to be an anxious personality, have all contributed to causing her to have dramatically heightened concerns about her own children and any risk presented to them through behaviour of that sort.
I have attempted to give proper consideration to all of those matters when assessing the mother’s evidence. These factors, in combination with her admitted hypervigilance and her observable anxiety cause me to have concerns about the reliability of her evidence. Her recitation of these matters seemed to me to be highly redolent of exaggeration, or, perhaps, of overvalued attributions to matters to which others would not attach such significance.
It goes without saying that I regard the issue of family violence as extremely important. However, that important issue, too, needs to be seen in the context of the mother’s ready acknowledgement that the children should spend regular and frequent time with their father (albeit, that, as I am aware, she seeks a “safety plan”); the further important context that no allegations of violence are made in respect of behaviour towards the children, and the mother’s apparent adamant belief that the father is a good father.
The reservations expressed about the mother’s evidence apply, equally, to the issue of family violence.
I assess that the father and paternal grandparents (who, it is likely, will spend significant periods of time with the children when they are with the father) are essentially all responsible adults who care deeply about the children and are each properly motivated to ensure the safety and happiness of them.
My confidence in that respect, is strengthened by the evidence of Ms D who opines:
I am aware that [the mother] has doubts about [the father’s] willingness and ability to act protectively and that this also extended to the paternal grandparents. I am less doubtful about [the father] and his parent’s protective abilities, as the issue has become significantly highlighted, so much so, that [the father] and the paternal grandparents have likely become increasingly vigilant to protect [B] from what they perceive as being false allegations. Similarly, they will be aware that the spotlight will be on them with respect to their abilities to ensure the safety of [the children] and that they will be held accountable if harm occurs. As it stands [the children] have not made any disclosures of harm as a result of being in their father’s care, therefore all parties should be reassured of [the father’s] ability to provide adequate supervision.
It is interesting to observe that, amidst the allegations made by the mother is a statement, earlier alluded to, contained in Ms D’s report that “[The mother] was adamant that [the father] is a good father.” That is a position broadly consistent with her stated position before me. So, too, the mother was anxious to point out that she regarded the paternal grandparents as loving carers and important to the children.
I consider it likely that B will at times display behaviours that will be challenging and may cause discomfort to the children. But, I do not consider that they are at risk of sexual harm from her. I do not consider that B poses an unacceptable risk of any harm to the children.
Any such risk as B might pose (which I consider to be small - a view shared by Ms D) must also be measured against the time that B will spend with the children and the circumstances in which that time will be spent. I do not consider that any such risk of harm is of a nature that can’t – and won’t – be met by the appropriate application of parental diligence and concern – each of which I consider will be put into practice by the father and by his parents during periods of time.
A closer examination of the mother’s assertions about the father reveal, in my view, concerns more about the father’s asserted irresponsibility toward parenthood and alleged impaired capacity to care for the children than about family violence per se. Many of the mother’s concerns about the former appear grounded in assertions made about the father’s use of marijuana and alcohol.
In this respect Ms D records:
[The Father] was reluctant to discuss the allegations of his marijuana use as he feared “incriminating myself”. He advised that he “had a go at it…one off occasion”. [The Father] later elaborated that he smoked marijuana occasionally throughout his apprenticeship years but was not smoking when he commenced a relationship with [the Mother] or throughout their relationship, “[…]…it wouldn’t look good…very unethical”. [The Father] then amended his response “smoked once a year…on a golf day…she knew when I smoked as it was a golf day”. [The Father] is of the opinion that [the Mother] has blown his marijuana use out of proportion. He advised that he underwent random urine screens whilst employed with […] and has only had one screen return positive for Codine which he was prescribed following the removal of his wisdom teeth.
[The Father] reported that he drank alcohol in moderation, generally “three or four beers a night”. He indicated that his behaviour is not violent or abusive as a result, instead he “mellows out”.
I do not propose to make specific findings about the father’s use (or abuse) of alcohol or marijuana. In respect of the latter, it is sufficient to say that the father asserts, and I accept, that during his employment in Central Queensland over many years, it was mandatory for him to undergo regular drug testing as a necessary condition of his employment. The mother does not allege that he was otherwise than in full employment during that time. Since coming to Brisbane, the (undisputed) evidence is that he retains full time remunerative employment.
In what might also conveniently be seen as falling within the context of the responsibilities of parenthood, reference, critical of the mother, was made to the Mother’s relationship with a Mr W.
At the commencement of 2009, the Mother became acquainted with Mr W through an online dating service. They spoke by telephone and email over the course of a two or three week period and then met in person. Mr W lives in Y. After meeting, Mr W would spend time in Brisbane on weekends on either a weekly or fortnightly basis. The mother had spent time with Mr W in Y with the children on two occasions at the time of Ms D’s April 2009 Report.
Mr W is a man who had recently separated from the mother of his three children aged 18, 15 and 12. The children first met Mr W in February 2009. By the time she saw Ms D, she told Ms D that she “simply fell in love with him”. In that April 2009 report, Ms D recorded:-
[The Mother] reported that she and [Mr W] had spoken about the future and had made plans together. It is her preferred option to relocate to [Y] and begin a life with [Mr W]. She advocates that this is better for [Mr W] due to his work and family commitments…[The Mother] indicated that if permitted to relocate to [Y], she anticipates a 6 month period of transition in which she and the children will live in a unit and she make arrangements for the children’s schooling. However, she foresees that she and [Mr W] will live together not long afterwards.
By the time of trial, some 4 months later, the relationship with Mr W was no longer in existence and the Mother’s future plans did not involve him.
Whilst the High Court has said that decisions in parenting cases frequently involve judgments about values as much as facts, it is nevertheless troubling to make findings about “the responsibilities of parenthood” when they involve life choices by parties struggling to deal with the breakdown of a relationship and the resulting co-parenting of young children and transition to a post-separation life. Separation brings with it an understandable desire for each party to pursue the latter.
Of course, circumstances exist where it can be plainly said that this can involve blatantly putting self interest ahead of parental responsibility. But, I cannot see that the Mother exhibited any such irresponsibility towards her parental duties in and about the pursuit of the relationship with Mr W.
In a similar vein, an earlier suggestion by the mother that she might move to Gladstone with the children, and the very recent suggestion of a move to the Sunshine Coast is said to be indicative of either irresponsibility on her part or, alternatively, an indication of an unwillingness to properly promote a relationship between the children and their father.
The suggestion was that the mother was seeking to move to a place remote from Brisbane so as to limit the time that the children could spend with their father, or the time in which the father might have an involvement in their lives. In that respect, it should be observed that the mother’s (alternative) proposal to move to the Sunshine Coast was, in real terms, one that was formulated clearly only as the trial unfolded.
I have little doubt that the mother feels that she needs to “get away” in order to establish a place for herself and the children. Equally, I consider that she sees the father and his parents as impeding her ability to find peace of mind in a post-separation life for herself and the children.
I do not consider, however, that the mother is motivated by a desire to remove the father (or his parents) from the children’s lives. I consider that her plans are very much the product of a highly anxious person seeking to establish a place for herself and the children, in which she considers (rightly or wrongly) that stability and peace of mind will result. Nor do I consider that the father or his parents are motivated by a desire to “control” the mother or her movements as distinct from seeking to maximise their time with the children within their particular circumstances (although I accept the mother might feel “controlled” in that sense).
As I said during the course of the hearing, the mother’s desire in this respect is entirely appropriate, just as it is entirely appropriate that the father should seek to find stability and peace of mind, and to seek what he considers to be appropriate caring arrangements, in his current environment.
But the corollary is also true. It should no more be assumed that the father cannot move than it should be assumed that the mother should show compelling reasons why she should go. The court ought no more compel a party to move as to compel a party to stay. It is the collision between legitimate, but competing, desires that makes so-called relocation cases difficult not only for courts, but, importantly, also for children.
Views, Nature of Relationship and Capacity
The children here are clearly too young to express any views, even if, as I consider is the case, the Act’s requirement to examine “views” is considerably broader than merely ascertaining what choice a child might make about a particular issue.
There can be little doubt (and the father, in effect, accepts) that the children’s primary attachment is with their mother. She has been their primary carer for all of their lives.
The allocation of the expression “primary carer” is not to allocate to the father a role of secondary importance in the children’s lives, but rather to acknowledge both the ages and stages of development of the children, and the fact that, by reason of the manner in which the parties organised their domestic lives and their co-parenting relationship during the time they were together, the mother adopted the primary role. In this case that was exacerbated by the fact that the father’s employment in the mines meant he was away from home for periods of time.
Whilst each makes claims against the other, each parent appeared to concede (genuinely as I find) that the other was “a good parent”. For example, the mother conceded as much when interviewed by the family consultant, Ms D.
Ms D says:
It is evident from my observations that [the children] have a strong healthy attachment to both of their parents and sister, [B]. Maintaining the strength and quality of this attachment is going to require regular and frequent time together. Long periods of absence are not conducive to preserving meaningful relationships, especially for children of [this] age. The adage “out of sight out of mind” is an accurate description of the impact of periods of long separation can have upon young children. It is therefore my professional opinion that the relocation of [the children] to [Y] does not foster their relationship with their father and sibling.
Ms D was of the view, perhaps ironically, that such a move may also impact upon the nature of the relationship between the children and their mother and, specifically, their attachment to her. Ms D opines:
[The mother] is proposing that the children spend a significant quality (sic) of time away from her primary carer over the holiday period with their father to compensate for the time he loses throughout the year. Whilst, this is a generous offer, it may generate feelings of anxiety and insecurity within [the children]. This may increase their clinginess to [the mother] and disrupt their secure attachment to her.
In a similar respect, Ms D was of the view that the mother being “in close proximity if required” to provide assurance to the children (in person) if needed, would be better able to occur if she “remained local” to them. I will return to this aspect below.
The mother herself suggests that her capacity to parent, and in particular, her lack of support in Brisbane or South East Queensland, is a rationale for her desiring a relocation to Y. In that respect, Ms D says in her December 2008 report:
[The mother’s] rationale as to why she desires a relocation to [Y] is legitimate, albeit, not completely focussed upon the children’s best interests. I share [the mother’s] sentiments that if she is well supported as the children’s primary carer, then this will bear positive consequences for [the children]. I also recognise that being a single working parent is a hard task, however, [the mother’s] parenting capacity is not going to be significantly impaired if she remains local, nor will it be significantly improved if she relocates to [Y].
As a result of orders made during the course of the hearing by me, the parties’ financial affairs remain to yet be resolved or decided upon by the court. The parties’ post-separation lives remain, then, in a state of transition. Each, understandably, wishes to re-establish themselves as soon as possible post-separation and to commence their post-separation lives.
I consider that the mother would undoubtedly be happier if she was able to relocate with the children to Y. A more difficult question is whether either the rejection of that desire, or, more acutely, orders for time that would effectively require close geographical proximity to the father, would impact on the mother’s parenting.
I do not disagree with the opinions of Ms D expressed in the concluding part of the paragraph just quoted in so far as they apply to a move to Y. I do, however, disagree with that opinion in so far as it applies “if [the mother] remains local”.
My strong impression is that the mother would see an effective restriction to a close geographic locality as the father (and probably his parents) “controlling her” and her life and I consider this would impact upon her psychologically and, probably, significantly. I don’t suggest that, as a result, the mother’s parenting would become “bad” or “inadequate” or any such. Rather, I consider that if the mother can commence to establish for herself a life at a place of her choosing (even if be, as it were, a “compromise” such as the Sunshine Coast), she is likely to be much more relaxed and happy and to bring those qualities to her parenting to the benefit of the children. I am confident that the re-establishment of the mother in a post-separation life with the children will be a significant factor in alleviating her obvious stress.
I have already indicated that I consider there are significant practical difficulties in the father exercising regular and frequent time with the children were they to reside with the mother in Y. In those circumstances, the grandparents seek to have orders made in their favour that would see them spending regular periods of time with the children. For her part, the mother says that she would have little difficulty in providing such time subject to receiving appropriate notice from the grandparents.
If the father was to see the children each alternate weekend, Ms D opines that the grandparent’s time can occur as part of the father’s time – that is, that there be no order for separate time for them.
The grandparents have a good relationship with the children. The mother concedes that and also concedes that the children would benefit from seeing them regularly.
Ordered time for both a parent and grandparents has the potential to create significant practical difficulties and disruption to the orderly lives of children – particularly as they enter their school years and weekends become, often, the only viable time for block time to occur.
If orders are made for the children to spend time as frequent as alternate weekends with the father, I consider it highly likely, given the current close geographical proximity of the father and his parents and their obvious good relationship that they will see their grandchildren with regularity and frequency.
I am not persuaded that I should order additional time (although, of course, the orders will provide the capacity for agreement between all of the parties).
Willingness and Capacity to Promote Relationship
The ordered alternate weekend time between the children and their father was interrupted in November 2008 by the unilateral actions of the mother. That occurred, it seems, consequent upon the paternal grandparents indicating that they sought leave to intervene in the proceedings.
Ms D reports in that respect:
… [The mother] reported that she “freaked out” as she believed the children would be taken away from her. [The mother] advised that she was under the impression that the paternal grandparents were seeking custody of the children and provided an account of how she perceived the specifics of their application. She reported that she informed [the father] of her intention to cease the boys time with him until she could obtain legal advice to better understand the paternal grandparents’ positions. [The mother] advised that she has offered make up time but [the Father] has declined all her offers.
The actions of the mother in denying time between the children and their father are, it should be emphasised, contrary to what might be expected of a parent exercising the appropriate responsibilities of parenthood. That is particularly so in circumstances where, as the mother readily conceded during the course of the hearing, it was entirely appropriate for the children to spend regular frequent time with their father and to continue to develop a relationship with him. That is, of course, all the more important given their ages.
I am not prepared to find, however, that the mother’s desire to move to Y (or, for that matter, anywhere else outside of Brisbane) is indicative of an unwillingness (or, for that matter, inability) to facilitate and encourage a close and continuing relationship between the children and their father, and between the children and their grandparents.
In my view, the actions of the mother are entirely consistent with my assessment of her as a highly stressed, very anxious individual whose parenting of the children, and attitudes towards their care by each of their parents, manifests those very high levels of anxiety.
Those matters lead to concerns that if the mother is separated from the father (and his parents) by a significant geographic distance her willingness to promote and encourage a close and continuing relationship between the children and the father may wane. Certainly that is a matter of profound significance to the grandparents and I gauge their concerns in that respect as being sincere.
My concerns in that respect are exacerbated by the close proximity of the mother to her sister that living in Y will provide. The mother sees some benefit to her in that and no doubt there is some. But doing so also places her in proximity to, and in regular contact with, a person who has the attitude toward B earlier referred to. There is a real prospect, in my view, that the mother’s hypervigilance and concerns about B, and what I assess to be her overvalued ideas about risk, may over-ride what she clearly sees as the children’s need to spend regular and consistent time with the father.
I don’t consider the same factor to be as significant if the mother was to live in a place that would allow, at the least, alternate weekend time to occur – the difference in distance, absence of her sister and regularity of time all being factors ameliorating same.
The mother sought to underline her willingness to provide free and liberal time to the father and his parents in the event that she lived with the children outside of Brisbane. In her written submissions the mother said:
If relocation was to be permitted then so far as I am concerned the restrictions that the court may impose will NOT in any way hinder any family members from visiting the children at any time they choose.
The mother sought to emphasise this point in oral submissions as well.
I assess, however, the mother’s willingness and ability to promote and encourage a close and continuing relationship would be assisted by regular time between the children and their father, such as each alternate weekend. Put another way, the risk of the mother’s willingness waning is diminished (as, too, is the risk of “out of sight, out of mind” identified by Ms D) if the geographic distance between the parties is such that regular weekend time can be maintained between the children and their father.
Changes
I have already referred to what I consider to be the likely detrimental effect of a change for the children from the effective full-time care of their mother into the effective full-time care of their father. I consider that this would represent a dramatic change for them, so I can see no significant positive benefits for them in that change.
The corollary is that I consider it in the children’s best interests that the mother continue to be the children’s primary carer and to provide the vast majority of their day to day care. This, too, is consistent with the proposal of the father.
I consider that there are likely to be detrimental effects for the children if the time that they have been spending with their father is significantly diminished. Ms D assesses a close attachment between the children and their father and a close attachment between the children and their paternal grandparents. I have no reason to doubt that opinion and I accept it.
With children of this age, there is the risk identified by Ms D that a significant diminution in time, and the change thereby created to the nature of the relationship between the children and their father, is likely to be of detriment to their attachment to him in the medium and long term.
The resolution of the parties’ financial affairs remains outstanding as a result of orders made by me for reasons delivered separately to these reasons. Change for each may occur. But, in so far as parenting orders made by a court should bring about a change, I see it as significantly beneficial for both children if change is minimised in the manner just described.
Freedoms, Reasons and Disappointment
Earlier decisions of the High Court and the Full Court of this court did not (as is sometimes suggested) render reasons for relocating irrelevant. A court is not permitted to require of a person seeking to move “compelling reasons”. However, reasons can clearly be relevant to many of the s 60CC considerations.
Mala fides (for example moving for the express purpose of denying time to the other parent) and, in a similar context, capriciousness, in a decision to move can be relevant. Equally, the reasons for a “remaining parent” not moving can be similarly relevant.
Whilst the motives of the mother for relocating to Y have been questioned by the father, it is beyond argument that Y has not been arbitrarily chosen by her as a place remote from the father. On any view of the evidence the parties – and indeed the children – have had a previous connection with that place. Indeed, the parties lived for effectively the whole of their cohabitation in that area, the children were born there and lived almost half their lives there. Further, the mother’s sister, who has emigrated from the United Kingdom, lives in that city with her husband and three children.
The affidavit of the father is completely silent as to his capacity to move to the Y region (or anywhere else) in the event that the mother and children were to live there (or elsewhere) – (as to which see e.g. Hayne J in U v U (2002) 29 FamLR 74 at [175]). The father’s affidavit material is also completely silent as to his capacity to undertake visits to Y should the children reside with their mother in that area. Ultimately, as indicated earlier, that evidence emerged in the trial, largely as a result of questions asked by me.
I consider that the father has given very little, if any, thought to how alternative arrangements might be made by him in that event. I have quoted earlier a passage from Ms D’s report giving support to that impression.
The father, when asked about his reasons for not being able to relocate, predominated the special needs of B. In particular he asserted that he has been told by therapists (including Mr R from whom an affidavit was filed by the father) that change is contraindicated in B’s best interests. In particular the father indicated that he did not want to change B’s school. All of those matters are understandable (although evidence by the father, particularly in response to questions by me, unfolding consequent upon disclosure of an incident in which B absented herself from school, indicated that the father had in fact contemplated boarding school as a possibility for B).
If the mother was to live on the Sunshine Coast with the children then I should not assume that the father cannot move away from M in southern Brisbane to a place which is nevertheless within reasonable distance of the support he is able to receive from his parents. Again, he puts forward no such proposal although, in this instance, as earlier referred to, he had limited notice of a crystallised plan of the mother to move to the Sunshine Coast.
As I have earlier said, if the father was to remain living where he is (as is his choice and his right) in my view alternate weekend time can be facilitated between the parties if the mother was to live on the Sunshine Coast, albeit that each of the parties (and the children) would be involved in a degree of driving.
If orders of this court in respect of time effectively required the mother to not live in Y and to live within a geographic distance of the father so as to permit of weekend time, there is, inherent in them, a restriction on her freedom to move. Yet that must give way if the best interests of the children require time with the father such that a restriction in her location might follow.
In my view, that freedom needs to give way to the extent necessary to allow the children to spend alternate weekend time with their father.
Equal Shared Parental Responsibility and its Mandatory Ramifications
After clarification by the court, it became clear, ultimately, that each of the parties sought an order for “equal shared parental responsibility”. Of course, their respective positions are reinforced by a presumption that such an order should be made unless (relevantly) it is contrary to the children’s best interests.
That parties should agree upon such an order (or that the presumption applies) does not, in my view, absolve the court from considering, separately to the proposals of the parties, whether the presumption is rebutted by matters relevant to the best interests of the children. It seems to me that the significant discord and conflict attending the relationship between the parties ought raise significant concerns about their capacity to conduct the active process which equal shared parental responsibility contemplates (see s 65DAC of the Act).
I am cautiously confident, however, that better communication and interaction will result from the resolution of these proceedings (and, subsequently, the financial proceedings) and it seems to me appropriate that the parties should share equally the rights and responsibilities which equal shared parental responsibility contemplates.
Because an order to that effect is to be made, it is mandatory for me to consider whether orders for equal time or substantial and significant time are in the children’s best interests.
Neither of the parties contend for an order for equal time. Again, the mandatory provisions of the Act mean that a court is not thereby absolved from considering whether such an order is in the children’s best interests. But, of course, the attitude of the parties is a particularly powerful factor when it comes to that earnest consideration; indeed it is difficult to see how it is not effectively determinative - it is the parties who need to commit to, and thereafter undertake, all of the tasks (and submit to the co-operation) necessary in such an order. It is difficult to see how an imposed order for equal time might work in circumstances where neither party seeks it.
Here, there are, in any event, a number of considerations which point against any such conclusion: the children are young and the mother has, historically, been their primary carer; the father has parental responsibilities for another (teenage) child who has in the past experienced, and continues to experience, significant behavioural difficulties; the father is a full-time worker whose work hours necessitate leaving home early in the morning are but some factors that are clearly referable to the s 60CC considerations.
Plainly, an order for equal time should not be made.
It is necessary, then, to consider an order for substantial and significant time. The father’s proposal would meet the Act’s definition; the mother’s (in the event she lived either in Y or on the Sunshine Coast) would, by reason of non-weekend time not being included as a result of the practicalities involved, not meet that definition.
Substantial and Significant Time – The Evidence of Ms D
In the event that the mother lives on the Sunshine Coast, the father would not have available to him (in reasonably practical terms) the weekly Wednesday time that he considers to be central to having a meaningful relationship with the children.
Ms D was asked specifically about this issue in the witness box. It will be recalled that her report recommends the children spending weekly Wednesday time and for the children “to be returned at an agreed time each Wednesday night following their sporting activities”. Ms D’s view at trial was unchanged: the father should be “given the opportunity to participate in regular school activities and experience carrying out the care tasks of the children”.
It is not immediately clear to me what opportunities present to the husband to participate in “regular school activities” and the experiencing of “carrying out care tasks” of them each Wednesday evening in circumstances where no consideration is given to how his work (and care commitments for B) might appropriately intersect with same, nor how those experiences are applicable to what is postulated, essentially, as after-school sporting participation. Certainly, his own evidence did not address those issues in a meaningful way.
Such time certainly provides, of course, for greater regularity of time with less time between visits. Central to Ms D’s views, and to my consideration, is the ages and stages of development of these two children. There are likely to be benefits to the children flowing from the postulated regularity of time in the development of a relationship between the children and their father.
However, such a proposal also has inherent in it a significant restriction on the ability of the mother – as the conceded primary carer of the children – to establish a life for herself and them in a place of her choosing. It also has inherent in it multiple changeovers and multiple opportunities for the parties to interact and for the exigencies of the parties respective lives to intervene. There are likely to be some disadvantages – the exposure to conflict central among them – inherent in same.
In neither report does Ms D appear to give any consideration to whether the father is able to move, whether to Y or anywhere else. This has the potential to be significant – for example, if the mother lived within sufficient proximity to allow alternate weekend time to occur, a move by the father (for example to a northern suburb of Brisbane) might allow the facilitation of weekly Wednesday time.
Ms D was asked specifically about the role of the Wednesday time. She considered that, because of the children’s ages (and, inferentially, their stages of development) the Wednesday time was important. I took her to mean that the reduction in time between visits to their father was as important as the amount of time spent with their father on the Wednesdays.
As already referred to, Ms D says in her first report:
61.Relocation may also potentially adversely affect their attachment with their mother. [The mother] is proposing that the children spend significant quality [sic] of time away from her primary care over the holiday with their father to compensate for the time he loses throughout the year. Whilst this is a generous offer, it may generate feelings of anxiety and insecurity within [the children]. This may increase their clinginess to [the mother] and disrupt their secure attachment to her. I am aware that [the children] will be spending considerable time with their father over the holiday periods as it stands in either proposal. However the difference is, [the mother] would be in close proximity if required to provide assurance to the children in person if she remains local. This would not necessarily be the case if [the mother] is living in [Y].
With great respect to Ms D, I do not consider that the ultimate conclusion follows. It contains a premise (that the mother would be in close proximity on holiday periods) not justified on the evidence or the proposals of the parties. Followed to its logical conclusion, a recommendation should surely follow that there ought be a restriction upon the father taking the children on holidays to places other than where the mother “remained local”. No such recommendation appears, neither party proposes any such course of action and I would not countenance it on the facts of this case.
The father postulates on his own case a relationship with the children that would see the mother carry out the predominant care giving for the children with him spending time with them on weekends and a Wednesday evening. When challenged by Ms D in the report process with the potential impracticality of his expressed proposal in the event that the children were to live in Y, he countered with proposing holiday time (and no weekend time).
Orders Reflecting L and A’s Best Interests
Assuming, as do the parties, that the best interests of these children are best met by them receiving their predominant day to day care from their mother, I consider it in the best interests of these children, at their current ages and stages of development that they spend alternate weekend time with their father.
The mother’s proposed move to Y, for all of the reasons earlier discussed would not permit, on a practical level, of that occurring. I consider it highly likely that the combination of circumstances earlier discussed would lead – probably sooner rather than later – to regular weekend time not being spent with the father. I consider that contrary to the best interests of the children at this stage in their lives.
I have given earnest consideration to whether “substantial and significant time” which, in this case would mean ordering weekly Wednesday time in addition to the weekend and holiday time, is in the children’s best interests.
I consider that such time presents benefits for the children. I consider it also presents potential detriments.
Such an arrangement would, in light of the evidence that the father will not move (by reason of his current proximity to his parents and the arrangements in place for B) necessarily restrict the mother to live within relatively close geographical proximity of the father (and his parents). That is contrary to the mother’s legitimate desire to move.
The mother’s (legitimate) desire to move to Y should, in my view, give way to what I assess as being in the children’s best interest by reason of the need (as I find it) for the children to reliably spend alternate weekend time with the father (and, through him, their paternal grandparents).
However, I consider that, on balance, the children’s best interests do not require a similar interference in the mother’s freedom to choose a place to live such that weekly Wednesday time can be availed of.
I do not consider it appropriate, in the form of the order to provide a restriction on the mother living at a place, or within a radius of either Brisbane or the father’s residence, arbitrarily chosen by me. Such a form of order tends, in any event, to take attention away from the court’s proper task and the proper task of orders made – namely to provide for co-parenting arrangements found to be in the best interests of the children.
It is appropriate to notate the mother’s intention to reside on the Sunshine Coast. But, of course, inherent in the orders is a choice of a place of residence by her but which avails the children of the ordered weekend time. So, too, a notation ought reflect the current choice of residence by the father. Axiomatically, a choice of a place of residence by him different to that noted, is not restricted.
As a result of the findings earlier made by me, I do not consider it appropriate to make the order sought by the mother for a “safety plan” (which, in terms, I would not, in any event make) or to fashion other forms of order to a similar effect (for example, injunctive relief).
In circumstances where I intend to order as indicated, I do not, for the reasons earlier referred to, consider it in the best interests of the children to make orders for time in favour of the grandparents separate to that of the father.
It is to be noted, however that the specific orders are preceded by a preamble that contemplates the parties arriving at consent arrangements different to those specifically ordered by me. The parties can arrive at a half-way point for changeovers by agreement.
I will order in accordance with the orders set out at the commencement of these reasons.
I certify that the preceding two hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 6 October 2009
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