Francis and Rantaine
[2019] FamCA 11
•18 January 2019
FAMILY COURT OF AUSTRALIA
| FRANCIS & RANTAINE | [2019] FamCA 11 |
| FAMILY LAW – CHILDREN – Best interests of the child – equal shared parental responsibility – contingent order for equal time – children have meaningful relationship with both parents – weight given to the views of the children – weight to be given to maintenance of children’s current arrangements. |
| Family Law Act 1975 (Cth) |
| Bondelmonte v Bondelmonte (2017) 341 ALR 179 U & U (2002) 211 CLR 238 |
| APPLICANT: | Ms Francis |
| RESPONDENT: | Mr Rantaine |
| FILE NUMBER: | CAC | 1695 | of | 2016 |
| DATE DELIVERED: | 18 January 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 5-7 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT | Dr Behrens |
| SOLICITOR FOR THE APPLICANT:: | Walsh & Blair |
| SOLICITOR FOR THE RESPONDENT: | Crampton Legal |
Orders
That the parties have equal shared parental responsibility for D, born … 2009, and E, born … 2011 (“the children”).
That the children live with the Father.
That the children spend time and communicate with the Mother as follows:-
3.1During school terms:-
a.Every second weekend from Friday after school or at 3.30pm (whichever occurring first) to 9.00am on Monday, the first such weekend each term to commence on the first Friday after school recommences; and
b.By telephone on every Tuesday and Thursday with the Mother to initiate the telephone call between 7-7.30pm to the Father’s mobile and that the Father immediately offer the phone to the children without undue distraction.
3.2During each of the Term 1, 2 and 3 school holidays and the summer holiday period:-
a.In odd numbered years from 12.00pm on Saturday of the first week of the holidays to 12.00pm on the middle Saturday and;
b.In even numbered years from 12.00pm on the middle Saturday of the middle weekend until the final Saturday of the holidays.
3.3From the conclusion of school at the end of the school year, until the commencement of the Christmas time arrangements under these Orders;
3.4From the conclusion of the Christmas time arrangements under these orders until 5pm on 12 January in 2018/19 and each odd numbered year thereafter;
3.5From 5pm on 12 January until the commencement of the school year in 2019/20 and each other year thereafter;
Notwithstanding anything to the contrary in these Orders, the children spend time with their parent on special occasions as follows:-
a.on the parent’s Birthday, if not a school day or already spending time, from 9.00am to 7.00pm;
b.on Father’s Day from 9.00am to 4.00pm with the Father (if not already in the Father’s care);
c.on Mother’s Day from 9.00am to 4.00pm with the Mother (if not already in the Mother’s care)
d.at Christmas:-
i.in odd years with the Father from 4.00pm on Christmas Eve to 2.00pm on Christmas Day; and
ii.in odd years with the Mother from 2.00pm on Christmas Day to 4.00pm on Boxing Day
iii.in even years with the Father from 2.00pm on Christmas Day to 4.00pm on Boxing Day.
iv.in even years with the Mother from 4.00pm on Christmas Eve to 2.00pm on Christmas Day; and
That changeovers occur at F Town Woolworths/Caltex, F Town, or alternatively as agreed between the parties.
In the event of the children being hospitalised or requiring medical attention the parent spending time with that child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
That the Mother is authorised by this Order to obtain any information from any treating practitioner, hospital or medical practice that the children shall attend form time to time.
Each party shall be entitled and shall authorise where necessary the school(s) that the children may attend to provide each party with copies of all school reports, school newsletters, notification of school activities, parent teacher nights, and inform each parent of any emergency, remedial or correctional treatment as soon as practicable, and that each parent is entitled to attend school events and parent/teacher appointments.
That each party advise the other party and keep the other party advised of their current address and contact number (including both landline (if applicable) and mobile telephone) and advise the other party of any changes to these within 48 hours of such occurring.
That each party shall refrain from:-
a.Making critical or derogatory remarks about the other in the presence or within the hearing of the children and each party shall do all things reasonable necessary to ensure that no other person makes any critical or derogatory remarks about the other in the presence or within the hearing of any of the children.
b.Discussing the proceedings with the children, showing documents in relation to the proceedings to the children, or causing the children to otherwise become aware of any issue, fact or circumstance in relation to these proceedings.
c.Using illicit drugs while the children are in their care, and for 24 hours prior to the children coming into their care.
d.Exposing the children, or allowing the children to be exposed, to drug-taking or to paraphernalia associated with drug-taking.
The parties may vary the arrangements by agreement in writing, including by means of text messages.
In the event that the Mother relocates to the C Town area, then, from the time when the Mother is living within a 30-minute drive of the children’s school:
The children live with the parents on a week about basis, with changeover to occur on Friday after school, provided that they will spend time with the parent they are not living with on Tuesday from after school until 7.30pm, unless otherwise agreed.
In such an event the orders for special occasions and Christmas holiday time prevail over the above order.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Francis & Rantaine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1695 of 2016
| Ms Francis |
Applicant
And
| Mr Rantaine |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The Applicant Mother in this matter is Ms Francis; the Respondent Father is Mr Rantaine. The proceedings concern the care of the children of the relationship between the parties, D, born in 2009, and E, born in 2011.
At the centre of the dispute are issues of whether the children should live with the Father in C Town or with the Mother in B Town.
Documents relied upon
The Mother relied upon:
a.Initiating Application, filed 5 December 2016;
b.Affidavit of the Mother, filed 30 October 2017;
c.Affidavit of Ms K Francis, maternal grandmother, filed 3 November 2017; and
d.Family report dated 7 March 2017.
The Father relied upon:
a.Affidavit of the Father, filed 24 October 2017;
b.Affidavit of Ms L, filed 24 October 2017;
c.Affidavit of Ms J Rantaine, paternal grandmother, filed 24 October 2017.
Joint Case Summary & Issues in Dispute[1]
[1] Filed on 6 June 2017.
The parties helpfully filed a joint document setting out the key factual contentions that they identified as requiring resolution. This is dealt with in detail later in the judgment.
Mother’s orders sought[2]
[2] Case Outline document dated 1 February 2018
The parties have equal shared parental responsibility for D, born in 2009 and E, born in 2011 (together “the children”).
The children live with the Mother and spend time and communicate with the Father as follows:
a.During school terms on the first, third, fourth, sixth and seventh weekends of the school term from after school on Friday until at school on Monday, or at school on Tuesday if Monday is a public holiday;
b.For the first week of each term school holiday, commencing after school on the last Friday of the school term, and concluding at 5pm on the middle Saturday of the term school holiday;
c.From the conclusion of school at the end of the school year, until the commencement of the Christmas time arrangements under these Orders;
d.From the conclusion of the Christmas time arrangements under these orders until 5 pm on 12 January in 2018/19 and each alternate year thereafter;
e.From 5pm on 12 January until the commencement of the school year in 2019/20 and each alternate year thereafter;
f.By telephone call or Skype each Tuesday and Thursday between 6.30 and 7.00 pm, with the Father to initiate the call and the Mother to facilitate the children taking the call.;
g.As otherwise agreed by the parties from time to time
Notwithstanding anything to the contrary in these Orders, the children spend time with their parent on special occasions as follows:-
a.on the parent’s Birthday, if not a school day or already spending time, from 9.00 am to 7.00 pm;
b.on Father’s Day from 9.00 am to 4.00 pm with the Father (if not already in the Father’s care);
c.on Mother’s Day from 9.00 am to 4.00 pm with the Mother (if not already in the Mother’s care)
d.at Christmas:-
i.in odd years with the Father from 4.00 pm on Christmas Eve to 2.00 pm on Christmas Day; and
ii.in even years with the Father from 2.00 pm on Christmas Day to 4.00 pm on Boxing Day.
iii.in even years with the Mother from 4.00 pm on Christmas Eve to 2.00 pm on Christmas Day; and
iv.in odd years with the Mother from 2.00 pm on Christmas Day to 4.00 pm on Boxing Day
The Mother is restrained from relocating the children’s residence to a place which will increase the travelling time for the Father to spend time with the children by more than 10 minutes.
Changeovers which do not occur at the children’s school will occur at F Town Woolworths/Caltex, F Town, or alternatively as agreed between the parties.
That both parties are restrained from using non-prescription drugs and from consuming alcohol to excess while the children are in their care, and for 24 hours prior to the children coming into their care. Both parties are restrained from exposing the children, or allowing the children to be exposed, to drug-taking or to paraphernalia associated with drug-taking.
In the event of a child being hospitalised or requiring medical attention the parent spending time with that child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
Both parents are authorised by this Order to obtain any information from any treating practitioner, hospital or medical practice that the Children shall attend from time to time.
Each party shall be entitled and shall authorise where necessary from the school(s) that the Children may attend to provide each party with copies of all school reports, school newsletters, notification of all school activities, parent teacher nights, and inform each parent of any emergency, remedial or correctional treatment as soon as practicable, and that each parent is entitled to attend school events and parent/teacher appointments.
Each party advise the other party and keep the other party advised of their current address and contact number (including both landline (if applicable) and mobile telephone) and advise the other party of any changes to these within 48 hours of such occurring.
Each party shall refrain from:-
a.making critical or derogatory remarks about the other in the presence or within the hearing of the Children and each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other in the presence or within the hearing of any of the Children; and
b.discussing the proceedings with the Children, showing documents in relation to the proceedings to the Children, or causing the Children to otherwise become aware of any issue, fact or circumstance in relation to these proceedings.
In the event the Court decides that the children should live with the Father in C Town, and if and while the Mother remains living more than 30 minutes’ drive from the children’s school:
The Father is restrained from relocating the children’s residence from the C Town area, unless that relocation is to a location closer to where the Mother is then living.
The children spend time and communicate with the Mother as follows:
a.During school terms on the first, third, fourth, sixth and seventh weekends of the school term from after school on Friday until at school on Monday, or at school on Tuesday if Monday is a public holiday.
b.For the first week of each term school holiday, commencing after school on the last Friday of the school term, and concluding at 5pm on the middle Saturday of the term school holiday.
c.From the conclusion of school at the end of the school year, until the commencement of the Christmas time arrangements under these Orders.
d.From the conclusion of the Christmas time arrangements under these orders until 5pm on 12 January in 2018/19 and each alternate year thereafter.
e.From 5pm on 12 January until the commencement of the school year in 2019/20 and each alternate year thereafter.
f.By telephone call or Skype each Tuesday and Thursday between 6.30 and 7.00pm, with the Mother to initiate the call and the Father to facilitate the children taking the call.
In the event the Court decides that the children should live with the Father in C Town, and the Mother is also able to relocate to the C Town area, then, from the time when the Mother is living within a 30-minute drive of the children’s school:
The children live with the parents on a week about basis, with changeover to occur on Friday after school, provided that they will spend time with the parent they are not living with on Tuesday from after school until 7.30pm, unless otherwise agreed.
(Note – it was agreed by the parties that this order should be made. The Father conceded that if reasonably practicable it was in the girls’ best interests that such an order for equally shared time be made.)
Father’s orders sought[3]
[3] Trial document dated 1 February 2018
1.That the parties have equal shared parental responsibility for D, born in 2009 and E, born in 2011 (“the children”).
2. That the children live with the father.
3. That the children spend time and communicate with the mother as follows:-
3.1 During school terms:-
a. Every second weekend from Friday after school or at 3.30 pm (whichever occurring first) to 9.00 am on Monday; and
b. By telephone on every Tuesday and Thursday with the mother to initiate the telephone call between 7-7.30 pm to the father’s mobile and that the father immediately offer the phone to the children without undue distraction.
3.2During each of the Term 1, 2 and 3 school holidays and the summer holiday period:-
a. From 12.00 pm on Saturday of the first week of the holidays to 12.00 pm on the middle Saturday in odd numbered years and alternating thereafter and;
b. From 12.00 pm on the middle Saturday of the middle weekend until the final Saturday of the holidays in even numbered years alternating thereafter.
3.3 On special occasions as follows:-
a. On the mother’s birthday, if not a school day or already spending time, from 9.00 am to 7.00 pm; and
b. On mother’s day weekend with the alternate weekend arrangement to be adjusted accordingly.
3.4 As otherwise agreed by the parties from time to time.
3.5 That during school holiday periods Order 3.1a be suspended.
4. That irrespective of any Order to the contrary, the children spend time with the father as follows:-
4.1 On the father’s birthday from 9.00 am to 7.00 pm; and
4.2On father’s day weekend with the alternate weekend arrangement to be adjusted accordingly.
5.That changeovers occur at F Town Woolworths/Caltex, F Town, or alternatively as agreed between the parties.
6.In the event of the children being hospitalised or requiring medical attention the parent spending time with that child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
7.That the mother is authorised by this Order to obtain any information from any treating practitioner, hospital or medical practice that the children shall attend form time to time.
8.Each party shall be entitled and shall authorise where necessary the school(s) that the children may attend to provide each party with copies of all school reports, school newsletters, notification of school activities, parent teacher nights, and inform each parent of any emergency, remedial or correctional treatment as soon as practicable, and that each parent is entitled to attend school events and parent/teacher appointments.
9.That each party advise the other party and keep the other party advised of their current address and contact number (including both landline (if applicable) and mobile telephone) and advise the other party of any changes to these within 48 hours of such occurring.
10. That each party shall refrain from:-
a. Making critical or derogatory remarks about the other in the presence or within the hearing of the children and each party shall do all things reasonable necessary to ensure that no other person makes any critical or derogatory remarks about the other in the presence or within the hearing of any of the children.
b. Discussing the proceedings with the children, showing documents in relation to the proceedings to the children, or causing the children to otherwise become aware of any issue, fact or circumstance in relation to these proceedings.
11.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The history of care arrangements and the proceedings
Prior to separation the parties lived together in C Town, along with the children from the Mother’s previous relationship, M and N. The Mother moved to B Town following separation on 24 December 2013 and the Father spent four days a week with the girls. The time subsequently reduced so as not to include the fourth day, although on the fourth day there was still involvement by him and the paternal grandmother with speech therapy for D.
In December 2015 the Mother raised with the Father her intention to travel to Queensland in early 2016 to study nutrition. At that time she was living in B Town with D, E, M and N. M and N’s father was living in O Town and the Father in these proceedings was living in C Town.
The parties agreed that E and D would live with the Father. At the same time an agreement was made with M and N’s father that they would live with him in O Town. The Mother and Father agreed that the arrangement would be subject to review after six to twelve months. The Mother described the arrangement as being ‘an agreement until she got herself set up’. If not (that is, if she did not determine that she would remain in Queensland) and she returned, her view was that she and the Father would then revisit the arrangements. That is, even on her account, it was not a foregone conclusion that on return the children would move to live with her again in B Town. Rather, it would be a matter that would be required to be determined at the time.
The Mother also characterises this agreement as being one where the girls would live with the Father pending her determination as to whether or not it was suitable for them to move to Queensland.
The Mother left for P Town in January 2016 and remained studying at the course for the first semester, returning to B Town in August 2016.
In the lead up to, and following the move to Queensland, litigation was taking place between the parties in the C Town Local Court regarding the children.
The Father obtained ex parte orders in the local Court at C Town on 3 March 2015, restraining the Mother from moving the residence of the girls. This application was in response to a post that the Mother made on Facebook speaking of intentions to move to the coast.
There was little participation by the Mother in those proceedings. She explained that her non-involvement was the result of a conversation with the Father where they discussed dealing with the matter outside of court. Although she denied it, she sought and obtained an adjournment of the proceedings at one point (the court file showing contact from the Mother to seek the adjournment). Further, the court sent multiple letters being notices of adjournment to the Mother at her address in B Town. She denies receiving any of this correspondence. Following her request for an adjournment it appears that she took no further step in the proceedings. Those proceedings ultimately resulted in orders being made in the following general terms on 5 April 2016:
1.The children to live with the Father.
2.The parties to have joint parental responsibility for the children’s major decisions as to their care, welfare and development.
3.Each parent to have the day to day care of the children when with that parent.
4.The Mother to spend time with the children during school holiday periods, and at other times as agreed.
5.The parties to have liberty to telephone the children whilst the children are in the care of the other parent.
6.Each parent is authorised to obtain from the children’s respective school all notices, letters, school reports and invitations to attend parent/teacher interviews or other activities.
7.In the event of a medical emergency involving a child then each parent must contact the other parent as soon as is practicable and authorise the responsible health professional to speak with that other parent.
8.Each party advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
Despite her explanation, the non-participation in the Local Court proceedings sits uncomfortably with the Mother’s assertion that it was her intention that the girls should join her in Queensland. Given the previous orders of the court that prevented a move to the coast, and given that those proceedings coincided with the Mother’s move to Queensland, it is difficult to see how moving the children to Queensland could be effected without an involvement in the proceedings.
Following her return to the area in August 2016, the Mother subsequently retained the girls following the two week school holiday break in about September 2016. She enrolled them in school in B Town. The Father obtained an ex parte recovery order in the Local Court. The Mother contested the validity of those orders and appealed to the Family Court of Australia. The proceedings were then conducted in this Court.
The significance of the agreement to leave the girls with the Father in order to study speaks of confidence on the Mother’s part in the nature of the relationships between each of the girls and their Father, and also his and his partner’s (Ms L) ability to parent. This confidence is reinforced by the evidence from the Mother that indicated that she made little inquiry as to the possibilities of studying locally. She made enquiries at the Q University (a short distance from B Town) but did not consider the course suitable. Rather, she identified the R College course and having examined it, determined that it had the course content that was desirable. She made no enquiries at other relatively local tertiary institutions, for example in Canberra. Those limited enquiries reinforce the confidence that she had in leaving the girls with their Father.
While studying in Queensland for the first semester the Mother made no enquiries as to what practical arrangements could be put in place for the girls to move to Queensland. For example, no enquiries were made as to what childcare facilities might be available to her given her intention to study full-time. This failure to make enquiries does not necessarily rule out the notion that the Mother considered that the girls may at some point move to Queensland with her, but it does undermine the notion that she was committed to, or prepared for such an outcome, or that there was urgency in moving them.
This uncertainty as to future arrangements is perhaps also reflected in the arrangements for M and N. Following the Mother’s return they remained living with their Father in O Town. The Mother has agreed that this is the appropriate arrangement for them as they are doing well in O Town, and doing well at school.
The lack of practical or legal steps by the Mother to move the girls undermines the idea that the Mother had a firm intention to have the girls move to Queensland, although she no doubt entertained the possibility. The significance of this is that it reinforces the idea that the Mother had confidence in the Father’s capacity and relationships with the girls.
Following the commencement of proceedings in the Family Court, in 6 June 2017 orders were made for the Father to undertake random supervised drug urinalysis screening, no more frequently than once per month.
On 6 July 2017 interim hearing orders were made amending the time the children spend with their Mother as follows:
…
2.The children will spend time with and communicate with the Mother as follows:
a.During school term as agreed, but failing agreement in a four week cycle as follows:
i.In week 1, on Friday from after school or at 3.10pm (whichever occurs first) to Monday before school or at 8.45am (whichever occurs first), with changeovers to occur at the children’s school at the commencement and conclusion of time;
ii.In week 2, for a period of one night and one day as agreed, or failing agreement, from Friday after school or at 3.10pm (whichever first occurs) to Saturday at 3pm;
iii.In week 4, on Friday from after school or at 3.10pm (whichever occurs first) to Monday before school or at 8.45am (whichever occurs first), with changeovers to occur at the children’s school at the commencement and conclusion of time;
iv.By telephone on every Tuesday and Thursday with the Mother to initiate the telephone call between 7-7.30pm to the Father’s mobile and that the Father immediately offer the phone to the children without undue distraction.
On 11 November 2017 further orders were made in the Family Court for the parents to have equal shared parental responsibility for the children and for the children to live with their Father. The arrangements during school term were for the children to spend time with their Mother each alternate weekend from 3pm Friday until 9am the following Monday. Additional time for school holidays and special occasions was also ordered.
Cooperation and attitude to parenting
Despite the, at times difficult, litigation the parties both maintain that they have a civil and cooperative relationship with each other. In general this appears to be the case. There have been some notable exceptions.
On the weekend of Mother’s Day 2016 the Mother returned from Queensland to B Town to visit her mother. This was done at short notice to her mother and at no notice to the Father. He had previously arranged with the maternal grandmother that the girls would spend that weekend with her, which would also give them an opportunity to see their siblings M and N. It was M’s birthday. This is a demonstration of the support that he has for the relationships with the maternal family.
At that stage the Mother had been away for a number of months. She did not tell the Father that she was coming back for that weekend. On Sunday she sought to have the girls for a longer period of time. In response the Father called the police and had them attend at the B Town residence.
It may be observed that the Father’s response, particularly where the children were not in any form of danger, was an excessive and high-handed response. Of course one of the difficulties that faces parties in such circumstances is the question of who they can have recourse to in order to enforce arrangements with the children. This had the consequence that the police attended at the Mother’s home, which was unlikely to have been in the best interest of the children. At the same time the issue arose because of the Mother acting without notice to the Father. While the Father said that he thought it was necessary to have the children return so they did not miss school or preschool, under the circumstances it would have been reasonable to allow the Mother to have some extra time seeing as she had not seen the children for some months. In contrast to his conduct on this occasion it is to be noted that on other occasions the Father has agreed to the children missing some school so they can spend some extra time with their Mother.
Subsequently the Mother saw the children on the following weekend with the consent of the Father and also midweek with the consent of the Father. Notwithstanding the intense difficulties which may have arisen due to the action on both of their parts they were able to quickly fall back to a civil and cooperative arrangement.
A further example of the breakdown of the arrangements between the parties occurred in late 2016 following the September / October school holidays. By this stage the Mother was living in B Town, having deferred her course. The Father agreed to the Mother having the girls for the whole of the two week school holiday period. At the end of that period and without notice to the Father she retained the girls. At no stage prior to the retention did either her communication directly to the Father, or the correspondence between the lawyers suggest such a retention may occur. They were due to come back to the Father on the Sunday before school. The Mother kept them and had enrolled them in B Town. There was no discussion with the Father about this arrangement and in response the Father obtained an ex parte recovery order. The Mother accepts that at the time she knew that there were orders in place and knew that her actions were non-compliant with the orders. Her lawyers asserted the orders were ultra vires. She asserts that her conduct was justified because she was concerned regarding the disclosures of the children about behaviour in the Father’s household, outlined at [51] of her affidavit. None revealed an urgent basis to change the arrangements for the girls abruptly and without notice.
Again, despite these difficulties, the parties have since managed a cooperative response to each other which has involved the girls spending time over and above the ordered time with the Mother. Although of little weight the Mother has consented to the girls continuing to live with their Father pending the resolution of the proceedings.
expression of views
In general terms the Mother says that the girls have expressed to her that they want to live with her. Specifically she says at [50] that D has said to her that “little girls should be with their mums”. The Mother denies questioning the girls about the Father’s house. She says that when they raise matters occurring in the Father’s house she acknowledges them but does not probe. When they have been upset or anxious she says that she has spoken to the girls about their views and told them that they can say whatever they think regarding who it is that they want to live with.
The Mother made a series of tenders to update evidence in relation to views expressed by the girls in writing to the Father, being exhibits A3 through to A5.
Exhibit A3:
To dad, I really don’t want to live with you. I’m really sorry But I’ll still come and visit you 2 days a week oh but christmas I stay with you three weeks. Love from [D] xoxo
To Dad and [Ms L]
Exhibit A4:
to dad
I’am sorry to say But i want to live with my mum Love from [E]
and the truth is that [Ms L] kicked us from [E] xoxo
Exhibit A5:
I’m sory i’am leting you down I just haft to Let you down but one day you haft to Let them down Becoos people sum tims peple wont to liv with there dad and sum tims they wont to live with there mum and im sory to say But I wont to lve with mum [text becomes indecipherable]
Send … [C Town] love from [E] Love [Mr Rantaine]
The Single Expert also reported both D and E telling her that they want to live with the Mother.
In contrast the Father reports that the girls have expressed to him both that they would like to live with the Mother and that they would like to live with him.
Criticisms
The Father made a number of criticisms of the Mother. One of these was that while in her care there had been an excessive missing of school. He represented this as being a deficiency on her part to the Single Expert. In 2015 D missed 13 days of school. However that number of absences incorporated six days off for an operation on her tonsils and adenoids. In that context the number of days of school missed was insignificant and he accepted that it was unfair to represent the school attendances as having been patchy. The Father also asserted that, in the Mother’s home, if the children did not want to go to school they did not have to go. He acknowledged that the only information he had for this was his reliance upon what E had told him.
However, he accepted both that there were no issues about the Mother’s causing the children to attend school in 2017, and that there had not been issues while they lived together.
As a further criticism of the Mother’s parenting capacity, the Father asserted that during the relationship when the Mother had the care of the children she would sleep all day. His basis for asserting this was that at times when he left for work in the morning the Mother was in bed and at times when he returned home she was also in bed. This was a slender basis to make the assertion that the Mother would sleep all day, and such a conclusion should not be reached.
The Father also criticised Mother for not keeping him advised as to school events in B Town. He agreed however that he could have obtained this information for himself.
A further criticism arose from an event where D, as a three-year-old, left the house and walked around the block without the Mother knowing. The Father accepted, however, that this could happen and was not indicative of bad parenting.
Further criticisms were made by the Father that the children were not fed properly. There were two significant examples raised. One was the story that the children told him of raiding the sugar bowl during the night. This is not a matter that he raised with the Mother and the Mother explained the sugar bowl incident in significantly different terms, noting that the children had only limited sugar, being restricted to using it with their Weet-Bix, and it was in that context that there had been access to the sugar bowl. The second example was an occasion where one of the children attended school without lunch. The Mother subsequently attended and dropped off the lunch. The Father agreed that was an unfair basis upon which to criticise her.
The Father was critical of the Mother’s lack of use of her telephone time with the girls. In his affidavit he asserted that out of the approximately 33 occasions when, in accordance with the orders, the Mother could have had telephone time with the girls she had exercised it on only five occasions since 6 July 2017. He says that previously, when the Mother moved to P Town she initially rang the girls regularly but from February through to May 2016 called only about once per month. He accepted that he had not initiated telephone calls to the Mother. He says that this was because the girls did not ask him to. He however says that he has told the girls that they can call their Mother whenever they want to. Further he accepted that there had been times when he had phone issues that had involved him changing phones and telephone numbers which may have made it more difficult for the Mother to exercise phone contact, although he says that this was only for very short periods of time.
The Mother accepted that on a number of occasions she did not exercise the Tuesday or Thursday telephone time. Sometimes that was because she had dropped off the children on the Monday or was otherwise seeing the children on the Friday. Sometimes she said it was hard to get in contact with the Father because he has changed his phone on a number of occasions.
The Mother has been critical of the Father’s household, particularly on the question of drugs, physical discipline of the girls and exposure to sexual interaction between the Father and Ms L. However, despite the issues raised in her affidavit, in her oral evidence she accepted he provides a safe and secure environment with the children.
On the issue of drugs in the Father’s household, the Father accepted that he used cannabis from the age of about 19 for most of his life. He says that he was clean for about three years during the relationship with the Mother, then relapsed. He told Ms S that he had not used cannabis for at least two years as of January 2017. He accepts that this was a lie, he having used on 12 September 2016, subsequently being charged with an offence relating to driving with cannabis in his system. At that stage the children were in his care and he was on the way to collect them. While it was suggested that it should be a matter of concern that he was driving with cannabis detected in his system no evidence was presented to indicate whether this was such as to be likely to impair his capacity to drive at the time. No evidence was given of the thresholds at which it might be thought that a person’s driving would be affected. No evidence was presented to demonstrate that his capacity to care for the children at that stage was impaired. His evidence was that he had smoked one cone the previous afternoon. I am unable to determine whether this would have had an adverse impact upon his driving. However, it demonstrated that he had lied to the Single Expert on a material matter concerning his drug use.
Minimal evidence was presented to suggest the potential for drug use within the Father’s home, being a reference by one the children to bags of drugs like on TV. This raises the spectre of exposure to drug use, when seen in combination with the Father’s use of cannabis. However, absent further evidence, or further description of what it meant to look like bags of drugs on television, an inference that they were drugs should not be drawn.
A reference was also made to a “little smoking bowl” by D, being a silver turtle. However, it turned out that the silver turtle referred to is a container for a mosquito coil, being a device in which a mosquito coil is put that emanates smoke from the coil.
It is appropriate to exercise some caution with respect to the Father’s evidence that his cannabis use is over, given the lie to the Single Expert. It was certainly not over in the manner that was represented to the Single Expert. The continued use contrary to the representation to the Single Expert is also in the context of the use of cannabis being a long standing problem which, although a period of abstinence had been achieved, had been the subject of relapse. There remains a risk of drug use on the part of the Father, although, given other concessions by the Mother, this does not rise to such a level as to constitute a risk of any particular significance to the children’s welfare. It does carry with it the prospect that, on relapse, the Father’s parenting capacity would be reduced. Such a reduction has not been shown to be significant.
While accusations were made against him of dealing in cannabis, these were not supported by any evidence.
A number of criticisms were made of the Father’s partner, Ms L. Ms L undertakes significant care of the children. She works from 6am to 2pm each weekday and each second weekend. She has structured her work so that she is available on the weekends that the children are with the Father so that she can watch them play sport, which she says she enjoys doing because the children have fun. Further she is the one who is at home when the children return from school prior to the Father’s return from work (although he also, at times, collects the children from school as shown in the C Town School records).
Ms L accepts that early on in the relationship with the Father she told the girls not to talk to her about their Mother. While she initially asserted that she has subsequently told them that it is okay to speak about their Mother, she accepted that she had not actually taken this step. Rather she has merely stopped telling them not to talk about their Mother. She says that they do talk about her now. Ms L accepts that having told the girls not to talk about their Mother was not fair and it was a matter that she regretted.
It was reported by one of the girls that she would be woken by arguments between Ms L and the Father after she had gone to sleep. While Ms L initially rejected that such arguments occurred she subsequently accepted that they did occur and could have woken the child.
On the issue of smacking, reports are attributed to the children accusing Ms L of smacking them. A report was made by the girls to the B Town police on 2 October 2016 which described the smacking by Ms L at a lower level than the description to S. Extracts from exhibit A8 contained the report by the girls (they were taken to the police by their Mother) as follows:
The mother reported no bruising of the girls. The police informally spoke with the girls on the front steps of the police station, where one girl said she liked living with her dad and liked? (which in context appears a reference to [Ms L]) although not when angry. She sometimes smacks her on the legs and kicked her once. Police noted it had not caused her to fall and was described as a “tap to the side of the shin… rather than a kick”). The other girl said of (again in context [Ms L]) that she was not scared of her or her Father and enjoyed living with the Father and [Ms L].
The most serious report came from the Single Expert where each of the girls, after reporting that there was nothing bad to say about the Father’s household, commented that Ms L smacked them. Ms L disputed this to the Single Expert saying that she had smacked once and that it was not a proper smack but merely a tap. She agreed that this report to the Single Expert on her part was not correct and that she had smacked the girls on two occasions.
The variability in Ms L’s answers about arguments with the Father, about smacking and about what she had or had not said to the girls about talking about their Mother undermines Ms L’s credibility, although, to a significant level it was restored by Ms L’s preparedness to make admissions adverse to her about the same matters.
Ms L, on balance, has used physical chastisement upon the girls to a greater degree than she conceded.
Ms L was questioned as to whether or not she had taken steps following the release of the Single Expert’s report, given the matters that were raised by the girls. Ms L said that her experience of the girls in the household was not reflective of what was reported by the Single Expert. However, she described that the step that she had taken was to try harder in relation to girls.
Ms L said despite the findings by the Single Expert regarding anxiety, these were not matters that she had seen in D. She was surprised by the finding by the Single Expert and had not taken any steps in relation to D and anxiety. In Ms L’s view D is doing really well.
The Single Expert
Ms S was appointed as the Single Expert in this matter. She saw the parties and conducted her evaluations in January 2017 with the report being released in March 2017. The trial took place in February 2018. Her recommendation was, on balance, that the children should continue to live with their Father and spend regular time with her Mother. Ms S agreed that the reference to this recommendation being “on balance” meant that it was a close call as to which of the parties the children should live with. She accepted that different findings as to the underlying facts would result in a different recommendation.
A number of matters were identified to Ms S that were not apparent at the time of the preparation the report, thereby going to the question of whether such a recommendation would be maintained “on balance” and as to what factors might impact a determination of best interests.
The first matter was that the Father had smoked cannabis in September 2016, contrary to his representations that he had been clean for a period of in excess of two years. Ms S thought that this would lead to there being concerns about the truth of other matters as asserted by the Father, but also some concern as to what his habits in respect of the consumption of cannabis actually were. She was further advised, as supported on the evidence, that while the Father had said that he would not have contemplated the girls moving to Queensland, the agreed position between he and the Mother was that they would have a review in the future as to what the living arrangements for the girls would be, which necessarily included a review as to whether or not they would move to P Town. Further, the Father’s complaints about inadequacies in the Mother’s provision of food for the girls, and about the Mother having slept all day while the girls were in her care, were accepted by him as unfounded.
Ms S was asked to assume the following facts. Firstly, that there were no concerns regarding attendance at the school while in the Mother’s care (given the evidence about school attendance in the Mother’s care, there is not a reasonable basis for concern); that secondly, the criticisms made of the Mother’s care had no basis (again, the evidence discussed above means that there is not a reasonable basis to have concerns about the care able to be provided by the Mother), thirdly that there was an agreement to review the arrangements including the potential of the children to move to Queensland (as conceded by the Father) and fourthly that there was no basis for the criticism previously made about the Mother’s relationship with her eldest daughter, N.
Ms S accepted that each of the factual matters on which she was now asked to assume different facts, with the exception of the fourth, had played a role in her “on balance” recommendation. However, the change to the assumed facts did not cause her to change her recommendation.
What weighed heavily, in Ms S’s assessment, were the matters contained at [7.21] of her report involving the Mother moving to Queensland and leaving the girls for a protracted period, which had led to a fear and anxiety on the part of the girls of being abandoned.
The Mother accepted the views expressed by the Single Expert as to the girls’ anxiety.
Ms S was then asked to accept the following further matters. Firstly, that the girls had expressed a clear and recent view of their desire to live with their Mother, that D suffers from a generalised anxiety, E from separation anxiety and that the Mother has now obtained satisfactory accommodation and living arrangements for the girls.
Ms S again said that these would not make a difference to the recommendation that she had made without the ability to make further exploration of the more current circumstances.
Ms S expressed a concern, given the Mother’s previous relocation to Queensland without the girls, as to whether she was settled in C Town and whether there were prospects of further moves. While it is true that the Mother has moved towns a number of times in the past, the evidence is not suggestive that the Mother would move away again. Ms S indicated that such a position was reassuring. She attributed some of the anxiety on the part of D to the move away by the Mother. The antidote to this anxiety, she thought, was to have a secure and predictable arrangement for the girls spending time with each of their parents.
Further, on the question of the effect of a change in residence, S accepted that a change from C Town to B Town, the town the girls previously lived in, with the school that D had previously attended, and with the maternal grandmother living close by meant that such changes in these circumstances were of less concern.
Ms S did not accept that, even if the Mother still constitutes a primary attachment figure for the girls, moving to be with her will be likely to alleviate the girls’ anxiety. She said that this was not necessarily so, particularly given the year that had elapsed since the assessment of that attachment. She said that the identity of the primary carer was not the key for dealing with the girls’ anxiety but rather the need for predictable, secure and consistent arrangements to help that anxiety.
Ms S accepted that strongly held views, if not followed for the children, bore some risk in that the girls might feel that their wishes were not acceded to. The result of this may be a short-term unsettled experience for the girls.
Ms S dealt with a number of matters arising regarding the relationship between Ms L and the girls. D spoke negatively regarding Ms L to Ms S. When asked whether she could think of anything bad at her Father’s house initially she responded that she could not. She then proceeded to say that sometimes Ms L smacked her (even though she was not allowed to) and then, when asked how often this occurred, said that it was most of the time, when her Father was usually at work. She said they were smacked on their legs and there had once been a big mark. Further she said that Ms L was not a good cook and, when asked to express her wishes said that she wished that Ms L never smacked them and that Ms L never came. She said that Ms L was getting worse. She expressed her concern to Ms S that if the Father and Ms L found out what she had said to Ms S that they would start telling lies saying that D wanted to live with them.
E spoke quite differently about Ms L. She told Ms S that she got on well with Ms L and that Ms L was nice to her.
The Father’s opinion was that the girls love Ms L. He observed that once the Mother had left the assessment process that the girls were “all over” Ms L. This was also observed by Ms S.
Ms S noted that there was an apparent conflict between the manner of the girls relating to Ms L and the complaints made by D about her. After making the above smacking complaint and saying that she wished that Ms L had not entered into the household, and that she be able to live with her Mother, D was later observed to be behaving in a very relaxed manner with both the Father and Ms L. Both D and E were “all over” Ms L which contrasted with what D had said. Rather Ms S described that it demonstrated a close, pleasant, affectionate, relaxed relationship.
To the degree that the girls presented a negative view about Ms L, Ms S thought it contrasted markedly with their warm and affectionate behaviour towards her when they were seen with her. Ms S thought that perhaps the girls saw Ms L as a rival for the place of their Mother and for the affections of their Father. Ms S observed that when D, E the Father and Ms L were together, E chose to sit on Ms L’s knee while D sat on her Father’s knee. They together shared interest in the charm bracelet Ms L wore, that they had bought a new charm for her and appeared very relaxed with both Ms L and the Father.
Each of the girls expressed to Ms S that they wanted to live with their Mother. D explained that she wanted to live with her Mother because they got to watch lots of movies and stay up late sometimes before they had to go back to their Father. Further, in talking about the Father, D said “they made a deal together and mum said I’ll be back and when I’m back I’ll get the kids back” and that the Father had not “played his part”. She also complained that the Father had called the police on the Mother on three occasions and that she was really sad when she went back to her Father’s place. E also expressed that she wanted to live with her Mother. The specific context of this was E being upset at her Mother leaving during the assessment process. It is unclear whether the direct upset affected E’s comments.
The Mother accepted to Ms S what was asserted by the Father that the girls get to watch movies at night at the Mother’s home and stay out late sometimes before being returned to the Father.
Importantly Ms S noted that D scored in the clinical range for anxiety.
Ms S assessed D as having her strongest current attachment, at the time of the assessment, with her Mother, saying that she “derived the feelings of self-worth from her perceptions of her mother’s regard for her”. At the same time she was mostly “positively involved with her father”. Ms S thought that “both children impressed as attached to both of their parents although, given what had happened recently, they were insecure about their relationship with their Mother and anxious about when they would see her again”. It should be noted that the girls had just spent three weeks with their Mother shortly before this assessment process. Ms S thought that the Mother’s leaving of the girls for an extended period while she moved to P Town, without seeing them, “would have aroused a great deal of fear and anxiety for the girls that both their parents might abandon them”. She thought that the anxiety from this “was reflected in D’s test results” and in “E’s anxiety about her mother on the day of the interview”.
Ms S came to the recommendation that the girls should remain living in their Father’s care and see the Mother for periods on three weekends out of four along with half of each school holidays. She thought that “the girls seemed settled in their Father’s care and their school performance and attendance has reportedly improved.” Ms S accepted that the performance of the children in the classroom could be a reflection of stability and security that they have in the home environment and could act as a real indicator of when there was a problem in the children’s homes. However, it should be noted that the evidence did not sustain that there was a deficiency in school attendance or performance on the part of them while in the care of their Mother.
S thought that the wishes expressed by the girls “reflect their anxiety about their previous separation from their Mother and might well be allayed by regular contact”. It should be noted that there has been regular contact between the girls and their Mother in the year since this report was prepared.
Discussion and principles
The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this part are to ensure that the best interests of children are met by:
a.ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c.ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d.ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a.children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b.children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c.parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d.parents should agree about the future parenting of their children; and
e.children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In the light of the objects and principles, in order to determine what is in a child’s best interests, the court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC.
In doing this the court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation.[4]
[4]U & U (2002) 211 CLR 238
The court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.
If an order is to be made for equal shared parental responsibility then the court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles[5] as “the careful exercise of a structured discretion to determine the appropriate order to be made”. That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.
[5] (2007) FLC 93-343.
In this case both of the parents sought an order for equal shared parental responsibility. This speaks strongly in favour of the idea that such an order is in the best interests of D and E. Even if the presumption was rendered inapplicable, this agreement between the parents along with the history of significant cooperation that has been set out above means that despite the problems that have occurred between the parents, an order for equal shared parental responsibility is in the children’s best interests and will promote the children having a meaningful involvement of both of their parents in their lives.
Such an order, pursuant to s 65DAC will require the parents to make a genuine effort to make joint decisions about major long-term issues and will require them to consult with each other about major long-term issues. But for the issue as to where the children live, which is the subject of these proceedings, it may be anticipated that the parents will be able to do this.
By their joint case summary and issues in dispute document the parties set out a number of factual matters that they say are important considerations in determining what is in the best interests of D and E. As noted above, proper account must be taken of these matters, although in taking them into account the court cannot be diverted from its obligation to determine the best interests of D and E in accordance with the Act.
In order to give proper consideration of the matters identified by the parties they are extracted below and a discussion of the relevant s 60CC considerations is set out amongst the matters identified. In doing so it is useful to recall that the key dispute between the parties is whether or not it is in the children’s best interests to live with her Mother in B Town, or Father in C Town.
Joint Case Summary & Issues in Dispute[6]
[6] Filed on 6 June 2017
The matters identified in the parties’ Joint Case Summary and Issues in Dispute document are set out below in full in italics, to differentiate those matters identified from the consideration of those matters which is not italicised.
2. The issues in the case are as follows:
a.whether the children should continue to live with the Father in [C Town], or change their place of residence to live with the Mother in [B Town];
b.Under section 60CC(2)(a), whether the Father can maintain a meaningful relationship with the Children if Orders were made for a change of the Children’s residence, and the likely effect of the Children’s relationship with the Father if they are permitted to live with the Mother; conversely, the likely effect of the Children’s relationship with their Mother should they be permitted to remain living with the Father in [C Town].
Neither party presented evidence or a case to suggest that a meaningful relationship would not be maintained under the orders sought by either party. Each of the parties’ proposals provided for the girls to have frequent weekend time with the other parent. The Father’s proposal was, during term time, each second weekend with the Mother. The Mother’s proposal, during term time, was at a higher frequency, such that the girls would spend time with the parent they were not living with on the first, third, fourth, sixth and seventh weekends of the term.
Each of these proposals would provide the opportunity for meaningful relationship and the benefits of meaningful relationship, although the nature of the relationships would change depending upon which parent the girls lived with.
That is, neither of the proposals would prevent the girls maintaining a meaningful relationship with both of their parents.
a.under s 60CC(2)(b):
i.Whether the Father poses a risk to the Children by virtue of drug use and the need to protect the Children from such drug use;
This matter is dealt with previously in the judgment. In the context that the Father has a history of cannabis use commencing at the age of nineteen, and although he has had clean periods he has relapsed and used contrary to his representations to the Single Expert, the children may be exposed to cannabis use within his household. However, given the Mother’s concession regarding the children being safe in his home, this does not rise to the level of a safety risk in his household. Even absent that concession, the evidence is not such as to demonstrate a significant risk to the children by virtue of potential drug use on the part of the Father.
i.(M) whether or not the Children are likely to suffer any psychological harm in being separated from their Mother, and the need to protect the Children from such harm;
(F)or, in the alternative, whether or not the children are likely to suffer any psychological harm in being separated from their father and the need to protect the children from such harm.
As set out above, neither parties’ case suggested that the children would have less than substantial and significant time with the other parent. Any question of harm by separation falls to be determined in that circumstance. The key issue identified by the Single Expert in relation to psychological harm, related to dealing with the anxiety suffered by the girls flowing from the Mother’s move to Queensland, and the consequential insecurities that they have suffered in their relationship with her. The key antidote to this, as explained by the Single Expert, was a stability of arrangements for the girls spending time with the Mother, rather than necessarily an order for the girls to live with the Mother. This may in turn impact on the form of orders for spending time with the Mother to ensure that they are regular and readily predictable for the girls, wherever the primary residence might be. The fact of separation from a parent in the context of orders for spending substantial and significant time with that parent has not been identified as likely to cause any psychological harm to either of the children.
i.(F) the effect, if any, on the accommodation arrangements when in the care of the mother.
This matter related to the adequacy of accommodation provided by the Mother. By the completion of the evidence this did not remain an issue, the criticisms of the Mother’s care arrangements or accommodation having fallen away.
a.i. (M) under s 60CC(3)(a), the degree of weight that the Court should place on the views expressed by the Children that they wish to live with their Mother;
(F)the degree of weight that the Court should place on the views expressed by the Children that they wish to live with either the mother or father.
As stated in Bondelmonte v Bondelmonte,[7] children’s views are but one consideration of a number to be taken into account in the determination of a child’s best interests. The weight to be ascribed to a child’s views may vary depending on a number of factors, including the child’s age, maturity, and their level of understanding as to the long-term implications of separation from a parent or siblings.
[7]Bondelmonte v Bondelmonte (2017) 341 ALR 179 at [34]-[35].
The Mother says that the girls have expressed to her their desire to live with her. The Father says that the girls expressed to him both a desire to live with their Mother and also a desire to live with him.
Both of the girls expressed to the Single Expert the wish to live with their Mother. D’s expression of the basis for the view was concerning. Each of the matters of concern relates to the reasons expressed by D. The first is the expression of the preference based on watching movies and staying up late at the Mother’s home. This is not indicative of a maturity of thought, or appreciation of the effects of a change to live primarily with the Mother. It indicates a preference, but not in a manner that should attract weight.
The second was D’s commentary on the Father having reneged on a deal with the Mother for her getting the children back on her return. This is indicative that in some manner D has been exposed to commentary on the dispute between the parents. The evidence does not establish how or when this might have occurred. It does not reflect the reality of the arrangements between the parents which involved a review as to what should happen. D’s judgment between her parents does not constitute, in this case, a solid reason to rely upon her view.
The third reason related to the Father having involved the police by calling them on the Mother, presumably in relation to the withholding by the Mother outlined above. As noted above, while it may be understood why a party may call the police, this was bound to be deleterious to the children, should they be exposed to the police attending. That one trusted parent, the Father, has called the police on the Mother has had lasting effects for D. However, her judgment on this issue does not constitute a solid reason to rely upon her view.
The significance of D’s expression of her view is further ameliorated by the disconnect between what she said about Ms L and the displayed nature of that relationship. While D made negative comments about Ms L, this was not what was seen in their interrelating by the Single Expert. It calls into question whether what D says reflects the reality of the situation.
While there are reasons to limit the weight placed on D’s expression of views, it remains that she has expressed and clearly expressed her view. Her expressed view that she wants to live with her Mother still carries weight in the consideration of what is in her best interest, albeit reduced weight.
E’s expression of view, being to live with her Mother, was undermined by the context in which it was expressed, being thought by the Single Expert to have been impacted by the dynamic of the assessment process, in particular by the departure of the Mother.
While Exhibits A3 to A5 represent more current expression of views, they take the matter no further in terms of the weight to be placed on the views, other than to identify that the expression of those views extended well beyond the time of the interview by the single expert.
The views of each of the girls should be accorded limited weight, despite the observation of the Single Expert that failure to comply with the children’s views has the potential to leave them feeling as though they had not been heard, and leaves open the potential that they may be unsettled for a period.
ii.(F) under s 60CC(3)(b), the weight the Court should give to the children having lived with the father since January 2016; and
The girls have experienced a number of major changes in their care and living arrangements across their lives. As set out above, they lived with both parents, then with the Mother in B Town, with their siblings. They then moved to C Town to live with the Father and ultimately with Ms L when the Mother moved to Queensland at the start of 2017. Since her return they have spent regular time with her in B Town while remaining with the Father in C Town. The Mother’s proposal would see a reversal where they would live with her in B Town.
This would constitute the fourth major change in living arrangements from the point of the end of the parties’ relationship. It would be ameliorated to some extent in that B Town is familiar, with familiar schooling, and it would be with their Mother. Nonetheless it forms yet another significant change.
iii.(F) the weight the Court should give to the close involvement of the paternal grandmother’s care of the children on a Wednesday and Thursday evening each week.
This is a factor under s 60CC(3)(b) and also a matter identified in the principles. In the Father’s primary care the girls have the benefit of frequent involvement on the part of the maternal grandmother. It appears unlikely that they would lose her involvement should they live primarily with the Mother, but that involvement would be different, and less. At present they have a regular involvement of the grandmother in their school day lives that would necessarily abate with the change sought by the Mother.
iv.(F) under s 60CC(3)(c), the extent to which the mother failed to take the opportunity to participate in making decisions about issues due to the mother’s failure to involve herself in mediation, in her relocation to P Town and her failure to regularly communicate with the father and the children while the children have been in the father’s care.
This is a matter that overlaps significantly with s 60CC(3)(f) and is more conveniently dealt with there.
e. Under s 60CC(3)(ca):
i.(M) the extent to which the Father has failed to fulfil his obligations to the Children by virtue of his drug use; and
ii.(M) whether the Court should call into question the Father’s insight and judgment;
iii.(F) the weight given by the Court to the mother’s failure to fulfil her obligation to maintain regular and ongoing time spent with the children since January 2016 and whether those failures should call into question the mother’s insight and judgment.
It is not clear how these matters falls within s 60CC(3)(ca). This consideration is concerned with the maintenance of a child. These matters more readily fit into the consideration at s 60CC(3)(f).
f. Under s 60CC(3)(d):
i.(M) the likely effect of any changes in the children’s circumstances, including the psychological and emotional impact on the children if the mother’s proposal is not granted;
This consideration gains its greatest importance in relation to whether a move will have the effect of relieving the anxiety experience by D and E. That anxiety was identified by the Single Expert as having its causes in the Mother’s move to Queensland without the girls, resulting in insecurity on their part as to the nature of the relationship with the Mother and, consequently, insecurity as to whether she might leave again.
The Single Expert’s view was that the remedy to this anxiety was not necessarily found in a change to live with the Mother, but rather in having predictability, regularity and reliability in the time that they spend with the Mother.
That is, if the Mother’s application is not granted, the amelioration of the anxiety could still be achieved by having such an arrangement to spend time with the Mother as described above.
i.(F) the likely effect on the children in the event they are placed with the mother in respect of the children’s regular routines as to meals, education, healthcare, extracurricular activities and consistent bedtime routines and the impact including psychological and emotional if the children are placed with the mother.
By the end of the hearing, the adequacy of the Mother’s practical ability to care for the children no longer remained in issue, it having been conceded that the criticisms of her care arrangements could not be sustained (as outlined in the series of assumptions put to the Single Expert).
g.Under s 60CC(f), which parent is best placed to care for the children and provide for the needs of the children;
The key issues identified in relation to the Father’s capacity flow firstly from the questions relating to his drug use. As indicated earlier the concerns do not arise to a level of significance in relation his capacity to care for the children. The second issue arises in relation to his reliance upon Ms L in relation to care for the children and provision of their needs. An issue has been identified of the exposure to the Father and Ms L shouting at each other and also the use of physical chastisement upon the children by Ms L (being a use of physical chastisement that was understated by Ms L). Further, Ms L has conceded that she initially discouraged the children from speaking about the Mother in her presence. These matters detract from the capacity of the Father working in concert with Ms L to care for the children. However, while these represent some deficits, the Father’s involvement of Ms L in the care of the children may also be seen as a strong positive. This can be seen in the nature of the relationships that were observed by S between the girls and Ms L. Unlike what they said of Ms L, what they demonstrated was warmth and affection and ease. Further, Ms L has demonstrated a strong commitment to caring for the children. She has a structure of work arrangements which allow her to provide care when the Father is not available due to his work commitments, and she has further structured her work commitments so that she is able to enjoy the children’s involvement in sporting and other activities on the weekend. These are matters to the considerable benefit of the children and even if they were not thought to fall within s 60CC(3)(f), fall into s 60CC(3)(b) and (m).
The key issue identified in relation to the Mother’s capacity flows from her decision to move to Queensland as described above. To some degree, problems with this decision are ameliorated by the fact that the children were left with their Father, whom the Mother obviously was able to entrust with their care. However, the move has had significant ramifications for the emotional well-being of D, as identified by S. S sees this as the genesis of anxiety on the part of D and E, particularly an anxiety in relation to abandonment.
At the same time it may be anticipated that the decision to move to obtain qualifications had the potential to have positive impact not only on the Mother’s lives but on the children’s lives.
While the risk flowing from this decision that impacted on the Single Expert’s opinion was a concern of further moves by the Mother, the evidence does not establish any likelihood of such. The more significant matter is that it constitutes a significant instance of poor judgment on the part of the Mother in relation to the welfare of the children.
As noted in closing submissions, in no sense is it a part of the Court’s discretion to punish the Mother for taking the step of moving to Queensland without the girls. Rather, the issue is what it communicates about the Mother’s judgment about best interests.
h.i. (M) whether or not there was an agreement between the parties as to the care or temporary arrangement concerning the Children while the Mother relocated to Queensland; and if so, what was the nature and scope of the agreement;
ii.(F) whether or not there was an agreement or the opportunity to reach an agreement between the parties as to the care concerning the children prior to the mother relocating to Queensland.
By the end of the evidence the parties agreed that the arrangements were to be subject to a review in 6-12 months.
j.What weight, if any, should the Court give to the findings and recommendations made by the Family Consultant;
k.i. (M) whether the Family Consultant might have had a different recommendation, should the Father have disclosed his charge for the offence “drive with illicit substance in system”;
ii.(F) whether the father knew prior to his interview with the Family Consultant that he had, or would be charged with the offence “drive with illicit substance”.
l.i. (M) what weight, if any, should the Court give to the father’s evidence and credibility given his ‘guilty plea’ to the charge drive with illicit substance in system.
In considering the weight that should be given to the Single Expert, it is important to remember that she consider the matter to be reasonably finely balanced. The Single Expert adhered to her initial view that the children should remain living with the Father, in the context of it being a finely balanced recommendation, despite a number of the factual underpinnings that she initially relied upon being removed. This would point to a conclusion that the recommendation was even more finely balanced.
Where the Single Expert’s opinion attracts more considerable weight is in relation to assessments of the children’s views as set out above, for assessment of their relationship with Ms L as set out above and her observations as to parenting capacity, again as set out above.
The specific matters relating to the use of cannabis have been canvassed earlier in the judgement in relation to the evidence of the Single Expert. As noted above, the Father’s representation to the Single Expert regarding the lack of use of cannabis when he had used, which was demonstrated by the criminal proceedings damages his credibility, in particular in relation to the use of cannabis, and also calls into question what his use might actually be. It does not do so to the extent of establishing a risk of significance to the children.
ii. (F) what weight should the Court give due to the Court not proceedings to a conviction of the father to the charge “drive with illicit substance” but chose to place the father on a 18 month good behaviour bond.
The conviction demonstrates that the Father consumed cannabis, as discussed above. There is nothing to be drawn from the imposition of a good behaviour bond.
Conclusion
Having examined the matters identified by the parties, which fairly identify the s 60CC matters of importance within this case, it remains to consider what orders reflect the best interests of D and E.
Given that an order is to be made for equal shared parental responsibility it is necessary to consider whether or not there should be an order for equal time. Such an order can only be made if it is in the best interest of the children and is also reasonably practicable.[8] While the parties remain in B Town and C Town, an order for equal time is not reasonably practicable.
[8]MRR v GR
It does become reasonably practicable if the Mother were to live in proximity to the Father. This is expressed as one of her fall-back positions, but does not represent her primary position to the court. The parties consent to such an order being made to operate in the event that the Mother lives proximately to the Father. Under circumstances where it became recently practicable, such an order would be in D and E’s best interest. It would enable them to continue living with the Father and Ms L, with whom they have lived for a substantial period of time. It would enable consistency of schools and consistency of that living arrangement. Equal time would enable them to enjoy living with their Mother, as is more reflective of the views, although of limited weight, that they have expressed. An order for equal time would reflect their best interests and the terms of the Objects of part VII, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
However, unless the parents live in reasonably close proximity with each other, being the 30 minutes travel identified by the Mother in her fall-back position, such an arrangement is not reasonably practicable.
The orders contemplated by each of the parties provide for the children to spend time with the parent with whom they do not live on a substantial and significant basis. Such arrangements again reflect the best interests of the children by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
As to the structure of that substantial and significant time, the parties vary in their approach. The Father says that an order should be made for alternate weekend time, during term time, with the parent with whom the children are not living. The Mother seeks orders that provide a higher frequency so that on a number of occasions each term the children would spend consecutive weekends with the parent with whom they do not live. The single expert proposed two out of three weekends with the mother. The single expert’s suggestion was not adopted by either party.
While the advantage of the Mother’s proposal is that the children would spend greater and more frequent time with the parent with whom they do not live, it carries with it a risk of uncertainty for the children that does not arise to the same degree with an alternate weekend pattern as suggested by the Father. Given the history of the care of the children, and the importance of regular arrangements for time with the parents, given the anxieties experience by the children, a structure with greater regularity is preferable.
The question as to who the children should primarily live with remains. As noted during the trial, this is a finely balanced case, with reasons that would justify making orders for the children to live primarily with either parent. Those matters have been canvassed above in the assessment of the s 60CC considerations identified by the parties.
In reaching a conclusion, I do not place significant weight upon the views expressed by D and E. The risks in relation to the Father’s potential relapse into cannabis use also do not receive any significant weight. While the question of physical chastisement by Ms L does attract some weight, so too does the nature of the relationship observed by the Single Expert, along with the efforts and commitment that she has demonstrated towards E and D, the latter outweighing the former.
While the Mother did not appreciate the consequences of her move upon the children, displaying in that instance a misjudgement in relation to the well-being of the girls, no pattern emerges to suggest that this is likely to be an ongoing feature of her parenting.
Additional matters that do carry weight are that the living arrangements for the girls were well settled by the time of the trial. They involved arrangements that allowed close involvement by the paternal grandmother, as well as settled care arrangements between the Father and Ms L. Although a change in primary home and school would be to the familiar, weight attaches to this being yet another change in the girl’s lives, following a series of significant changes.
The balance falls to D and E living with the Father.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 January 2019.
Associate:
Date: 18 January 2019
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Family Law
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