Garth and Hope
[2008] FMCAfam 104
•24 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARTH & HOPE | [2008] FMCAfam 104 |
| FAMILY LAW – Children aged 11 & 9 – mother lives in Adelaide – father lives in Brisbane – trial of children living in Brisbane – undertaken in final term of 2007 – whether trial should be extended – evidence of family consultant. |
| Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA |
| Garth & Hope (No.1) [2007] FMCAfam 677 |
| Applicant: | MR GARTH |
| Respondent: | MS HOPE |
| File number: | ADM 3970 of 2006 |
| Judgment of: | Brown FM |
| Hearing date: | 21 January 2008 |
| Date of last submission: | 21 January 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 24 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Baston by direct brief |
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: | Mr MA Boehm |
| Solicitors for the Respondent: | Christopher Ganzis & Co |
| Counsel for the Independent Children’s Lawyer: | Mr G Hemsley |
| Independent Children’s Lawyer: | Mr G Hemsley |
ORDERS
That until further or other order:
The parties have equal shared parental responsibility for the children [Q] born in 1996 and [B] born in 1998.
The orders of the Family Court made on 8 March 2005 be suspended and order 10 of the orders of 28 September 2007 be discharged.
The children live with the father in Brisbane.
The children spend time with the mother during school holidays as follows:
(1)In Adelaide between 20 March 2008 (Maundy Thursday) and 24 March 2008 (Easter Monday);
(2)In Adelaide between 5 April 2008 and 13 April 2008;
(3)In Adelaide between 28 June 2008 and 8 July 2008; and
(4)In Adelaide between 20 September 2008 and 30 September 2008;
With the father to be responsible for booking and paying for all the children’s necessary costs of travel pursuant to this order but not the costs involved of the children being accompanied and advise the mother in writing of the arrangements for such travel 14 days in advance of the date of departure for the travel.
The children spend time with the mother in each Queensland school term as follows:
(1)In Brisbane for one weekend from Friday afternoon until Sunday evening on the third weekend of each term.
(2)In Adelaide for one weekend in the second and third Queensland school terms from Thursday afternoon until Sunday evening the weekend to be agreed between the parties and failing agreement to be the sixth weekend of each school term; and
The father to be responsible for the mother’s costs of travel to Brisbane but not her accommodation expenses to see the children pursuant to order 5(a) hereof.
The mother be responsible for the children’s costs of travel pursuant to order 5(b) hereof.
The children spend time with the mother in Queensland from 10:00am on Sunday 27 January 2008 until 5:00pm on Tuesday 29 January 2008 with handover and collection to be agreed between the parties.
The children be permitted to fly unaccompanied for any period of travel envisaged by these orders. The parties to each give the other 14 days notice in writing of the necessary travel arrangements involving the children and advise the other when the children have departed from the relevant airport and the time of their anticipated arrival in either Brisbane or Adelaide.
The mother have liberal telephone, email and text message communication with the children when they are in the father’s care but in addition telephone communication at one specific time each week the time to be agreed between the parties and failing agreement on each Wednesday between 6:00pm and 7:00pm Queensland time.
The father have liberal telephone, email and text message communication with the children when they are in the mother’s care.
The father’s undertaking of 28 September 2007 be discharged.
The further final hearing of this matter be scheduled for 9 and 10 October 2008 at 10:00am.
Dr Savage, the family report writer herein update the family report during the period the children are in the mother’s care pursuant to order 4(d) hereof and in particular interview each of the children concerned and ascertain any further views they may have in regards to future arrangements for their care.
The Independent Children’s Lawyer explain the import of the orders to the children concerned in any manner he deems appropriate, which may include the assistance of Dr Savage if he deems appropriate in either the end of the first or second term holidays.
Both parties file and serve any further affidavit on which he or she seeks to rely on at trial on or before close of Registry filing on 26 September 2008.
The reasons for judgment are to be transcribed and provided to each of the parties.
IT IS NOTED that publication of this judgment under the pseudonym Garth & Hope is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM 3970 of 2006
| MR GARTH |
Applicant
And
| MS HOPE |
Respondent
REASONS FOR JUDGMENT
This morning I deliver judgment in the matter of Garth and Hope. Due to constraints of time, the reasons are being delivered orally. A decision needs to be made about arrangements for the care of the children concerned prior to commencement of the school year for 2008.
These reasons for judgment should be considered in conjunction with the reasons provided in this case on 28 September 2007.[1] On that date I decided that there should be a trial of the parties' two children, [Q] aged 11 and a half, and [B] aged a little over nine, living with their father in Brisbane for the final school term of 2007.
[1] Garth & Hope (No.1) [2007] FMCAfam 677
The trial came about as a result of recommendations from Dr Savage, a family consultant, who was asked to interview [Q] and [B] in August of 2007. Following evidence from Dr Savage and each of the parties, in August of 2007, I accepted:
·the children had a secure and loving relationship with each of their parents;
·both Mr Garth and Ms Hope were capable and insightful parents;
·in August of 2007, and indeed before, both children, particularly [Q], had raised the prospect of living with their father in Brisbane for periods other than in school holidays.
·at this stage [Q]'s views about wanting to live in Brisbane, on a more permanent basis, were more concrete than [B]’s were, who was more ambivalent about the issue.
·Dr Savage had suggested the prospect of a trial move to the children, who had accepted the proposal with alacrity.
In particular, I accepted Dr Savage's recommendation that it was important for [Q] and [B] to be given an opportunity to experience for themselves what life would be like living with their father in Brisbane, for more extended periods, in the mundane reality of the school term, which would be qualitatively different to the relaxed times of holidays, particularly as this was what the children had said they wanted, albeit [Q] more so than [B].
Dr Savage recommended that she should speak with the children again, in December of 2007 and ascertain what their views were then, after they had the experience of living with their father. The trial has now been completed. Dr Savage has interviewed the children again. She now recommends that the trial should be extended until September of 2008 and the views of the children re‑canvassed by her around that time.
In general terms, Mr Garth is content to accept this recommendation. Ms Hope is not. She contends the trial has been had and has produced no clear result. The children, now more so [Q] than [B], remain ambivalent. In such circumstances, she says that consideration of the children's best interests should dictate that they should now revert into the longstanding arrangements, whereby they live predominantly with her and spend regular periods of time in the school holidays with their father, as well as some more irregular periods on weekends during school terms.
In August of 2007, Dr Savage considered that although [Q] was then strongly in favour of moving to Queensland, his more reserved nature may mean he would experience greater difficulty than [B] coping with the trial. On the other hand, she thought [B], whom all agreed was an ebullient, confident child, was likely to take any change in her stride.
From Dr Savage's perspective, some of the predictions she has made in August 2007 have come to pass. The trial has not produced a clear and unequivocal result. The children have not clearly said they want to return to their mother's care in Adelaide nor have they unreservedly said they want to remain in Brisbane. The dilemma and weight of the decision remains for both the children, and so for the parties themselves and ultimately the court.
The central questions for the court, at this stage, are:
·What weight is to be given to the views expressed by the children, both in August of 2007 and more recently in January of 2008?
·Coupled with this are considerations of the level of insight they each have into the consequences of extending the trial. Are they merely postponing the evil hour or trying to placate one or other of their parents?
·Are there any unacceptable risks or dangers for the children, if the trial is extended?
·If the trial is extended, will the children become the axis upon which the dispute between their parents turns and will this necessarily exacerbate and extend the stress which they currently feel. In essence, will the trial unfairly extend the period of their dilemma?
·If, after a period of nine months or so, the children remain unable or unwilling to express a definitive view, will the additional trial have proven to be an unwarranted and rash experiment, so far as the children are concerned?
The matter came back before me on 21 January 2008. At this stage I heard further evidence from Dr Savage and she was cross-examined by each of the parties.
By this stage there was also an additional party to the proceedings.
On 28 September 2007 I ordered that the children be independently represented in the proceedings. I had hoped that the independent children's lawyer would have had an opportunity to confer with each of the children and explain his role to each of them. This has not proved to be possible.
At this stage, I have no reason to revise my earlier finding that the parties should have equal shared parental responsibility for the children concerned. [Family Law Act s.61DA] Given the distance between Adelaide and Brisbane, obviously an equal time or substantial and significant time arrangement is impracticable. The children must live more with one parent than the other. [section 65DAA]
Given the strength of the relationship the children have with each of their parents, both [Q] and [B] have the potential to have an equally meaningful relationship with both of their parents. There are no considerations of family violence, neglect or abuse in this case. [section 60CC(2)(a) and (b)]
My assessment of Mr Garth and Ms Hope accords with that of Dr Savage: they are both good and insightful parents, who are capable of providing for the needs of the children in every relevant sense of that word - educational, emotional, psychological and physical - to a high standard of competence, albeit they are likely to supply those needs for the children in different ways, as a result of their different personalities and backgrounds. [section 60CC(3)(f) and (i)]
Given the unviability of a shared parenting regime – the optimal outcome envisaged by the applicable legislation, and given the equally assessed parental competencies of the parties concerned, Dr Savage considered that the views of the children concerned should be given some level of pre‑eminence in the determination of the case. [section 60CC(3)(a)]
This was particularly so given her assessment that it could not be said that the children were more closely attached to one parent than the other. As a result of previous care arrangements in respect of the children, it seems clear that the children have a close and abiding relationship with both of their parents. I accept both of these assessments.
Once the court embarks upon the exercise of consulting with children about their views, and more importantly creates an expectation in the children concerned that their views are meaningful and will be given weight, it is important, I think, that the exercise of consulting with children is not undertaken in a tokenistic or mechanical way or, perhaps equally important, that the children concerned do not perceive it as such.
Such a process of consultation will inevitably create dilemmas. Choice is not necessarily clear cut but invariably involves the balancing of opposing or contrary considerations – for children just as much as adults. In addition, preferences may change over time.
The expression of choice has created dilemmas for these children.
How could it not, given the love that the children have for each of their parents and the fact that the children want to be with both of their parents, an outcome which is not possible.
In addition, the children are aware of the painful emotional consequences, for one or other of their parents, in the expression of any preference they may have. However, I agree with Dr Savage's assessment that the issue of the children's views should not be avoided or downgraded in some way merely because it raises difficult or inconvenient issues, either for the children involved or the court.
The court should not necessarily pre‑empt the children being involved in the decision-making process, when the parents concerned are incapable of conducting it, because such a process creates tensions and dilemmas for the children. Very often such tensions and dilemmas are part and parcel of life.
At the same time, the court should avoid placing the children, as it were, in the metaphorical crucible or heat of the decision-making process, if this of itself will constitute a damaging experience for them. It is a truism, but true nonetheless, that adults should make decisions about children not vice‑versa. Again it is a question of balance.
Dr Savage conceded that some children may find being part of the decision‑making process about them burdensome and may deal with that burden in any one of a number of ways:
·they may simply state that the issue is too hard and that the court or their parents should decide the issue;
·they may deal with being placed in such a role by avoidance of that role or some other form of obfuscation;
·indeed they may take the path of least resistance in some way and just go along with what seems easier to all concerned.
Before turning to Dr Savage's report and evidence in more detail, I continue to consider, as I did in September of last year, that the following additional considerations, regarding the children's best interests as set out in section 60CC(3), remain pivotal in this case. They are the considerations set out in subsections (a), (d) and (l).
Of less relevance, but still applicable are the considerations set out in subsections (3)(c) and (i).
Dr Savage's impression was that Mr Garth was genuine in his concerns about the children and would attempt to respond to their needs flexibly, including returning them to their mother, if they became distressed at being separated from her. I accept that this is so, but how that expression of concern would play out in reality is a matter that is difficult for me to know.
The antipathy the parties have for one another is apparent. In such circumstances, both are likely to have some level of difficulty in encouraging a relationship between the children concerned and the other parent. [section 60CC(3)(c)]
My impression is that this difficulty is perhaps more pronounced in the case of Ms Hope than Mr Garth. Dr Savage said as follows, in her report:
“While [Ms Hope] has sometimes found it difficult to put her own hurt aside and to separate her own relationship with [Mr Garth] from that of the children's relationship with their father, she has also tried hard to avoid placing the children under undue pressure about living with her or to influence them in their decision.”[2]
[2] see Family Assessment dated 2 January 2008 at paragraph 45
I accept that is so and I also accept Dr Savage's evidence that the mother has tried to hide her obvious and strong feelings from the children concerned. Obviously the trial has been significant, not only for the children but also for Ms Hope herself, who acknowledges it created a significant level of stress for her.
I accept that she was devastated emotionally by the decision which I made in September of 2007. However, it seems from what Dr Savage has said and what the parties have reported to her that the day-to-day mechanics of the trial seem to have gone well, from the perspectives of both parties.
Ms Hope said to Dr Savage that the children seemed to be perfectly happy with the trial and they both seemed well looked after.
She thought they did not look deprived; had not been abused; and did not seem distressed. Importantly, Ms Hope acknowledged that
Mr Garth had been able to provide a good quality of care to the children.
Mr Garth, whom one would expect would be favourably disposed in respect of the trial, said that he thought that both children had settled in well to their new home, school and routine. In particular, he said that [B] was adjusting well and had made friends in Brisbane.
To his credit, Mr Garth did not gloss over some of [Q]'s adjustment difficulties, describing him at times as being withdrawn and clingy and spending a lot of time on his computer, which is apparently something of great interest to him. Mr Garth also said that, at times, [B] had been a little subdued, particularly after the first visit she had had with her mother and when she had received news that some of her friends in Adelaide were missing her.
Given the magnitude of the change, which the trial envisaged and her assessment of [Q]'s temperament, Dr Savage was not unduly concerned with these reports that she received from the parents concerned.
I now turn more specifically to the considerations I must consider pursuant to section 60CC of the Family Law Act, and dealing with the considerations which fall under section 60CC(3)(d) first.
Dr Savage considered that the children would be able to cope with any of the possible permutations of the case at this stage. These permutations include:
·a further trial, as Dr Savage recommends;
·the children returning to the mother and the essential reinstatement of the earlier orders;
·the children remaining permanently in the predominant care of their father in Brisbane and seeing their mother during school holidays and any other times as may be arranged during school terms.
Dr Savage considered that the children would be able to cope with any of these outcomes because, for them, each such outcome involved no uncomfortable or unknown quantities. Whatever happened, the children would remain in the care of a loving and capable parent and would be able to maintain a meaningful relationship with the other parent concerned.
I think that although the case is a difficult one, I must be careful not to overstate the pitfalls for the children concerned. In spite of all the tensions that surrounded them, it was Dr Savage's assessment that [Q] and [B] are happy and well-adjusted children, who are travelling well, emotionally, at present.
There is no evidence of failure at school for either of them. [B] has made friends easily and is described as a social butterfly. [Q]'s adjustment difficulties are likely to be a product of his temperamental reserve.
Mr Hemsley attached significance to Dr Savage's acknowledgment that a protraction of the trial was likely to create what was described as another stability for the children, which the longer it endures the harder it will become to displace. Obviously this is so.
In such circumstances, Mr Hemsley was concerned that there was a significant possibility that the matter would be no further forward in six or nine months' time, and the court would have failed to learn from history, and both it and the children would remain fixed on the horns of the same dilemma, with the children being perplexed by the weight of the choice which remained unresolved.
Mr Hemsley urged the court to conduct some assessment of the risk this outcome might entail for the children concerned. By implication, Mr Hemsley considered it likely to be significant, particularly in terms of the prolongation of the level of tension on the children concerned.
Given her assessment of the capabilities of both parents, Dr Savage did not see the matter in terms of risk. From her perspective, none of the outcomes involved the possibility of palpable harm occurring to the children. In addition, she assessed the children as being able to indicate a desire to overturn any status quo, if their views had coalesced one way or the other.
She did agree, however, that the process of consultation could not be left indefinitely open-ended and subject only to the children's whim. Rather she thought the children needed to know that a decision would be made at some specific time in the future, with or without their input.
To this end, she thought that the independent children's lawyer could perform a useful role. I agree with this assessment. Ideally, the independent children's lawyer can inform the children of the further mechanics of any additional trial, and how they will be consulted in future and how the decision-making process will be concluded.
It is also, I think, implicit in Dr Savage's second report that the children currently have some understanding of the implications of the extension of the trial and know that it is at least a possible outcome for them at this stage. To my mind this raises one of the significant benefits of the prolongation of the trial and, as a corollary, also raises one of the significant detriments of ceasing it at this stage.
In August of last year the children leapt on a trial with alacrity, according to Dr Savage. I accept her evidence in this regard. Again a trial has been mooted. At some level it seems that this has occurred at the instigation of the children, thus it seems the process has created, in the children, an expectation of such a trial.
Dr Savage saw some possible adverse implications for the children, if they perceived they had expressed a view and it had in effect been ignored. In Dr Savage's words: what is the point of consulting the children, if they then feel they are disregarded.
She also perceived some dangers, if the trial she envisaged in August of 2007 went off half-cocked, as it were, by which I mean that the children did not feel that the trial had been long enough for them to be able to form an informed view of what they wanted.
When all is said and done, Dr Savage indicated that the period of a school term is not a long period, nor, I consider in the scheme of the children's greater development, is nine months to a year. I accept, however, that to Ms Hope the period is an eternity. It is also a very long time to children who are eleven going on twelve and nine going on ten years of age.
Dr Savage's view of the trial to date can be expressed as: so far, so good. Certainly Dr Savage herself could see no great problems in continuing the trial but some problems in prematurely ending it.
The issue I suppose I must guard against is that the children, particularly [B], have raised the issue of the trial to avoid the evil hour of having to make a final decision or to fudge in some way an issue which is unpalatable to them perhaps because they wish to placate one or other of their parents – in essence the children have reached upon a compromise, at this stage, to avoid having to make an invidious decision. In short, I must be careful that the proposed trial is not a pretext for something else and does really constitute a viable option based on the views of the children.
Accordingly, I must return to what I continue to consider is the central issue in the case: what are the views of the children, what weight should be given to them and what is influencing them?
The conduit for the examination of those views must be Dr Savage. She has a significant advantage over me. She has met and heard the children. have not. Accordingly, she is far better placed than me to form a more complex impression of the children and have more awareness of the myriad influences likely to be playing on them.
Dr Savage's role is a mixture of science and professional experience, but also of intuition – intuition informed by her direct, physical experience of the children.
This is particularly important when I bear in mind that the children themselves are likely to experience difficulty in articulating their views in a forceful or unequivocal manner. They are not advocates for themselves, nor should they be expected to be. This is as a result not only of their immaturity and lack of fully developed cognitive skills but also because of the difficulty inherent in the issue confronting them.
The issue does not have a clear-cut answer. However, I do not think that any of these difficulties mean that the question should not be posed to the children themselves. At the end of the day, the weighty decision fundamentally concerns and effects the children.
Notwithstanding their immaturity; the wish to protect them from parental conflict; the understandable desire to ensure that they do not have to make a decision which they may not want to make; and the underlying and fundamental principle that parents have responsibility for the children and the decisions which concern them; the children have a right to be consulted and influence the decision which affects them in a fundamental way.
As Dr Savage said, it is frequently the case that children can skilfully avoid questions they do not want to be asked. It would have been preferable, if the children had given an unequivocal answer at this stage - at the stage of the second report - but it would have been perhaps naive to expect them to have done so, given the difficulty the issue raises.
I have no reason to disregard anything I said in the earlier decision, at paragraphs 169 to 173, regarding the issue of the children's views.
For better or worse, it seems to me that the second family report has created in the children an expectation they will be consulted. It also seems to me that neither party has done anything to disabuse the children of this state of affairs.
Fundamentally, it also seems to me that the children themselves have not said they do not wish to be part of this consultation. This being so, the court must be careful not to render the consultation process it has inaugurated, either tokenistic or ineffectual.
This is Dr Savage's premise. It is her position that the situation of August‑September of 2007 warranted a cautious and limited trial. If it was unsuccessful, or the children's expectations in Brisbane were not met, it could be easily curtailed with no great harm done.
Although she did not explicitly state it in August of 2007, it has become her position that the limited trial should now be seen as a prelude to a deeper and more protracted inquiry into the children's views.
[B] reported to Dr Savage that living with her father had been "good" her new school was "okay" with the rider that she was "used to her old school more". When asked what she would like to do now, [B] said to Dr Savage that she would like to extend the trial of living with her father for a bit longer.
She expressed some ambivalence about the issue because she was not totally sure what she wanted to do because she loved both of her parents and wanted to live with them both. She said she did not really want to have to choose between her parents. However, she expressed a desire to live in the same place as [Q].
It seems clear that [B] has expressed some ambivalence about the issue. However, in expressing that ambivalence [B] said to Dr Savage that if she could stay living with her father for a little longer then she would be able to make a good decision.
It is unclear to me whether the issue of the trial being extended had been raised earlier, prior to the children seeing Dr Savage, by the children, with Ms Hope or in some other way.
In paragraph 22 of the report Dr Savage reports that Ms Hope told her that she thought it may be in the children’s best interests if the trial of living with their father was extended for a further nine months.
Ms Hope denies that this conversation occurred with Dr Savage, who was adamant that it did. At this stage of the proceedings, this is an issue I cannot resolve.
However, I think it is clear that [B] is in favour of the trial, but she has some reservations about it. I agree with Mr Hemsley that it cannot be said that hers is either an unequivocal or a ringing endorsement of the trial.
[Q] told Dr Savage that living with his father was "fun" and he had "enjoyed" living in a new environment. He also said that there was "nothing he had not liked” about living with his father. It seems from Dr Savage's evidence that [Q] was somewhat monosyllabic with Dr Savage and his conversation with her was not expansive.
When the fundamental and central question was put to him by Dr Savage, about what he wanted to do now, Dr Savage reports that there was a very long pause. Her impression was that [Q] was struggling with knowing what to say or to suggest next. His answer was that: he did not mind if he did the same thing as [B] or did something different.
Dr Savage said that [B] had told her that she ([B]) wanted to extend the time living with her father until September of next year and make a decision then.
[Q] indicated to Dr Savage that he also wanted to try living with his father a little longer but for a shorter period: only until about June or July of next year.
[Q] told Dr Savage that he had "missed his mother”. He was on the verge of crying when he said this but was trying to control his tears. [Q] said that he missed both his mother and his father, when he was away from each of them, and also missed his extended family who were in South Australia.
It is clear that [Q] is well aware of the difficulty of the position he is in. He wants an ideal outcome, which is impossible to achieve, given the geographical locations of each of his parents. Dr Savage is, I think, clearly describing an emotionally torn child in contrast to the more confident child of August last year. She described [Q] as "struggling with the decision".
However, this obvious struggle that [Q] is exhibiting did not dissuade Dr Savage that it was in both children's best interests to continue experiencing living with their father, in the concrete way her proposal envisages.
She conceded that it is a very big decision for the children to make and that, neither of them have rejected living permanently with their father, it was both sensible and relatively mature of them to seek more time in which to make the decision.
Certainly, when she saw them in December of 2007, Dr Savage did not think either child was ignoring the issue or attempting to avoid it.
Her view was that [Q] was a sensitive and introverted child who had found the adjustment to life in Brisbane more difficult than he had perhaps expected.
However, she noted that [Q] had not explicitly rejected the trial, when he had an opportunity to do so, albeit that he had acquiesced in what [B] had suggested, although he proposed a shorter trial than either she or Dr Savage. Nonetheless the period he came up with was a significant period and not a token one.
These matters brought Dr Savage to make the following recommendations:
“While there needs to be some final resolution in relation to this matter, it is also considered sensible to provide the children with a longer time to adjust to living in Queensland, pending the making of final orders. Extending the children's trial living arrangements with their father until September 2008, with the final report to take place in the September-October school holidays, would therefore appear a prudent way to proceed. In this way, arrangements could be made for the children to return to South Australia for the commencement of the new school year, if they decided they wished to return to live with their mother.”[3]
[3] see Family Report date 2 January 2008 at paragraph 52
Accordingly, she recommended formally as follows:
That the children [Q] and [B] continue to live with their father in Queensland.
That the children spend time with their mother:
·For one weekend from Thursday afternoon until Sunday evening on the third week of each school term with the father paying the costs of flying the children to South Australia and back to Brisbane.
·For one weekend from Friday afternoon to Sunday evening on the sixth weekend of the school holidays with the mother to visit the children in Brisbane and pay all costs associated with such a visit.
·For one week in South Australia in the first and third term of the school holidays with such time to coincide with the week that the mother’s partner’s childrens’ visit if possible. The mother is to notify the father at the beginning of the first term 2008 which week of each of the two periods of the school holidays her partner’s children will be visiting. The mother is to pay the costs of flying the children to South Australia and the father is to pay the costs of flying the children to Brisbane.
·For one week in the second term of 2008 with the visit to take place in South Australia and the mother to pay her own costs. The father is to notify the mother at the beginning of the first term 2008 which week of the second school holidays the children will be available.
The children be permitted to fly unaccompanied and that the parent responsible for putting the child on the plane notifies the other once the children are on the plane and the anticipated time of arrival.
That the restriction in respect to the father not seeking an adjustment in relation to child support be lifted.
That the father ensure that the children telephone their mother at a set time once a week as agreed between the parties and in the absence of such an agreement that this time be on a Wednesday evening between the hours of 6 p.m. and 7 p.m.
The children be permitted to contact their mother by telephone, e-mail or text message at any other time they wish.”
Obviously, if I accept Dr Savage's recommendations, this outcome will prolong the proceedings further. [section 60CC(3)(l)] This cannot be a good thing, coming after almost nine years of litigation, of one form or another. Dr Savage has said that the children are well aware of the dispute between their parents. How could they not be? It represents the constant background noise to their lives.
As I concluded in September of 2007, and so I conclude now, I am unsure how to prevent further litigation between the parties. Whatever is the outcome now it will be controversial. However, an emphasis on the views of the children, as Dr Savage recommends, would appear to be the most child-focused means of approaching the dilemma which this case throws up, although I anticipate there is likely to be controversy about what the children's views ultimately are.
Mr Baston, counsel for Mr Garth, asked me to conjecture about the emotional circumstances of the children, in the period before they saw Dr Savage in December. They had recently returned from Queensland, I suspect to a mixture of both relief and distress on Ms Hope's part. Mr Baston categorised this as an emotional maelstrom for the children and postulated that [Q] and [B] would have felt under enormous pressure, when they went to see Dr Savage.
In all the circumstances of this case, he submitted that it was inevitable that the children would display some level or other of adjustment difficulty and, had it been otherwise, this would have been exceptional.
From his point of view, what was significant was that both children had enjoyed their time with their father and had reported positive experiences of it, particularly the birth of their baby sibling.
It was clear to Dr Savage that the children had come to no harm from the trial. In Mr Baston's view this, when coupled with the children's views expressed in August of 2007, dictated that the trial should continue, and he commended Dr Savage's recommendation of a prudent extension of the trial. I accept Mr Baston's submissions in respect of the recommendations of Dr Savage.
Mr Hemsley is in a difficult position. He has come into the matter recently. As I have said, he has not had an opportunity to speak with either of the children concerned. He, I think, urges caution but, in a formal sense, he has not put forward a clear position.
In my view, the children's views remain pivotal. So far their experiences of living with their father have proved positive, with some inevitable adjustment tensions. In the absence of an explicit expression that they wish the trial to cease, it is my view that it should be prolonged. As Mr Baston said, each child should be given more time to come to a decision.
It would obviously have been preferable for the issue to have been definitely decided now but I do not see it as being unduly risky, in terms of the children's emotional welfare, for it to be continued. Certainly Dr Savage did not see it so.
The relationship the children have with their mother will remain strong and abiding. I do not think that this relationship will be eroded, if the trial is continued, particularly if the children have frequent opportunities - at least as frequent as the circumstances allow - to spend time with their mother.
For these reasons I intend to make orders essentially along the lines recommended by Dr Savage. In reaching this decision I acknowledge the pain and heartache it will inevitably cause Ms Hope.
The logistics of the court's diary dictate that it should be the longer trial envisaged by Dr Savage rather than the shorter one suggested by [Q].
It is appropriate that Ms Hope should spend more rather than less time with the children in school holidays. I will make arrangements for the children to spend Easter with her. Given the significance of Easter to her and the children, it is appropriate I think that the children travel prior to Good Friday.
I think it is also likely to be useful for the children to experience what it is like to see their mother only in school holidays, as has previously been the case with their father, so that their ultimate decision is likely to be as well informed as possible.
As with Mr Garth in the past, it is appropriate that the mother be able to see the children at least twice during the school terms. Mr Garth is better financially resourced than Ms Hope, to a significant degree. In addition, he is also the instigator of these proceedings. It was his decision to move to Brisbane, albeit that decision was made some years ago. In these circumstances, it is my view that he should bear the greater proportion of the children's costs involved in travelling to and from Brisbane and Adelaide as the trial is being continued.
A controversy has arisen over the mother's plans to have a holiday with the children in Queensland over the long Australia Day weekend.
As the previous orders stood, she would have flown to Queensland to collect the children from the father and return with them to Adelaide.
As I understand things, in July of this year she made arrangements for a holiday with her partner and his children, which she anticipated would include [B] and [Q]. Ms Hope mentioned this issue to Dr Savage who reports as follows:
Ms Hope was wondering if Mr Garth would agree to the children still spending time with her for this holiday or if the court would make an order that would enable the children to attend. It would involve the children missing approximately four days of school.
Mr Garth is not inclined to agree to the holiday as it would mean the children would miss the first few days of the new school year, obviously an important time for the children. It seems that Mr Garth does not with to encourage any laxity in regard to school attendance.
Regrettably, the decision so falls to me. I can see pros and cons on both sides, particularly the prospect of the children being disappointed if they are not able to spend a holiday with their mother which they are looking forward to.
However, on balance I have decided that if there is to be a continuation of the trial it is better that it starts sooner rather than later, and that the children start the school year as ordinarily scheduled.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 24 January 2008
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