Garvey & Eccles
[2008] FMCAfam 1218
•17 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARVEY & ECCLES | [2008] FMCAfam 1218 |
| FAMILY LAW – Parenting – relocation – where mother has significant health issues – impact of relocation on substantial and significant time with father – effect of relocation on meaningful relationship – admissibility of evidence in family report. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| D & T [2007] FamCA 1383 Oakley & Reid [2007] FamCA 1520 Bruce Smyth, Time to rethink time? The experience of time with children after divorce, Family Matters No. 76, Winter 2005 page 4. |
| Applicant: | MR GARVEY |
| Respondent: | MS ECCLES |
| File Number: | SYC 7150 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 18 August 2008 |
| Date of Last Submission: | 19 August 2008 |
| Delivered at: | Wollongong |
| Delivered on: | 17 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rees |
| Solicitors for the Applicant: | Hamish Cumming Family Lawyers |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Gayle Meredith & Associates |
ORDERS
(1)The parents have equal shared parental responsibility for the children [L] born in 2004 and [C] born in 2005.
(2)That the children live with the mother.
(3)That in 2008 that the children spend time with the father as follows:
(i)during school term on each alternate weekend from 4.30 pm on Friday until 5.00 pm on Sunday, (“the period”);
(ii)each Wednesday from after school, preschool or 3.30pm through to before school, preschool or 9am (as the case may be) the following day;
(iii)in the December/January school holiday period for the first four nights in each alternate week of the holidays, the first week to be the week commencing 28 December 2008;
(4)That in 2009 the children spend time with the father as follows:
(i)during school term on each alternate weekend from 5.00 pm on Friday until the commencement of school and preschool on Monday;
(ii)each Wednesday from after school, preschool or 3.30pm through to before school, preschool or 9am (as the case may be) the following day;
(iii)in each of the April, July and October school holidays from the first day of the holiday for a period of six nights;
(iv)in the December/January school holiday period for the first six nights in each alternate week of the holidays, the first week to be the week commencing 27 December 2009;
(5)That in 2010 and each year thereafter the children spend time with the father as follows;
(i)during school term on each alternate weekend from 4.30 pm on Friday until the commencement of school and preschool on Monday;
(ii)during school term on every Tuesday from 4.30pm to Thursday at 9.00am.
(iii)for one half of the April, July and October school holiday periods, being the second half in 2010 and in each alternate year and being the first half in 2011 and each alternate year;
(iv)in alternate weeks during the December/January school holiday period, the first week to commence in the first full week following Christmas Day.
(6)That the children spend time with the father in addition to the time set out in Orders 2 – 4 herein as follows:
(a)on Fathers Day from 9.00 am to 5.00 pm;
(b)on the father’s birthday from 10:00 am to 4:00 pm;
(c)by telephone on days that the children live with the mother on one occasion daily between the hours of 7.00 pm and 7.30 pm.
(7)That should the mother’s birthday fall during a time the children spend time with the father then the father shall return the children to the mother from 10:00 am to 4:00 pm.
(8)That when the children are with the father that the mother be at liberty to communicate with the children by telephone on one occasion daily during the hours of 7.00 pm and 7.30 pm.
(9)That when the children are with the mother that the father be at liberty to communicate with the children by telephone on one occasion daily during the hours of 7.00 pm and 7.30 pm.
(10)That school holidays are defined as commencing from after school on the last day of school term until the first day of school (not being a pupil free day).
(11)That the parents agree to review the parenting arrangements in consultation with a mediator if any concerns arise regarding the children’s wellbeing and adjustment to changes in parenting arrangements.
(12)Pursuant to section 13C of the Family Law Act 1975 the parties must within 21 days contact Relationships Australia on 1300 364 277 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
(13)The parties must attend the appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
(14)If assessed as suitable and Relationships Australia nominates counselling mediation including child inclusive mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.
(15)The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
(16)That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the Child; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
(17)That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a)The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b)The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Garvey & Eccles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7150 of 2007
| MR GARVEY |
Applicant
And
| MS ECCLES |
Respondent
REASONS FOR JUDGMENT
Introduction
The matter before me relates to two children, [L] who is aged 4, and [C] who is aged 3. The children's father is the applicant. He is 39 years old and currently lives in Sydney. The respondent is the children's mother. She is 33 years old, currently lives in Sydney, but would like to relocate with the children to Bathurst in the New South Wales central western region. The parents commenced cohabitation in February 1996, married in April 2003, separated under the same roof in December 2006 and physically separated in January 2007.
The mother suffers from multiple sclerosis but she continues to work, at least on a part-time basis, providing [occupation omitted]. The father is employed on a full-time basis as an [occupation omitted]. He is currently a [occupation omitted] at a New South Wales university. When the hearing commenced before me there were property issues outstanding, as well as parenting issues. I am pleased to record the fact that the parents were able to settle all property and financial matters between them, and that I made consent orders to reflect their agreement. This meant the main focus of this judgment relates to the children, and the parenting orders relating to them which is in their best interests.
Background
In substance the father seeks parenting orders that provide for him to have equal shared parental responsibility for the children, with the mother. As there was no serious issue about this, I will make an order for equal shared parental responsibility. He also sought an order that each parent individually have sole responsibility for making decisions on a day to day basis relating to the children. Again, there was no serious issue raised by the mother about this, so I intend to make an order to this effect.
The father proposed that the children continue to live with the mother other than times when they live with him. He proposed that the children live with him each alternate weekend from 3 o'clock on Friday until 8.30 am on Monday, as well as from 5 pm on Wednesday through to 9 am on Saturday. Based on the father's application, therefore, he proposes that the children live with him 6 out of 14 nights each fortnight.
The father also proposed that the children live with him for block periods during the father's university holidays, at least until the children commence school when he would have them for half of each of the school holidays.
It should be noted that the father's proposals are contained in his application filed 16 October 2007, and that he was representing himself at that time. His proposal did appear to change during the litigation and this is reflected, for example, in what he is reported to have indicated to the family consultant appointed under reg.7 to prepare a Family Report in these proceedings.
The mother's proposals in relation to the children are expressed in the alternative. Her preference is that I would make an order permitting her to relocate to Bathurst with the children. On this proposal the children would spend time with their father in 2008 on each alternate weekend from Friday afternoon to Sunday afternoon, for four nights during the October school holidays, and for four nights in each alternate week of the December/January school holidays.
In the mother's proposal the father would be responsible for collecting the children from Bathurst and returning the children to Bathurst for three out of four of his contact visits, and the mother would be responsible for travel on one out of four of the visits. In 2009, however, the mother proposes that the father would spend time with the children each alternate weekend from 5 o'clock on Friday until the commencement of school and pre-school on Monday, but otherwise on the same basis for travel as set out above.
From 2009 she proposed that the children would spend time with their father during school holidays for five nights during the mid-year school holidays, and six nights in each alternate week of the December 2009/January 2010. Thereafter, from 2010, the mother proposes that the alternate weekend contact continue as stated above, that the father have half of each mid-year school holidays, and then half of the Christmas holidays but in alternating weeks.
In the alternative, and should the Court not permit the mother to relocate to Bathurst, the mother proposes that the children live with her and spend time with the father on a basis that is nearly identical to her proposal for the father to spend time with the children set out above but with provision for special occasions such as Father's Day. In addition, however, the mother proposed that the father also spend time with the children every Wednesday from 4.30 pm to the following day at 9 am, a well as specific provision for Christmas.
Whilst this case might be popularly described as a relocation case it is, from a legal perspective, an application for parenting orders under Pt VII of the Family Law Act which includes a proposal for the relocation of children. Another way of conceptualising the dispute is to describe it as a dispute between parents about how their children's time is to be divided between them.
During the course of the hearing a number of possible alternatives were explored, either explicitly or by implication. One alternative, and indeed that preferred by the father, is that the current situation continues with some modification of the existing time arrangements. Another alternative that was explored in the evidence is the possibility that both parents relocate to Bathurst in which case the time arrangements could either be maintained, or modified.
Another alternative is that the mother relocates to Bathurst but the children remain in Sydney. Whilst this is a theoretical alternative I understood the proposal of the mother, and her evidence at the hearing, to be that if relocation were not permitted she would remain in Sydney. Another alternative, of course, is that proposed by the mother, namely that she and the children be permitted to relocate and the issue therefore is how much time the children would spend with their father.
It is quite possible that there are other alternatives and that within each alternative there are numerous variations. I am satisfied that the evidence traversed all of the reasonably possible alternatives in this case. I will discuss them in greater detail below.
On 25 January 2007 the parents entered into a shared parenting agreement that had been facilitated with the assistance of the Family Relationship Centre at Sutherland. Even though this agreement was expressed as "a trial parenting plan for three months from this date and will be revisited at that time" it clearly set the basis for the father spending time with the children. The agreement provided for both children to spend time with their father from midday on Sunday to Monday evening, and on Thursday afternoons.
It must be remembered, of course, that the children were much younger when this agreement was entered into. Over time this arrangement evolved so that it became three nights per fortnight by April 2007. From the father's perspective he appears frustrated that he could not have more time with the children since then. From the mother's perspective she appeared to continue to have concerns about the ability of the children to cope with absences from her, as well as concerns about the father's ability to care for them.
The mother suffers from multiple sclerosis which was diagnosed in 2001. Since then she has suffered a number of debilitating episodes of the disease which has meant that she has required assistance in caring for the children. On her behalf it is asserted that one of the benefits of her proposal to relocate with the children is that she would have the assistance of her parents and family who live in Bathurst, a well as the provision of suitable accommodation for the children and herself.
One of the issues that I need to determine relates to the evidence that was advanced on behalf of the mother about her illness and the extent to which it supports her contention that there are times when she will need the support of others, particularly her parents, in caring for the children.
I will try to summarise their respective cases as follows. My summary will not, I am sure, do justice to their respective cases but I will deal with all of this in more detail below. From the father's perspective he says that he is an available father with a good relationship with the children and that such a relationship would be undermined if the Court were to permit relocation to Bathurst. He would like to spend more time with the children and is frustrated because of what he perceives to be the mother's actions in precluding him spending more time with the children.
From the mother's perspective the children are very young and she says do not cope very well with absences from her. As a result of her multiple sclerosis she sometimes suffers from fatigue issues and she needs support from time to time in assisting with the care of the children. She says that the best source of support is her parents in Bathurst. The mother asserts that at times, when she has been in need, the father has not been able to provide the support required.
On the mother's behalf it is argued that the father, who is in flexible employment, could easily come to Bathurst to spend time with the children and, indeed, even spend more time than that proposed by the mother.
Issues
I summarise the issues that I believe have emerged from the evidence presented by the parties, in light of their proposals.
(1)What weight should I attribute to the Family Report of Regulation 7 family consultant, Nick Paris, which I released to the parties on 16 June 2008, and which was prepared on the basis of interviews and observations held 5 June 2008?
(2)What weight would I attribute to the medical evidence that was advanced on behalf of the mother in relation to her multiple sclerosis?
(3)What impact would the competing proposals have on the meaningful relationship that exists between the children and their parents?
(4)What is the nature of each parent's relationship with the children, and how would the respective proposals affect that relationship?
(5)Having regard to the proposals, are there any relevant issues about the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children, and the other parent?
(6)Having regard to the proposals, what is the likely effect of changes in the children's circumstances including the effect of separation from a parent?
(7)Having regard to the proposals, are there any issues of practical difficulty and expense of the children spending time and communicating with a parent and to what extent would this substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis?
(8)Are there any issues in this case about the capacity of the parents to provide for the children's physical, emotional, intellectual and other needs and if so how does that impact on the respective proposals?
(9)Are there any issues about the parental attitudes to the children and to the responsibilities of parenthood, and how does that relate to the respective proposals?
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Relocation
In my previous decisions of J & R [2007] FMCAfam 181, H & H [2007] FMCAfam 27, and M & K [2007] FMCAfam 26 I set out my understanding of the effect of this legislation on the law relating to relocation. There have been a number of later Full Court cases, and I discuss those below.
I adhere to the discussion in these earlier cases of the meaning of the term “meaningful involvement”, though I recognise that in the Full Court’s decision in Godfrey & Sanders (2007) FamCA 102 Kay J, sitting as the Full Court, made obiter comments at paragraph 36 suggesting a different interpretation. His Honour suggested that the legislation aspires to promote a meaningful relationship, not an optimal one, and that a diminution in the quality of the relationship does not necessarily mean it is no longer meaningful. I accept that the differences in approach are significant. One of the differences is that my interpretation of what constituted a meaningful relationship is based on social science research, as I set out in my earlier judgments. In each case it will be a question of assessing the nature and quality of the relationship between parent and child, and the degree to which the relocation diminishes that relationship. On the facts of some cases, the meaningful relationship is not diminished at all. An example of this is the decision of Dessau J in M & S [2006] FamCA 1408. In Godfrey & Sanders (2007) FamCA 102 Kay J obviously found that any post-relocation diminution of relationship was not, on those facts, significant. I very much doubt if His Honour meant his comments to apply generally. The children in that case were 11 and 7. But if the children were much younger, for example, relocation might have caused a greater diminution in the quality of the relationship between them and the non-relocating parent. It is also unfortunate that His Honour did not have the benefit of contrary submissions as to what constituted a meaningful relationship on the facts of that case.
It is also relevant to consider whether a meaningful relationship can be maintained through what has been described as “virtual visitation”. The term was used in two recent articles appearing in volume 36 Family Law Quarterly[5] and encompasses the use of telecommunications technology such as webcam and email. Innovation in telecommunications has resulted in children being able to communicate with their parents orally, visually, and in writing, almost at will. Virtual visitation orders are not uncommon, even in relocation cases. Dessau J in M & S (2006) FamCA 1408 accepted this form of communication at paragraph 93 of her judgment.
[5] Sarah Gottfried, Virtual Visitation: The wave of the Future Communication Between Children and Non-Custodial parents in relocation cases 36 Family Law Quarterly 475, Kimberly Shefts, Virtual Visitation: The next Generation of Options for Parent-Child Communication 36(2) Family Law Quarterly 303
On the facts of that case it was clearly appropriate as the child in question was not only familiar with but experienced in virtual visitation.
There is a real danger in relocation cases in putting too much weight on the availability of virtual visitation. Can a child have a meaningful post-relocation relationship with the non-relocating parent when that relationship depends on virtual visitation? The Family Law Council had some real concerns about virtual visitation at paragraph 4.12 of its Relocation report dated May 2006[6]. I doubt very much whether the social science approach to meaningful relationship, that emphasises emotional closeness and authoritative parenting in the diverse contexts of parent-child interaction, lends itself to virtual visitation.
[6] Family Law Council Report, “Relocation”, Canberra, May 2006.
From a legislative perspective, s.60CC(3)(e) seems to emphasise “personal relations” and “direct contact” rather than impersonal and indirect forms of contact. Moreover the definition of “substantial and significant time” in s.65DAA(3) emphasises not just the quantitative aspect of time, but the qualitative aspect of opportunities to be involved in daily routines and special events.
Virtual visitation, for some children, in some cases, may be a way of lessening the impact of relocation where relocation is otherwise in their best interests. The availability of virtual visitation is not a reason to allow relocation in and of itself.
A number of recent Full Court decisions on relocation establish the following principles:
a)If the presumption of equal shared parental responsibility applies, even in a relocation case the court must consider whether equal time or substantial and significant time is in the child’s best interests and is reasonably practicable: Morgan & Miles [2007] FamCA 1230 at paragraph 54, citing Goode & Goode (2006) FLC 93-286 and Newlands & Newlands [2007] FamCA 168; Taylor & Barker [2007] FamCA 1246 at paragraph 58.
b)
There is no “right” to relocate, in the sense that there is nothing in the legislation which provides that a parent who has an existing order which provides that the child spend
50 percent or more of their time with that parent has a unilateral right to move the child: Morgan & Miles[7].
c)For the time being, the Family Law Act does not treat relocation cases as a special category of parenting orders. The court is deciding with whom a child should live and spend time: Morgan & Miles[8].
d)In a relocation case there are no presumptions either in favour or against relocation: Morgan & Miles: paragraph 74.
[7] [2007] FamCA 1230 at at 55
[8] Ibid at 72
The impact of the most recent amendments to the Act in relocation cases has been described in the following terms in Morgan & Miles[9] at paragraphs 79-81:
[9] ibid
79. In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
·that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
·that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
·that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
·the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, [ remain valid].
81. What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
The distance involved in a proposed relocation does not necessarily involve different considerations. The Full Court in Morgan & Miles[10] described it in these terms at paragraphs 91-92:
91. The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
[10] Ibid
In dealing with a relocation case, the court must consider the proposal for relocation as one of the proposals for a child’s future living arrangements. It is also relevant to consider other proposals and alternatives including, for example, that the parent opposing the relocation in fact relocate: U & U (2002) 211 CLR 238; (2002) FLC 93-112; Bolitho & Cohen (2005) FLC 93-224; Taylor & Barker [2007] FamCA 1246 at paragraph 53.
The obligation to consider equal time or substantial and significant time in s.65DAA does not require the court to consider reasonable practicality if it finds that a proposal would not be in the child’s best interests (Taylor & Barker[11] ).
[11] [2007] FamCA 1246 at paragraph 74
The obligation to “consider” equal time or substantial and significant time in the context of a relocation case clearly requires the weighing up of the advantages and disadvantages of a parent’s proposal to relocate against the advantages and disadvantages of the maintenance of the status quo: Taylor & Barker[12]. Each of the proposals needs to be considered through the framework of s.65DAA and its core concepts of “equal time”, “substantial and significant time”, “best interests” and “reasonable practicability”. In this regards the Full Court in Taylor & Barker[13] noted at paragraphs 82-83:
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[12] ibid at 75
[13] Ibid
But these sections do not mandate the making of orders in one or other of the terms, only that genuine consideration is given to them. The ultimate question is one of best interests: Goldrick & Goldrick [2007] FamCA 1260 at paragraph 43.
In some cases, the happiness or unhappiness of a parent proposing relocation may be an important consideration. Whilst clear evidence about this is preferable, sometimes happiness is a state of mind to be inferred from the evidence eg based on reasonable inferences. See Taylor & Barker[14]. However, the Act does not prescribe parental happiness, as such, as a factor in determining the best interests of a child: see the dissenting judgment of Faulks DCJ at paragraph 127. In any event, if parental happiness is a relevant consideration, it must surely be that the happiness of both parents is relevant.
[14] Ibid at 106 and 109
In some relocation cases, s.60CC(4) may be relevant. However the focus is always on a person’s capacity to parent (Goldrick & Goldrick[15]) .
[15] [2007] FamCA 1246 at paragraphs 40-41
The family report
The family consultant conducted interviews and observations in the Family Court at Sydney on 5 June 2008. He interviewed the mother, father, and the maternal grandmother. He observed the children, [L] and [C] in the presence of their mother, father and maternal grandmother. He also had available to him most of the documents that had been filed on behalf of the parties, with the exception of their most recent affidavits.
As is not unusual in a Family Report, the family consultant presents a historical record of matters of background, the current parenting and living arrangements, and the applications and proposals of the parties. This was, no doubt, based on what he was told by the parties and what is contained in the documentation. For the most part these parts of the report are, in my opinion, relatively unproblematic. However, at paragraph 11 of the report the family consultant states:
There is nothing to suggest that the parents should not continue having equal shared parental responsibility, and it remains viable, particularly given the absence of child protection concerns and family violence factors, that the parents could have an equal time scenario in the future on a condition that the mother does not relocate away from Sydney.
Counsel for the mother was quite critical of this paragraph on the basis that the family consultant had not been asked to deal with that matter (i.e. equal time) and, in any event, for all practical purposes it was beyond his expertise. In any event it raises the question of the extent to which, if at all, the conclusion clouded the family consultant's judgment and subsequently distorted his conclusions.
The order for the Family Report was made by myself on 8 February 2008. He was not instructed to deal with whether or not the parents should have equal shared parental responsibility, and he was certainly not asked to explore whether the parents could have an equal time scenario with the children. I have no doubt that the family consultant intended his comments to be helpful to the Court. Indeed, he is probably right in the sense that there is no reason why the parents should not continue having equal shared parental responsibility. He is probably correct in asserting that there are no child protection concerns and family violence issues.
But that is not the point. He was not asked to comment on these matters and, therefore, strictly speaking his comments are irrelevant. To go on and speculate about equal time is not only irrelevant, but quite unhelpful. For one thing, as in the present case, it only served to further undermine any confidence that the mother would have in the Family Report.
I have further concerns about other paragraphs in the report. For example, the family consultant frames the issues in the following terms:
(13) Clearly the primary issue in these proceedings remains the mother's desire to relocate from Sydney to Bathurst. Whilst it is recognised that the maternal grandparents, who reside in Bathurst, would be of invaluable support to the mother whilst having the children in her primary care, there appears little doubt that a primary concern for the children should be that they develop an equitable relationship with their father, which would not appear to be feasible if the children are relocated to Bathurst.
(14) Give that the father has been consistent in his expressed wishes to the mother to spend more time with the children, it remains difficult to discern why the mother has not responded more positively to the father's desire to remain integral in the subject children's lives.
I am concerned about the family consultant's use of the words "equitable relationship with the father" in paragraph 13. My order asked him to consider the nature of the child's relationship with each parent. I would have thought that clearly was an invitation to comment on the qualitative aspects of the children's relationship with their father. The word "equitable" is in my opinion a quantitative observation about the relationship.
The Court often makes decisions about the best interests of children expressed in quantitative terms, i.e. how much time, but that is a matter for the Court to decide. It is not helpful when an independent expert such as a family consultant uses a term such as "equitable" in describing the relationship between children and their father.
Moreover, in paragraph 14 the family consultant seems to reach a conclusion about the father's behaviour and the mother's response when the actual evidence before the Court indicates that the situation was far more subtle, and far more complex, than the family consultant portrays in one sentence at paragraph 14.
With respect, these are hardly matters that engender a confidence in the family consultant's final conclusions. One can readily understand the submissions of the counsel for the mother that little or no weight should be afforded to the report. Furthermore, the mother's counsel is critical of a sentence appearing at paragraph 55 of the Family Report which states as follows:
(55) However, despite this rationale, and the mother's clearly demonstrated parenting capacity, I cannot support her relocation to Bathurst with the children because the implications of such a move and its impact it would have on the children spending substantial and significant time with their father.
The criticism advanced on behalf of the mother is that the family consultant was not asked to make any conclusions about substantial and significant time. Indeed, he was not. He was asked to make observations about a number of stated matters and then to report to the Court. The Court has to make decisions about substantial and significant time based on a report prepared by the family consultant, as well as all of the evidence, written and oral, that was available at the hearing.
These relatively serious deficiencies in the family consultant's methodology were, regrettably, exacerbated by his oral evidence which lacked specificity, was disorganised, and indicated a poor recall of the interviews. To be fair to the family consultant his personal circumstances were such that he did not have access to his notes at the time he gave his evidence. But not even this factor mitigates the concerns I have about the report.
However, the report contains a record of a number of observations, as well as conclusions and recommendations that are based on those observations that still have a considerable weight provided they remain within the ambit of the order requesting the report. And example of this is paragraphs 30 and 31 of the report which states as follows:
(30) Whilst it is clear that the mother has been the children's primary carer since birth the mother is also of the view that the children's attachment is far stronger with her than it is with their father. The mother indicated that [C] attempts to run away when Ms Eccles tries to place her in the car, to take her to her father's home.
(31) It is reasonable to suggest that Ms Eccles has a demonstrable and insightful understanding of children's developmental needs. She certainly presents as a committed parent, whose own childhood experiences have provided a foundation for her own current parenting practises. However, it is fair to say that her role as a parent, although primarily for her, currently excludes the possibility that the father may also have significant contributions towards the psycho-social development of the subjected children.
In relation to the family consultant's observations and conclusions about the father the report states at paragraph 46:
(46) Mr Garvey certainly presented as a parent who wishes a long term and integral relationship with his children. He presented as having a mature approach to his parenting responsibilities and clearly wishes to fulfil his long term responsibilities with the subject children by participating in the long term decisions about their future wellbeing. Given the father's openness to participate in mediation to resolve issues with the mother, it is likely that both parents can learn to respect each other's strengths with the subject children.
I am satisfied that the observations that the family consultant makes about the parents and the conclusions that he makes, are based on his observations and are within the parameters of the order as regards the preparation of the report. Any deficiencies in methodology that I refer to above do not appear to have affected these observations.
Likewise, the observations of the children and their relationship with the parents are valuable. This part of the report is found at paragraphs 52-54:
(52) Both children presented with age appropriate skills and language development. They appeared comfortable and happy in the presence of both their parents.
(53) During my observation of the mother spending time with the children, she easily engaged both children in structured play.
Ms Eccles was very nurturing in her approach with both of her children, and successfully divided her time between both her children appropriately. Both the mother and the maternal grandmother were certainly educational in their approach to the children with the mother clearly demonstrating excellent skills with children. There were clearly no overt child protection concerns during this observation.
(54) While the father also easily engaged his children in structured play, it is fair to say that he demonstrated somewhat less capacity than the mother during the parent/child interactions, allowing the children to dictate the play activities. Whilst the father was warm and appropriate with both children throughout the observation, it was clear that he was not as physically nurturing as was the mother. Despite this, again there were no overt child protection concerns during the observation.
The evaluation contained at paragraphs 55-58 is somewhat more problematic. Paragraph 55 states as follows:
(55) In my view Ms Eccles’ desire to relocate to the Bathurst area is enshrined in the belief that her parents will provide the necessary support for her, particularly when she is stressed either as a result of her MS condition or other life factors. Secondly, it appears that the mother does not feel sufficiently empowered to deal with any confrontation with the father regarding the children, and thus her “escape” to Bathurst would thus minimise her contact that she would need to have with Mr Garvey. However, despite this rationale, and the mother’s clearly demonstrated parenting capacity, I cannot support her relocation to Bathurst with the children because the implications of such a move and its impact would have on the children spending substantial and significant time with their father.
As it turns out the evidence I heard is consistent with the family consultant conclusions in the first and second sentences of paragraph 55. The third sentence troubles me because of the reference to "substantial and significant time" as I have indicated above. However, what I will need to decide is whether the evidence supports the conclusion in the third sentence without any reference to substantial and significant time.
Clearly the family consultant is concerned about the impact of the relocation to Bathurst in terms of the children's time with their father. That part I am able to accept and is a matter I must take into consideration.
Paragraph 56 of the Family Report states as follows:
(56) Whilst it is recognised that both parents have a similar commitment to the wellbeing of their children, and both parents possess insight and qualities which should maximise their children’s psychosocial development, it is fair to say that the father has a less nurturing approach to the children than the mother, but without question has the capacity to provide appropriate care, and similar to the mother will be able to fulfil his responsibilities of parenthood. The father clearly wishes to remain integral in his children’s lives, and this would not appear to be viable if the mother’s relocation to Bathurst is supported.
Subject to the evidence, I find that the family consultant's conclusion was one that was open to him having regard to his interaction with the family and is within the parameters of the report. His concern is that relocation will make it more difficult for the father to remain integrally involved in the children's lives.
Paragraph 57 provides as follows:
(57) Whilst it is acknowledged that the mother has a supportive relationship with her own parents, and that the maternal grandmother in particular has been significant to the children, there is nothing to suggest that the maternal grandmother cannot frequent Sydney on a regular basis to support her daughter as is required. This support, combined with the father spending an increased amount of time with his children, should alleviate some stressors for the mother.
On the basis of that which is contained in the report I do not understand how the family consultant could conclude that there was "nothing to suggest that the maternal grandmother cannot frequent Sydney on a regular basis to support her daughter as is required". I place no weight on this. The extent to which the maternal grandmother can provide support for the mother, whether in Bathurst or in Sydney, is a matter for the evidence. Paragraph 58 provides:
(58) Given the absence of child protection concerns and family violence issues in these proceedings, I cannot support the mother’s relocation, and it remains likely that if both parents give serious commitment to a mediation process, that it is likely that the children will benefit from both parents having significant relationships with the children on an equal basis.
I am troubled by the reference to child protection concerns and family violence issues. One possible reading of paragraph 58 of the report is that the family consultant believed that in the absence of these issues relocation should not be permitted. That, of course, is not what Pt VII of the Family Law Act states. Moreover, the reference to "relationships with the children on an equal basis" is also problematic. Not even the father raised equal time as a possible alternative in this case. It is a mystery where the family consultant got this from. I place no weight on paragraph 58.
At paragraphs 59-63 the family consultant makes recommendations including one that the relocation of the mother to Bathurst "is not supported" and one that the children live with their mother in Sydney, and spend five nights per fortnight with their father, in one three night and one two night block implemented on a weekend and mid-week basis respectively.
Regrettably, I am forced to place minimal weight on these recommendations. There are so many concerns that I have about aspects of the family consultant's methodology that it is hard to resist the strong inference that his conclusions may have, and indeed were influenced by, irrelevant matters and conclusions that were formed on the basis of evidence that is not transparent. Even the recommendation about time between the children and their father is unsupported by any specific observations about why, for example, the children could cope with five nights per fortnight but not why it would not be in their best interests for it to be either less or more?
As I have indicated before this means that there is only limited assistance to the Court as a result of this Family Report, though it is not entirely useless. It is important for family consultants to strictly abide by the terms of the order for the preparation of the report. There needs to be a transparency and accountability in all processes associated with the formulation of the evaluative components of a report.
The weight to be given to the medical evidence advanced on behalf of the wife
Before considering the weight to be given to the evidence it is important to understand the context of the same. The mother suffers from multiple sclerosis which, on her case, is exacerbated by a stressful environment. Not only does she need to minimise the stress in her life, but when she has episodes of multiple sclerosis she needs assistance in parenting. One of the benefits advanced in support of her relocation with the children to Bathurst is that it would be both a less stressful environment for her, and she would have the support of her parents.
The wife relied on an affidavit of Dr G, a senior clinical psychologist and research development officer with the association known as
MS Australia. There was an objection to this evidence but I admitted it subject to weight. The substance of the report prepared by Dr G is that there is strong evidence from a range of studies that points to a significant relationship between stress and relapse rate and brain lesion appearance in multiple sclerosis. He adopted a definition of stress that described it as increased conflict and disruption in routine. The following passage appears in his report:
Although I have not assessed or consulted directly with Ms Eccles the findings of the research in this particular area can be generalised across all people with MS. Women, in particular, are prone to stress reactions and have auto immune reactivity in greater proportion to men. For Ms Eccles then, the following conclusions can be formed:
(1) It is likely that Ms Eccles will be prone to intense stress reactions that would be predictive of Neuro inflammation and MS relapses.
(2) The higher the number of acute stress events in
Ms Eccles life the more likely should would be to experience relapses.
(3) The more relapses Ms Eccles experiences the more likely it will be that she experiences stress.
Some of the ameliorating factors to stress have been shown to be social support and learning to reduce stress and its effects. In this instance, the reduction of stressful interactions during the separation and divorce proceedings would be advisable as would Ms Eccles' use of family and other support systems and the seeking of trauma/stress management therapy from and experienced clinical psychologist with a good working knowledge of MS.
The difficulty with this evidence is that it is too generalised. Dr G concedes that he has not assessed or consulted directly with the mother in these proceedings. It is probably the case that most parents who have experienced the trauma of separation and subsequent litigation about parenting matters would benefit from the conclusion of proceedings. In any event it seems to me that the report does not preclude any of the possible alternatives that are available on the facts of this case. The report is of little use on the facts in this case and I will give it no weight.
The second report is provided by Dr F, a specialist in neurology and neurophysiology in practice at the Brain and Mind Research Institute at Camperdown in Sydney. There was no objection to this evidence, and Dr F was not required for cross-examination. The evidence indicates that the mother was first seen by Dr F for a neurological consultation on 19 March 2003 when the mother was 28 years old. The most recent consultations with the mother were on 2 April and 14 May 2008.
She records that the mother has noticed that all of her intermittent symptoms are substantially worse at times of stress and tiredness.
I quote an extract of the report from pages 2 and 3:
Subsequent to the consultation Ms Eccles had an MRI of brain and spine on 6 May 2008 and was seen for review on 14 May. She has had no exacerbations. …there was no significant change in the burden of lesions when compared with the previous study. …the changes were essentially unchanged from the previous study. There were no enhancing lesions.
Dr F then expresses the opinion that none of the mother's symptoms would affect her ability to care for her children. I note that it was not part of the father's case that the mother’s medical condition affects her ability to care for the children. Dr F then makes some comments on the mother's prognosis:
Ms Eccles has had symptoms of multiple sclerosis since 1997 and is currently mildly affected which places her in a good prognostic group. In addition being female and having the greater time between first and second attacks (in Ms Eccles' case two years) also places her in a good prognostic group.
Ms Eccles has noted an increase in her neurological symptoms relating to fatigue and stress. Although a direct causal link between stress and exacerbation and progression of multiple sclerosis has not been established it is my clinical experience that symptoms of multiple sclerosis will become more manifest at times of increase in stress. It is my understanding that Ms Eccles intends relocating close to her family if possible. By providing occasional care for the children and emotional and physical support for Ms Eccles this relocation closer to her family should be beneficial by reducing stress and thereby making her symptoms less manifest.
In the longer term it is potentially possible for Ms Eccles to have exacerbations of her symptoms and signs. With these relapses she may experience difficulty walking and on these occasions having the assistance of her relatives to care for her children would also be beneficial. …in the longer term once Ms Eccles children have gone to school Ms Eccles may look to returning to be a [occupation omitted]. It is potentially possible that Ms Eccles may develop sensory disturbance, increased clumsiness or weakness of the hands which will limit her ability to pursue her career. At this time again the ongoing physical and emotional support of relatives that would be important.
It is interesting to note that Dr F states that a direct causal link between stress and exacerbation and progress of multiple sclerosis has not been established. Nonetheless, she observes that in her clinical experience symptoms of multiple sclerosis will become more manifest at times of increase in stress. It is interesting to note that the doctor refers to the provision of occasional care for the children and emotional and physical support, as being benefits attributable to relocation close to her family.
Of course there might be other ways of providing occasional care for the children and emotional and physical support that do not necessarily involve relocation to Bathurst. One would have to say that the report presents a positive prognosis on the mother. Her condition has not exacerbated over the last two years. The worse case scenario was described by the doctor in quite guarded terms - she uses the phrase "potentially possible" twice in describing what might happen to the mother (sensory disturbance, increased clumsiness or weakness of the hands) which will thus require her receiving ongoing physical and emotional support.
I am satisfied that the report presents a thankfully positive prognosis for the mother but it does also point to the benefit of her having assistance in the care of the children from time to time. The mother's case is that her parents are best placed to provide this support, but on the father's case he asserts that not only is he ready, willing and able to provide the support and assistance with the care of the children, but that the mother has a wide network of relatives and friends in Sydney who have helped her in the past and can assist her in the future.
However, to the extent that the report was intended to support her submission that there was benefit to the children in her being able to relocate to a less stressful environment in Bathurst, close to her family, I conclude the report actually provides little assistance to the wife's case in this regard.
The mother also relied on a series of articles from academic journals that she asserts establishes the link between stress and the exacerbation of the symptoms of multiple sclerosis. I admitted this material subject to weight, over the objections made on behalf of the father. This material does very little to assist the wife's case and I place minimal weight on it. There is an article by Dr M, an academic resource that was in fact referred to in the evidence of Dr G. A close reading of the article, however, demonstrates it is of little use to the wife's case. Dr M states at page 67 as follows:
However, while exciting and suggestive, the research to date has created more heat than light, largely due to the numerous and profound methodological limitations.
The most fundamental limitation is that studies to date are basically correlational in nature and have not clearly demonstrated that stressful life events can cause or contribute to MS inflammation or exacerbation.
The other articles suffer, in my opinion, from the same limitations. In conclusion, therefore, the medical evidence advanced on behalf of the mother paints a positive picture in terms of her prognosis, and suggests, but does not establish, that there is a link between the exacerbation of the symptoms of multiple sclerosis and stress. It may well be the case that the conclusion of these proceedings, whatever the outcome for the mother, will be the best possible thing for her health. But that is a situation that most litigants find themselves in. Litigation is an inherently stressful experience.
Insofar as the mother sought to establish, by medical evidence, that there was benefit to the children as a result of her being able to move to a less stressful environment and thus avoid or mitigate the possible exacerbation of her medical condition, she has failed to satisfy me that this would be the case, on the balance of probabilities. The link between stress and the exacerbation of multiple sclerosis has not been established. Even if I accept that there is a link there are many ways of supporting the mother, some of which do not involve a relocation to Bathurst.
Meaningful relationship[16]
[16] I have been greatly assisted by reference to a forthcoming article in the Australian Journal of Family Law by Professor Richard Chisholm entitled: “The Meaning of Meaningful: Exploring a Key Term in the Family Law Act Amendments of 2006”.
The issue here is not whether these children have a meaningful relationship with both of their parents, but the potential impact on this meaningful relationship of each of the proposals. On behalf of the father it is submitted that the mother's proposal to relocate to Bathurst with the children would undermine the meaningful relationship that both of the children have with their father. On behalf of the mother it is asserted that none of the proposals would have an impact on the meaningful relationship.
There is a significant quantitative difference between the father's proposal for him to spend time with his children, and the mother's proposal. Indeed, there is a significant quantitative difference between the existing arrangements for the father to spend time with the children, and the mother's proposal. But, does a change in the quantitative arrangements necessarily mean that a qualitative concept such as meaningful relationship is adversely affected?
On behalf of the mother Mr Schonell strongly submitted that the concept of meaningful relationship was about quality, and not quantity, and therefore it was not necessarily the case that less time between the father and the children means a lesser form of meaningful relationship. Moreover, the context of the first of the primary considerations is the "benefit to the child" of having a meaningful relationship. Thus, Mr Schonell submits:
On the facts of this case one must consider the benefit to the children of the mother being able to parent in a less stressful environment due to the circumstances of her health.
The evidence indicates that she has made arrangements for the children to attend [A] College in Bathurst, again without consultation with the father. In both cases it was clear that the children could not actually be enrolled in these schools without the father's permission, but the point to be made was that she had not consulted with him until after the fact. In cross-examination the mother agreed that, in general terms, since separation there was not a time when the father did not want to spend more time with the children, but she would not agree.
Moreover, her evidence in cross-examination indicated that even though she had extended the children's time with their father to three night blocks on three or four times, she then reduced it to two nights. With respect to these last two examples, the mother gave evidence that she was concerned about what she described as the children's "regressive behaviour" when returning from time with their father. The mother's evidence is that "the children struggle when they are away from me for long periods of time".
To offset this, however, the father gave evidence that the mother was quite accommodating in facilitating time between him and the children, for example to fit in with his work related travel arrangements, as well as when he was working in the city. I accept this evidence. The mother was clearly trying to be flexible in terms of how the father spent time with the children but, I conclude on balance, this flexibility was only exercised within a relatively narrow parameter of time. Thus the mother was prepared to be flexible in terms of how the father spent the time that she agreed he should spend with the children, but she was inflexible as regards how much time that would actually be.
Before making a judgment about this consideration that is not necessarily positive from the mother's perspective, one must consider the context of all of this. The separation occurred when the children were very, very young. It was stressful for both of them, but, I suspect, more so for the mother who also had to cope with health concerns. The level of communication between these parents is not very good. But even allowing for all of those mitigating factors, it is hard to understand why the mother was so inflexible about how much time the children would spend with their father.
She did not seriously challenge his evidence about the extent of his involvement in the life of the children before separation.
The mother genuinely has concerns about how the children will cope with absences from her. She is concerned about the children being anxious, disrupted routines, regressive toileting behaviours, all of which she links to the amount of time that the children spend away from her. However , her concerns might also have something to do with the high level of conflict and poor level of communication that exists between these parents.
Her concern does not, according to her own evidence, appear to be based about any inadequacy of the father as a parent. She agreed in cross-examination that he is a concerned parent who could capably deal with the anxieties that the children have shown. She agreed that he was quite capable in looking after the children. She agreed that the children loved their father and that they would miss him if they did not see him on scheduled visits. She agreed that he was an important part of their lives. She agreed that he has a very good attachment with the children, that they love him, and have a strong bond. Indeed she agreed that they would miss him if they did not see him each week.
In view of all of this evidence that came from the mother herself, I find it hard to understand why she was so inflexible with the amount of time that the children spent with their father. She did not appear to me to be insincere when she was making positive statements about the father's parenting abilities. I formed the impression that the mother was, and is, very protective of her children. This is very commendable in its own right, provided it does not exclude the role of another parent.
One must not ignore the context in which all of this took place, as I have discussed above. Nonetheless, the Court is called upon to prognosticate about the future and, as counsel for the father submitted, often the past is the only reliable guide to the future. I find that the mother has been inflexible in terms of how much time the children spend with their father, although she has displayed commendable flexibility within the parameters of the time that she did agree to.
I believe there is a risk that on the mother's proposal of relocation the mother might, over time, having regard to the tyranny of distance, and some of the personal issues that the mother confronts with her own health, struggle to facilitate and encourage a close and continuing relationship between the children and their father. I must say that, unlike some other cases, this is not a case where I think the mother would do this intentionally. Nonetheless, I think there is a risk that it will occur and it is a risk that I need to protect the children from.
The likely effect of changes in the children's circumstances including the likely effect on the children of separation from a parent
As part of the property settlement that the parents entered in to, the former matrimonial home is to be sold and thus the mother and children already face the prospect of reaccommodating themselves. Depending on where the mother moves to this could be not just a change of the home in which they live, but also possibly their community and friends. Accordingly, when considering the impact of each of the proposals from the perspective of change on the children, it is important to acknowledge that a change will happen any way.
On behalf of the mother it was conceded in submissions that there would be change on the mother's proposal to relocate. However, the change would need to be balanced against the benefits to the children and their mother. Insofar as the benefits are dependent on the argument that having regard to the mother's health circumstances a move to Bathurst would mean a move to a less stressful environment where she would be better supported, I have already declined to accept that argument.
I add, however, that insofar as the mother's case was predicated upon the lack of availability of her parents to continue to assist her in Sydney, I do not accept that evidence. The paternal grandmother, in particular, has been supportive of the mother and the children and I have no doubt that she would continue to do so even if the mother remains in Sydney. Moreover, as I have indicated above, the mother has an extensive support network in Sydney, and the main support she will have is, I believe, from the father in terms of caring for the children, particularly if, regrettably, her health does deteriorate.
As I have indicated above, however, the evidence indicates that her prognosis is positive. Nonetheless, I accept that there might be benefits to the mother and children of a move to Bathurst. I have no doubt that she would be financially better off because of the lower cost of living there. But that is one benefit to be put in the balance against the most significant change for these children if relocation were permitted, and that is a significant disruption to the nature of their relationship with their father, for the reasons I have set out above.
On behalf of the father it was submitted that having regard to the evidence in its totality the Court would have two concerns. Firstly, that a relocation would mean that it was unlikely that the father could even maintain his existing relationship with the children. Secondly, however, a relocation would almost certainly mean that the father would be denied the opportunity of building his relationship with the children.
I agree with these submissions, in substance, for reasons that have largely been set out above and which I do not need to repeat. If the relocation is granted these young children will not see their father for periods of up to 11 days during the school term whereas at the moment they would typically see their father at least two or three times in
11 days. That is a significant change for them. It severely curtails the nature of the father's involvement in their lives. Any perceived benefit of the relocation does not, in my judgment, match the disadvantage.
Practical difficulty and expense of a child spending time with and communicating with a parent
It is important to note that this additional consideration looks at practical difficulty and expense in a particular context, namely the extent to which it will "substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis". This additional consideration assumes that there will be practical difficulty and expense, but it does not become a weighty consideration until its impact is substantial.
I accept the evidence that Bathurst is three hours from Sydney by car, depending in part on what time of the day the travel is undertaken. I also accept that Bathurst is well serviced with air links and rail transportation from Sydney. On the mother's proposal she would bring the children to Sydney on one weekend in every four weeks, and that the father would spend time with the children in Bathurst in one weekend in every four. I note that the mother's evidence in this regard is set out at paragraphs 82-84 of her affidavit filed 1 August 2008.
She proposes there that the father spend each fortnight from Friday afternoon to Sunday evening or Monday morning before school on one weekend in Bathurst, and one weekend in Sydney. She proposes that if she were permitted to relocate she would bring the children to Sydney on one weekend "in every four weeks". The father would spend time with the children in Bathurst on one weekend in every four.
However, the proposal that is contained in the orders sought by the mother at the hearing before me was slightly different. The proposal was still that the father would spend time with the children each alternate weekend but then states that she would take the children to Sydney "on one in four of these weekends". Accordingly, the proposed order submitted to me at the hearing indicates that the mother only proposed to undertake the travel to Sydney on one in four of the alternate weekends on which she proposes that the children spend time with their father.
In her affidavit, however, she is clearly suggesting that she would undertake the travel on one in four weeks, or in other words each alternate weekend visit. There is a conflict between the mother's affidavit of evidence and the minute of order and I propose, for the purposes of these reasons, to accept the mother's affidavit evidence. In any event, nothing turns on this, although it is important that I record this discrepancy.
In any event, inherent in the mother's proposal is that the children would spend time with their father in accommodation that he would have to find for the children and himself on that weekend. She provides evidence about one or two bedroom serviced apartments that might be suitable as well as hotel/motel accommodation in Bathurst.
I can only assume that she is concerned about the impact of travel on the children and that is why she is suggesting it be limited to spending time with their father in Sydney no more than once every four weeks.
I agree that having regard to the age of these children the travel would be problematic, but this is in itself a reason for not allowing the relocation unless other considerations would justify the relocation. Moreover, the mother proposes that the father's time in Bathurst be in the highly artificial environment of rented short term accommodation.
Counsel for the father rhetorically asks, what sort of relationship could the children have with their father in this context? It would be less than ideal but there might be certain cases where that would not be an obstacle. In this case, when one considers the other alternatives of spending time with their father in Sydney where the travel and accommodation arrangements would be far less problematic and challenging for the parents themselves, I must conclude on balance that the mother's proposal for relocation is contraindicated having regard to this consideration.
The capacity of each of the child's parents to provide for the needs of the children including emotional and intellectual needs
Neither parent really criticises the other in terms of their capacity to provide for the needs of the children. Indeed, the evidence indicates to me that they both have the capacity to provide for all of the needs of the children. I have already recorded that the evidence of the family consultant indicates that the mother is more nurturing of the children than the father is. I have already found that the mother is somewhat more protective of the children than has been necessary, at least in the past.
I have already recorded that both parents experience communication problems which they need to work on, in order to improve their capacity to parent and provide for the children's needs. There were times when the father demonstrated a real lack of insight into the needs of the children. For example, the proposal contained in the application that he had drafted himself for the children to expend lengthy period of time with him during holiday periods showed a lack of insight on his part on the needs of the children at that young age, and the nature of their relationship with the mother.
Some of his answers in cross-examination contained reflections about himself which I felt were somewhat misplaced. But all of these considerations do not detract from my finding that they are both capable of providing for the needs of the children. Neither parent is perfect, but we tend not to get too many of those in the Family Law Courts.
The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the child's parents
The cases advanced on behalf of both parents contain some quite robust criticisms of the other parent, under the broad framework of this consideration. Of course it is quite likely that many of the other matters discussed above could also be encapsulated under this additional consideration. It is important to remember that any discussion of attitudes and responsibilities must be considered in context. This additional consideration is not licence for parents to attack the other's character.
In this case, the context is considering which of a number of different proposals is in the best interests of these young children. One of the proposals involves a relocation of the children and their mother to Bathurst and the consequent issues that arise there from. If relocation is not permitted this is a dispute about how the children's time is to be divided between their parents. Hence, all of the issues raised by both parents need to be considered in the context of these mattes.
On behalf of the mother the father was robustly criticised in cross-examination for a number of matters including, for example, his contribution to the communication problems affecting both of the parties. He was criticised for his lack of insight and irresponsibility in lodging an ambit claim for time which was developmentally inappropriate for these children and for presenting evidence in his affidavits in a way that distorted the facts rather than presenting them in their real light.
I pause here to make the observation that all of these criticisms could be made of the vast majority of parents who litigate before the Family Law Courts. One must be understanding, at times, of the nature of these proceeding which are inherently adversarial, even though there are strong less adversarial themes apparent prior to the final hearing.
Of more concern to me was the husband's evidence in relation to an email dated Tuesday 26 June 2007 that he sent to a friend. In that email he describes both his own lawyer (a woman) and the mother in the most derogatory manner. The mother's counsel described this email as "disgusting" and as an example of the father's harassment of the mother, particularly when he was fully aware of the mother's emotional and physical health. The email is, quite frankly, appalling and if it provided an accurate insight into the father's character and to his attitudes to the children and to the responsibilities of parenthood, then I would be deeply concerned.
I am not convinced that it does that, however. The father, in
cross-examination, agreed not just one, but twice, that his email was disgusting and he explained that he is "usually more careful, it is not my usual terminology". He agreed that the tone of the email was harassing and cajoling of his wife. In mitigation he expressed frustration at the lack of pace in resolving the matter and he expressed regret that he said something like that. He agreed that he had described the mother as a "dragon" with his friends, but never in front of the children.
He denied that he had consistently sought to harass and cajole her.
It was put to him that the email typified his attitude towards the mother, and women in general. He denied that statement and pointed out that the email was not directed to either the mother, or his former solicitor, and that in any event he regretted it.
But what does this evidence actually establish in the context of the present application? Does it reflect on any of the other matters that have been discussed in my reasons so far? I think the answer is no, it does not. It does not change in any way the nature of the relationship that the children have with him. It does not mitigate the effect on the children if I were to allow them to relocate. It does not mitigate issues of practical difficulty and expense. It does not reduce the mother's own evidence about the father's capacity as a parent. It does not even help me to understand what I have found to be the mother's lack of willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father. The reason for that was over protectiveness based on what she perceived to be the children's needs.
In short, the mother's case was never run on the basis that the father's attitude to the children and to the responsibilities of parenthood, as manifested by this email, would have a material impact on the outcome of the case. It was not suggested that the evidence before me indicated that the father harboured misogynistic attitudes that would cause me to be concerned about the welfare of the children in his care or that he might seek to align them against their mother or that he might seek to undermine their relationship with their father.
What it does do, however, is suggest to me that the father is prone to some quite serious errors in judgment and lack of insight which are, perhaps, related to the stress of these proceedings. One can only trust that the conclusion of these proceedings will lead to few such instances of lack of judgment.
The other evidence given by the father in cross-examination, which is certainly less than flattering insofar as it gives an insight into his attitudes towards the mother is his description of her statements as "carping". The context of this evidence was cross-examination about correspondence between the parties and negotiations in relation to the children spending time with him since separation. The father clearly thought that the mother was making unfair complaints.
As frustrated as the father may well have been at the time, his lack of understanding of the mother's perspective in relation to these issues is disappointing. But, as I stated in the previous paragraph, when this evidence is viewed in the context of the issues for determination before the Court it does not weigh significantly and none of the matters raised on behalf of the mother under this consideration would affect my overall assessment and balancing of the considerations in the light of the proposals.
The mother was robustly criticised on behalf of the father as well. Her inflexibility about the amount of time that the father spent with the children after separation was put in the context of demonstrating an irresponsible attitude of parenthood. She was criticised for failing to acknowledge in cross-examination that as a result of her proposal the children would be adversely affected by the reduction in time with their father.
But this criticism needs to be understood in the context of the evidence that the mother did give when this was put to her in cross-examination. She consistently emphasised that her proposal still provided for quality time, even if it was less time. Whilst that is not a view that ultimately I accept, it was nonetheless a reasonable view to have so I am not prepared to accept that it demonstrates a poor attitude or some irresponsibility. Having regard to all of the evidence, none of the matters raised by either parent under this consideration have an impact on my judgment.
Summary - section 60CC considerations
Having regard to all of the matters set out above, and by way of a brief summary of the evidence before I proceed to consider other matters, my conclusion is that, on balance, the mother's proposal to relocate with the children to Bathurst is not a proposal which is in the best interests of the children. It would make it difficult for the father to maintain a meaningful relationship with them and almost impossible to develop it further.
I have concerns about the mother's willingness and ability to facilitate and encourage a close and continuing relationship, in the circumstances of this case, should relocation be permitted. I would be concerned about the effect of the changes on the children particularly in terms of their separation from their father. The mother's proposal presents an unrealistic expectation on the father and the children about spending time in a highly artificial environment in Bathurst.
I record here that I have considered the possibility of the father relocating to Bathurst. Three was evidence before me that he had previously made enquiry about, or applied to a tertiary institution in Bathurst for a position, several years ago. He had, more recently, made general enquiries about the nature of work that might be available to him in Bathurst. Indeed, I formed the impression that if I found it was in the best interests of the children to relocate with their mother to Bathurst the father would indeed pursue a placement in a tertiary institution in Bathurst, if it were available.
The father is a [occupation omitted]. There was no evidence before me, however, to indicate that his skills were readily transferable away from Sydney. Indeed, it was simply not seriously advanced on behalf of the mother that he could find a position in or around Bathurst and thus the alternative of the entire family moving was not seriously put to the Court as one that it should consider. Indeed I have considered, but rejected as impracticable, the mother’s suggestion that even if relocation were permitted, the inherent flexibility of the father’s current employment would enable him to continue to spend meaningful time with the children in Bathurst.
Remaining issues - dividing time
This is a case where the presumption of equal shared parental responsibility applies. Accordingly, under s.65DAA of the Act I must consider whether equal time, or substantial and significant time, is in the best interests of the children, and is reasonably practicable. Substantial and significant time is defined in s.65DAA(3). Equal time is not in the best interests of these children because of the high level of conflict, and low communication skills, experienced by these parents. On the mother's proposal involving relocation, substantial and significant time would not be reasonably practicable, and, for the reasons I have set out above, I believe it would be in the best interests of the children.
However, insofar as both the mother and father's proposals were predicated on the children remaining in Sydney, both proposals were in the children's best interests, and reasonably practicable. Which of the proposals, or indeed what order could the Court make, that would be in the best interests of these children?
The effect of the orders sought by the father in his application filed 16 October 2007 would be for the children to live with him 6 nights out of 14. In addition for about half of each of the school holidays and special days. That was the position advocated on behalf of the father before me, however, he indicated to the family consultant (recorded at paragraph 9 of the Family Report) that he would accept 5 nights per fortnight because his proposal would not allow the mother a full weekend.
The mother's proposal for 2008 is that the children would spend time with their father during the school term from 4.30 pm on Friday until 5 pm on Sunday, on Wednesday nights, and for periods not exceeding four nights during school holidays. In 2009 the weekend time during school terms would conclude on the Monday and it would move to five night blocks during the school holidays. Then in 2010 it would half of the mid-year holidays, and half of the December/January holidays but taken as alternate weeks.
These children are very young. They have been away from their mother and with their father, for three night blocks no more than three or four times. The mother gave evidence that this was disruptive to the children and that they struggled with period of time away from her.
The family consultant recommended that the father spend 5 nights per fortnight with the children, with one 3 night block including one weekend, and with the following 2 days on a mid-week basis. As I have indicated above this recommendation does suffer from some of the other deficiencies I have discussed about the Family Report.
The mother's proposal is more measured and this is not surprising having regard to the mother's very nurturing nature.
I think the mother's proposal for the rest of 2008 is a sensitive, child focused, and appropriate manner with which to commence the transition to greater time with their father. Thus, through to the end of the year, the children will have the benefit of each alternate weekend with their father and every Wednesday night. For the forthcoming December/January school holidays the mother proposes the first four nights in each alternate weeks commencing from 24 December 2008.
I agree that this is appropriate.
By the commencement of the school term in 2009, [L] will have turned five, but [C] will not turn four until June 2009. I think it is important for the children to spend their time with their father together and thus I do not propose to vary the order for time having regard to their slightly different ages. From 2009 the weekend time will conclude on Monday morning, with the father to deliver the children to school and/or preschool, as the case may be.
In addition the Wednesday night contact will continue. By 2009 I believe the children will cope with a 6 night absence from their mother, and I propose to incorporate that in the order for school holiday contact.
By 2010 I think the children will be ready to progress to each alternate weekend from Friday through to Monday, and 2 nights in the other week being the Tuesday and the Wednesday night. The girls should also be ready for half the school holidays, but during the December/January that should be taken as alternating weeks, unless the parents otherwise agree. From the school holidays commencing in December 2010, both children should have reached a developmental stage where they can cope with longer absences from both parents and accordingly during the long school holidays the parents can divide it equally unless they otherwise agree.
By 2010, therefore, the children will be spending 6 nights a fortnight with their father, plus half the school holidays. I accept that the father's employment as a [occupation omitted] offers him a certain degree of flexibility that might enable him to have more time with the children, but in devising these orders I am focused on their best interests, not his, and the orders I propose seek to establish a pattern of predictable regular time with their father that is dependent upon what they are familiar with, ie their school term and not the less precise and more unfamiliar (for them) university term that the father enjoys.
The family consultant recommended that the parents attend a Parenting After Separation program. I think there are some unresolved issues between these parents and that they would benefit from further education about the impact on their children, the things they do and fail to do, and of the things they say, and fail to say. I will direct them, therefore, to undertake a post separation parenting assessment with Relationships Australia and to then abide with that organisation's recommendations about the best course to undertake.
I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 17 November 2008
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