Gerber & Beck
[2020] FamCA 210
•8 April 2020
FAMILY COURT OF AUSTRALIA
| GERBER & BECK | [2020] FamCA 210 |
| FAMILY LAW – INTERNATIONAL RELOCATION – both parents born in a Country A, the mother having lived in Australia for over 20 years and the father for over 10 – two children, both born in Australia, raised bilingual and observing two cultures. FAMILY LAW – INTERNATIONAL RELOCATION – Mother’s reasons for relocation application – her alleged failing mental health and her desire to be near her family in Country A. FAMILY LAW – EXPERT EVIDENCE – family consultant recommending against relocation now in view of youngest child’s age and the risk of damage to that child’s bond with her father if relocation order were made – other psychologist’s conclusions unsupported by a discernible path of reasoning and therefore defective in accordance with Dasreef Pty Ltd v Hawchar and Makita (Australia) Pty Ltd v Sprowles – application refused. |
| Civil Code (Country A) § 530 Commercial Code (Country A) Corporations Act 2001 (Cth) Evidence Act 1995 (Cth), ss 128, 174, 175 Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DA, 69ZT Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Rules 2004 (Cth) Trade Tax Act (Country A) § 5 Income Tax Code (Country A) § 15, 35 |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Adams v Randall (2011) 46 Fam LR 453 Adsteam Building Industries Pty Ltd v Queensland Cement & Lime Co Ltd (No 4) [1985] 1 Qd R 127 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 Amador & Amador (2009) 43 Fam LR 268 AMS & AIF (1999) 199 CLR 160 Babcock & Waddell [2019] FamCAFC 129 Banks & Banks [2015] FamCAFC 36 Baron de Bode's Case (1845) 8 QB 208 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Blanding v Blanding (2016) 55 Fam LR 218 Bolitho v Cohen (2005) 33 Fam LR 471 Briginshaw v Briginshaw (1938) 60 CLR 336 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Cape v Cape (2013) 50 Fam LR 1 Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 Coghlan v Cumberland [1898] 1 Ch 704 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Dearman v Dearman (1908) 7 CLR 549 Devriesv Australian National Railways Commission (1993) 177 CLR 472 Dublin Wicklow and Wexford Rly Co v Slattery (1878) 3 App Cas 1155 Earl Nelson v Lord Bridport [1845] 50 ER 207 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Fox v Percy (2003) 214 CLR 118 Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 Franklyn & Franklyn [2019] FamCAFC 256 G & G [1985] FLR 894 Galea v Galea (1990) 19 NSWLR 263 Garrety v Steyn [2019] FamCAFC 124 GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB) Goodridge v Beadle (2017) 57 Fam LR 425 Hendy & Penningh [2018] FamCAFC 257 Hooshmand & Ghasmezadegan (2000) FLC 93-043 Hunter v Transport Accident Commission [2005] VSCA 1 Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 Hutcheson & Meli [2016] FamCAFC 258 In the Marriage of MJ & KH Bennett (1990) 14 Fam LR 397 In the Marriage of Scott (1994) 17 Fam LR 420 James Hardie & Co Pty Ltd v Putt (1998) 43 NSWLR 554 Jones v Hyde (1989) 63 ALJR 349 Kerson & Blake [2018] FamCAFC 215 Kuan & Toh [2016] FamCAFC 115 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 Levinge v Director of Custodial Services(1987) 9 NSWLR 546 Lovell v Lovell (1950) 81 CLR 513 M v S (2006) 37 Fam LR 32 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McKelvey v Meagher (1906) 4 CLR 265 Molloy & Reid [2018] FamCAFC 89 Morgan v AA (2007) 38 Fam LR 275 Mostyn v Fabrigas [1774] 98 ER 1021 MRR v GR (2010) 240 CLR 461 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 Owners of SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle [1927] AC 37 Paterson v Paterson (1953) 89 CLR 212 Pell v R [2019] VSCA 186 Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 re Banque des Marchands de Moscou (Koupetschesky) [1958] Ch 182 Re TC & JC (Children Relocation) [2013] EWHC 292 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 Sampson v Hartnett (2007) 38 Fam LR 315 Sharif v Azad [1967] 1 QB 605 Sigley v Evor (2011) 44 Fam LR 439 Soulemezis v Dudley Holdings Ply Ltd (1987) 10 NSWLR State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) (1999) 73 ALJR 306 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Sussex Peerage Case [1844] 8 ER 1034 Sydney Water Corporation Ltd v Aqua Clear Technology Pty Ltd [1996] NSWSC 640 Talwar & Sarai [2018] FamCAFC 152 Taylor v Barker (2007) 37 Fam LR 461 U v U (2002) 211 CLR 238 Warren v Coombes (1979) 142 CLR 531 Zahawi & Rayne [2016] FamCAFC 90 |
| Thomas Bingham, ‘The Judge as Juror: the Judicial Determination of Factual Issues’ (1985) 38(1) Current Legal Problems The Honourable Justice P.L.G. Brereton, Proof of Foreign Law: Problems and Initiatives (2011) 85 ALJ 554 The Honourable Justice Richard Chisholm, To What Extent Can The Court Make Orders That Inhibit a Parent's Right To Relocate? Sampson v Hartnett (No 10) (2008) Australian Family Law Bulletin 934 Sir Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2nd edition, 1983) 192-193 Anthony Gray, Choice of Law: The Presumption in the Proof of Foreign Law (2008) 31 UNSW Law Journal 136 James McComish, Pleading and Proving Foreign Law in Australia (2007) 31 MULR 400 The Honourable Justice Mark Weinberg, ‘Adequate, Sufficient, and Excessive Reasons’ (2014) 5 Victorian Judicial Scholarship Dr Josh Wilson QC, ‘Adequate Arbitral Reasons After Westport – Has the Tension Been Resolved to Any Real Degree?’ (2015) 34 Arbitrator & Mediator 9 |
| APPLICANT: | Mr Gerber |
| RESPONDENT: | Ms Beck |
| FILE NUMBER: | MLC | 13378 | of | 2018 |
| DATE DELIVERED: | 8 April 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 28, 29, 30, 31 January & 27, 28 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms M. L. Smallwood SC with Mr C Tesoriero |
| SOLICITOR FOR THE APPLICANT: | AMT Legal |
| COUNSEL FOR THE RESPONDENT: | Dr R. S. Ingleby |
| SOLICITOR FOR THE RESPONDENT: | Forte Family Lawyers |
Orders
The mother’s application to relocate with the children to Country A is refused.
By 22 April 2020 the parties email my associates with a minute of proposed orders in relation to ongoing parenting orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerber & Beck has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 13378 of 2018
| Mr Gerber |
Applicant
And
| Ms Beck |
Respondent
REASONS FOR JUDGMENT
Introduction
Pursuant to my orders made on 27 November 2019, the mother’s application for orders permitting the relocation of the two children in this case was heard as a separate parenting application in litigation involving issues concerning parenting and property.
On 27 November 2019 Dr Ingleby of counsel for the mother told me[1] that the relocation application would take a day. It took six days, commencing on 28 January 2020, spread over several intervals.
[1] T25.
In very short compass, the mother and father were born in Country A. The mother has lived in Australia for over 20 years. The two daughters of the relationship are bilingual and observe certain cultural traditions having a Country A origin while concurrently growing up as Australian children aged 6 and 2. The mother brought an application to relocate to Country A with the children, citing as her main reasons for her application –
a)the deterioration of her mental health and emotional fabric;
b)her need to be with her family in Country A; and
c)her need to leave what she said was an abusive relationship with the father.
The father opposed the making of the relocation order. He contended –
a)that if the relocation order were to be granted, his work roster as an employee of Company G would allow the children to have very little in the way of meaningful time with him in consequence of which they will suffer;
b)the mother’s relationship with her family members in Country A is strained and significantly less favourable than the mother contended;
c)if the order sought by the mother is made, the mother will actively obstruct the father having any or any meaningful relationship with the children; and
d)the mother has historically engaged in highly questionable conduct and the court should have no confidence she will behave properly to promote the best interests of the children in having a meaningful relationship with the father if relocation were granted.
Psychological evidence was adduced in this case from two persons – Ms C and Ms B. Ms C cautioned against a relocation order being made at this stage of the children’s lives, stating that if such an order was appropriate at all the children were too young for its implementation at present. Ms B recommended in favour of the making of the order principally in reliance upon the information given to her by the mother about the nature of the father’s abusive relationship. In the passages that follow I have dissected the evidence given by Ms C as well as that given by Ms B. For present purposes it is enough to state that I did not find Ms B’s evidence to be useful in that she accepted, seemingly without hesitation, information given by the mother which should have been more closely scrutinised by Ms B before being accepted.
Synopsis
For the reasons that follow I refuse the mother’s application for relocation to Country A. I am not persuaded that it is in the best interests of the children to relocate to Country A. I accept that the mother holds a genuine desire to return to Country A and that her emotional fabric may be presently adversely affected. However, to determine this application with an emphasis on the mother’s personal circumstances is to erroneously proceed in the consideration of a parenting order by preferring the wishes of one parent over the best interests of the relevant children. In my view the mother’s entire approach in this relocation application has wrongly emphasised her own wishes ahead of or in priority to the best interests of the children.
The relevant factual setting
Not every fact in this case was in dispute despite the vitriol that pervaded the mother’s attitude towards the father. Some issues were agreed. However, a large number of important factual matters were disputed in which the version of events as given by the mother was at odds with the version of the same event as given by the father. It was necessary for me to determine which version I preferred. Often, although not always, that boiled down to a consideration of the credit of the key witnesses on a particular issue. Issues of credit are canvassed below.
Let me first turn to factual matters that were not in dispute.
To place this in a chronological setting it is necessary to explain the source and content of the evidence. That is set out hereunder.
The father’s version of events
The father was the applicant in this litigation, although the respondent to the mother’s relocation application. He affirmed two affidavits in this relocation application, the first on 1 November 2019 and the second on 4 December 2019. Each affidavit and the exhibits to the affidavit were separately marked as an exhibit. In Goodridge v Beadle[2] I explained why, at an evidentiary level, it is necessary to actually mark an affidavit as an exhibit before its contents becomes evidence in the case, especially at paragraphs 169 to 176. The matters set out below emerged from the father’s affidavit affirmed 1 November 2019 –
[2] (2017) 57 Fam LR 425.
a)he was born in Country A in 1971;
b)he is an employee of an international company called Company G
c)the mother was born in 1974;
d)the father and mother commenced a defacto relationship in May 2008 in Australia soon after he commenced working with Company G;
e)the couple’s eldest daughter was born in 2014 and their youngest daughter was born in 2017;
f)the father holds dual citizenships of Country A and Australia;
g)in August 2018 the mother and father separated on a final, basis the mother remaining in the former matrimonial home;
h)following separation the father has lived in a three bedroom house close to the eldest daughter’s school;
i)the father and mother decided that the father would spend time with the children by agreement and that the father would provide the mother with his flying roster one month in advance;
j)between August and October 2018 the regime described in the immediately preceding sub-paragraph applied and worked well;
k)on 16 October 2018 the mother unilaterally withdrew her consent for the father to spend unsupervised time with the children and she raised allegations against the father, so she said, of his alcoholism and adverse mental health;
l)the father denied those allegations;
m)supervised time resumed in November 2018, such supervision being undertaken by friends of the mother;
n)on 16 October 2018 the mother changed the locks at the former matrimonial home preventing the father from collecting his belongings;
o)on 26 November 2018 the mother agreed to a parenting plan;
p)on 13 November 2018, following a visit to a pool with the children, the father took the children to show them his new home which led to an intervention order being made against him on 13 November 2018;
q)the father commenced litigation in the Federal Circuit Court of Australia on 20 November 2018;
r)the father and mother agreed to attend upon Ms C for the purpose of her preparing a family report, which she did;
s)Ms C made a collection of recommendations (they are catalogued in the passages that follow);
t)on 8 May 2019 this proceeding was transferred to this court;
u)changeovers have occurred in various locations including petrol stations, playgrounds and residences of the father’s friends;
v)at the changeover on 21 April 2019 the father filmed the mother, a matter over which he expressed his remorse;
w)at a changeover on 30 May 2019, following an exchange between the father and mother, the mother picked up the youngest child shouting “police, police help” following which the father was charged with breaching the intervention order;
x)on 2 July 2019 the father agreed to a 12 month final intervention order without admission;
y)on 2 October 2019 the father was charged with one count of surveillance; and
z)the father and mother use supervisors at changeover.
The father deposed to his close attachment and devotion to and bond with the children. He said he will seek more time with the children, ultimately leading to an equal time arrangement.
Of course, if the mother’s relocation were successful, by definition a major impact will be the children’s time with their father.
In his affidavit made 1 November 2019 the father devoted considerable attention (by way of an anticipatory response) to the mother’s allegations that the father abused alcohol or was an alcoholic. He stated –
a)he denied having any problem with alcohol, he denied that his consumption of alcohol had impeded his ability to properly care for the children and he denied that as a result of alcohol consumption he had engaged in family violence;
b)he had not been convicted of driving while affected by alcohol;
c)he had not lost his licence;
d)he currently consumes modest amounts of beer and wine in a social environment but not on a daily basis;
e)in his capacity as and employee having a worldwide destination structure, the father is frequently and regularly tested by Company G for alcohol and drug protocol violations;
f)he submits himself to an annual medical examination of blood and urine with a view to detecting drug and alcohol traces;
g)he occasionally self-administers blood alcohol testing by means of a breathalyser; and
h)he has not consumed alcohol while driving a car with the children.
The father also addressed a matter of polarised opposite attitudes between the parents, namely immunisation of the children. The father’s senior counsel, Ms Smallwood SC, referred in her opening to the mother as an “anti-vaxxer”, a term used to describe persons who are opposed to the administering of vaccinations of children. The father said in his 1 November 2019 affidavit at paragraph 61 that the mother’s mother (that is to say the children’s maternal grandmother) is an outspoken anti-vaccination campaigner contending that the immunisation of children is a ploy of the pharmaceutical industry.
The significance of the circumstances of the children’s immunisation emerged in this case as evidence, so the father said, of the mother’s intransigence and obdurate attitude generally. In more sinister terms, the father contended that the evidence of the children’s immunisation in Country A demonstrated that the mother engaged in fraudulent activities with the consequence that she should not be believed when she says that she will promote a positive relationship between the father and the children if she is permitted to relocate to Country A. The factual narrative in relation to the children’s immunisation is involved. I have addressed it in greater detail in the passages that follow.
The father said that his work roster determined his availability in Australia to care for the children. He said it was not a simple task of stepping in, willy-nilly at short notice to take up available time with the children. He gave viva-voce evidence about his roster and the complications that attend any last minute attempts to alter it. In the interlocutory phases of this litigation, the father became concerned about the mother maintaining confidentiality over the entries on the father’s roster so the father produced versions of the roster with certain details redacted. That created a different set of intrigues. In the end, during the trial of this proceeding an un-redacted version of the father’s roster went into evidence as exhibit A4. The particulars of that roster are addressed in the passages below in these reasons.
In his first affidavit the father said he was concerned that the children will be removed from Australia and they will not return. He supported that fear by several matters, including the following –
a)the mother, he said, sees herself as the only parent;
b)in May then later in August 2019 the mother stated she intended to travel to Country A with the children at times rendering it impossible or impractical for the father to spend time with the children;
c)the mother has been slow to produce documentation about her true financial position in respect of her interests in Country A corporate entities;
d)in late October 2019 the mother provided extensive documentation about a Country A company, Beck Company (“Beck Company”), yet the mother has refused to agree to the appointment of a single expert to value her interest in Beck Company;
e)the mother has refused to agree to the provision of a valuation of real estate in Country A held by her whether solely or jointly; and
f)if the mother is permitted to relocate to Country A with the children she will make it difficult or impossible for anyone to compel her to return the children to Australia.
The father said that he and the mother had previously agreed that the children would benefit from growing up in Australia rather than in Country A.
The father said he is not able to transfer his employment so as to live in Country A. He said that within Company G he is based in Melbourne, Australia. He said the particular location of the base is very important as a Company G base cannot be transferred. He said that under Company G’s current base policy, the only base to which he could possibly be transferred was Country E but if that happened his roster would change significantly and any travel to Country A to see the children on a continuous basis would be impossible. He was cross-examined about that with considerable vigour by Dr Ingleby. The matters that emerged from such cross-examination are also canvassed below.
So far as the children were concerned, the father narrated their present schooling and other relevant issues. He said –
a)he and the children enjoy their time together;
b)in his present accommodation the children love (his word) spending time with him;
c)at all relevant times, the mother and father agreed the children would be raised in Australia;
d)the mother has lived in Australia for more than 24 years never evincing an intention to relocate back to Country A;
e)the youngest child is under three years of age whose verbal skills are not well formed so any relocation will inhibit the formation of a bond between that child and her father and self-evidently with no overnight time;
f)the older daughter has just begun schooling at an exclusive private school on the F Region where she has established a circle of friends;
g)both children love Australia;
h)the mother has the financial capacity to remain in Australia living very comfortably; and
i)if the relocation is allowed, the father will be unable to establish a bond with the children, they will miss him and no amount of electronic communication will be an adequate substitute especially in view of the youngest child’s literacy skills and in relation to both, the time differences.
As mentioned above, the father made a second affidavit. It was affirmed on 4 December 2019. In it he responded to the wife’s allegations in her 22 November 2019 affidavit. Yet curiously, to his own affidavit he exhibited documents that were more properly introduced into evidence by the wife such as her income tax returns. Her 2018 tax return revealed her total income for that financial year of $361,673 and her taxable income of $361,134. At item 20 of that return her foreign source income was recorded as $354,220 to which a foreign income tax offset of $136,907 applied, according to the return. In relation to the mother’s annual income, Ms Smallwood SC opened in direct terms as follows –
The wife is a part-time allied health worker. She describes her work as a hobby style. She has an income, pursuant to her taxation return, of $360,000 per annum. And that income is generated by her, I think one could say, indisputably very wealthy Country A family.
For 2018 the mother was assessed for tax at $3,618.45.
The father’s tax return for the financial year ended 30 June 2019 revealed that his total income was $201,728 and, once deductions were taken into account, his taxable income was $174,149.
Among the exhibits to the father’s second affidavit was a document headed “statement of Mr H dated 4 December 2019”. It was exhibit F23 to the father’s affidavit made 4 December 2019. Mr H was not called to give evidence in the case. For that matter neither counsel cross-examined on the statement of Mr H. Mr H stated he was a senior operator with Company G who had been based in Melbourne for 10 years. He said he recently changed bases to Country E. His statement recorded that he offered comments about issues relevant to seniority. It is utile to record verbatim his statement with errors in the original. It was as follows –
1. Seniority
Seniority is based on the date of joining Company G and is counted in the years that an employee has been employed with the Company. Any upgrades to become a senior operator is based on such seniority. Once an employee has reached a certain seniority they (sic) can apply to enter the program to be trained as a senior operator. There are pre-tests that need to be fulfilled and such tests can take up to 12 months to 2 years before an employee is accepted to be trained to become a senior operator. As Company G is based in Country E such upgrades can only be effected if an employee is willing to give up his base outside of Country E and accepts the Country E base and relocates to Country E. This in turn means that any base outside of Country E will only be available in accordance with the base bidding system. Working from a base in Country E is stressful and severally (sic) limits the time that can be spent with family and friends.
I am much more senior than Mr Gerber as I commenced working with the Company 5 years earlier.
2. Contractual agreements with Country E
Once an employee decides to be based in Country E many work related benefits under the Australian FairWork system will be lost to the employee. The Country E Contracts do not provide long service leave, carers leave, compassionate leave or paternal leave.
3. The Country E bidding system for work
The bidding system for work is extremely complicated and is based on the seniority of the employee. Any request for a particular work stream is based on a rostered bidding system. If a request is put forward to Company G and the seniority of the employee is not high enough then such request will be declined and the more senior employee will receive the requested work stream. A further problem is the license (sic) of the employees and which vehicle is used for the work. Each employee within Company G is trained to be able to operate one type of vehicle. This means that if an employee is trained on a certain type of vehicle but Company G uses a different type of vehicle to the destination the employee is not allowed to travel to that destination as he is not licensed to operate the vehicle. This makes a request to work at specific destinations very difficult and unpredictable.
4. Bidding system for blocked days off
The bidding system for days off is also based on seniority within the company. An employee can only request a maximum of 5 blocked days off consecutively once every month and has to request this 4 weeks prior to the roster publication. If an employee with higher seniority has requested the same blocked days off then the employee with lesser seniority will not receive the request for the blocked 5 days off. In summary the bidding system for blocked days off is unpredictable and not guaranteed.
5. …
6. Commuting
Commuting on the days off to anywhere is stressful and time consuming. I am able to spend an average of 8 days per month in Melbourne but not consecutive days.
As mentioned above, the father put into evidence his roster for the period 1 January 2018 to 30 November 2019. It became exhibit A4 in this litigation. The roster was incomprehensible to the uninstructed reader. The father gave evidence to explain its various entries. Essentially, each sheet of paper recorded the relevant Company G employee’s roster on a monthly basis. The first page of exhibit A4 spanned the period from 1 January 2018 to 2 February 2018, in other words, a month. The roster was arranged vertically so it traced the entire month of January 2018. Across the top it was arranged in columns. The column to the right from the date was headed “duty start”. To the right of that was a column headed “duty end”. Self evidently, in combination those two columns were to be construed as the start and end days and times for particular shifts. To the right again, that is to say in the column fourth from the left was a column headed “duty”. The codes of the entries in that column were extensive and needed interpretation as well as explanation especially over the totality of the duration of the roster. Other entries were denoted by a single initial – U, or A or G or O.
Ms Smallwood SC elicited from the father in his evidence-in-chief an interpretation of the letters G, O, A, U and LJ. It is utile to record the questions put to and answers given by the father to explain the entries in the column headed “duty” on the father’s roster. The exchange was as follows –
MS SMALLWOOD: Can you just have a look at this document, please. And I will just explain – have a look at that. And that’s a document which has been generated pursuant to a detailed roster inquiry, correct? That’s the heading on it?
MR GERBER: Yes.
MS SMALLWOOD: And that’s your roster?
MR GERBER: Correct.
MS SMALLWOOD: And you will see there’s some markings on the roster. You will see a faint highlight – well, there’s a copy of a highlighter and those highlighters – marks throughout that document are dates which are Thursday and Friday. You accept that?
MR GERBER: Correct. Yes.
MS SMALLWOOD: Right. And then there’s a hand bracket, so to speak. And the hand brackets – bracket the duties merged G. Can you tell his Honour what the code for – with G is?
MR GERBER: G stands for granted day off, they are guaranteed a day off at my home base in Melbourne.
MS SMALLWOOD: Okay. And we see some other references on the roster. So we know G is a granted day off. What does O mean?
MR GERBER: O day is a day – normally a day off after a duty. However, if there’s roster disruption down route they can cut into this day and then it – I have to work that day and return to Melbourne later. So it is not a guaranteed day off.
MS SMALLWOOD: Okay. And when it’s not a guaranteed day off, are there any restrictions on that day for you?
MR GERBER: I could be called out for a duty. That means no alcohol consumption.
MS SMALLWOOD: Okay. Can you speak up clearly and loudly so – and a bit more slowly so that his Honour can – his Honour may well be hearing you, but I’m finding it a little bit difficult. Okay. And then if I can just go to another code on it, so we can all look at it, the code U?
MR GERBER: U stands for unfit for duty. That’s sick leave.
MS SMALLWOOD: That’s a sick leave. Okay. And what does A mean, the code A?
MR GERBER: A day is a – so is a available day that is in case there is sickness or a technical issue, I can be called out to go to work. And A day, I have a 12 hour callout time from when they call me – 12 hours I have to be there. It’s a type of reserve in case there’s unforeseen circumstances, I can be asked to go to work.
MS SMALLWOOD: Okay. And are there any restrictions on your behaviour on an A day?
MR GERBER: No alcohol consumption.
MS SMALLWOOD: Thank you. Okay. And I believe the L, of course, stands for leave, I take it?
MR GERBER: Yes.
MS SMALLWOOD: And I don’t – are there – I haven’t noticed any other peculiar references. Yes, I have, actually. LJ, which I know you describe as long joker. Can you tell his Honour what a long joker is?
MR GERBER: A joker request system is something they put into place – the rostering system, and you have three longer jokers, which are five days, three a year, and you have to put in your long joker not less than 65 days prior to the – prior to the start of the roster, and they pretty much guarantee you those days off, in case there is a birthday, a wedding, and those restrictions are as I described – 65 days before the start of that roster month where the long joker is requested, and only available three times a year.
MS SMALLWOOD: Right. Okay. So am I – correct understanding is on three occasions each year you’re able to put in a request so that leave days, which you are entitled to, run into a group of five?
MR GERBER: They don’t – do not come out of the leave.
MS SMALLWOOD: Okay?
MR GERBER: They are just granted days off that you can request and you can be pretty much certain of that you will get them.
MS SMALLWOOD: Okay. So are they in addition to your leave, then?
MR GERBER: They’re in addition to leave.
MS SMALLWOOD: So how many – what’s your leave per annum?
MR GERBER: Six weeks.
MS SMALLWOOD: Okay. Six weeks, plus some jokers?
MR GERBER: The jokers are just normal granted days off, but they are requested and they’re pretty much – you can count on that – in that month you will get those days off.
MS SMALLWOOD: Okay. That’s – so ‑ ‑ ‑
HIS HONOUR: So long as you apply 65 days in advance?
MR GERBER: Correct.
MS SMALLWOOD: And so when I say leave, I think that was my fault – in fact, I know it was my fault. Days off – you are not – it is not synonymous with leave in your language, is it?
MR GERBER: Correct.
MS SMALLWOOD: So you’ve got six weeks leave, plus you have days off between flights?
MR GERBER: Correct.
MS SMALLWOOD: Thank you. And jokers relate to, if you like, conglomerating some of those days off between flights so that you get a five day break?
MS SMALLWOOD: And – thank you. There’s also a short joker?
MR GERBER: Correct.
MS SMALLWOOD: And what’s an SJ – a short joker?
MR GERBER: The same thing, but only two days.
MS SMALLWOOD: Thank you. Okay. All right. Your Honour, I seek to tender that document that has been referred to.
HIS HONOUR: What’s the best way to describe it? Is it simply applicant’s roster?
MS SMALLWOOD: It’s – roster inquiry, I would say, was the best way to describe it.
HIS HONOUR: Okay. Exhibit A4 will be applicant’s roster inquiry.
MS SMALLWOOD: From 1 January ’18, it starts.
HIS HONOUR: 1 January 2018 – is there an end date?
MS SMALLWOOD: Yes, there will be. 30 November ’19.
HIS HONOUR: Okay. So I will amend the description. Applicant’s roster inquiry between 1 January 2018 to 30 November 2019. That’s exhibit A4.
In short, the alphabetical codes seemed to mean the following –
a)G – granted day off;
b)O – day off after duty;
c)U – unfit for duty;
d)A – available day;
e)LJ – long joker;
f)SJ – short joker; and
g)L – leave.
Simple as those codes seemed to be, the code did not tell the whole story. In other words, an explanation accompanied each code. It was as follows –
a)G meant granted days off but they were guaranteed days off at an employee’s home base;
b)O meant a day off yet it was not a guaranteed day off as a roster disruption could spell a work day with a later return to the home base;
c)an O day, as distinct from a G day, was not a guaranteed day off with the consequence that on an O day the employee may be called out to duty so he needed to be alcohol-free;
d)U meant unfit for duty, usually on account of ill health;
e)an A day meant an available day rendering the employee amendable to being called out to work upon 12 hours notice having been given with the consequence that it is an alcohol-free day;
f)L was a reference to leave;
g)LJ is a reference to long jokers being three stints each year each of five days, which each employee must embed into his or her roster not less than 65 days prior to the commencement of each employee’s roster for the relevant month, and they are additional to leave days;
h)each employee is entitled to take six weeks off each year as leave plus jokers; and
i)SJ is a reference to short jokers which is two days off (as opposed to an LJ being five).
It can fairly be said that Mr H was correct in his comment –
The bidding system for flights is extremely complicated and is based on the seniority of the employee.
The mother’s version of events
The mother affirmed one affidavit in this case on 22 November 2019. Several exhibits were attached to her affidavit. The following are the more important matters to emerge from the mother’s affidavit –
a)she was born in Country A in 1974;
b)she is engaged in home duties, works in the information industry and in allied health;
c)when working in the information industry, she works one or two hours per week for which she earns $3,000 per annum;
d)she earns about $5,000 per year in allied health but, so she said, the cost of babysitting outweighs the income she derives from the work in allied health;
e)her tax return shows her gross income of $360,000 per annum for the financial year to 30 June 2017;
f)so far as her monthly income was concerned, she said the following at paragraph 6 of her affidavit –
I receive €4,000 per month from the company. The income I actually received was approximately $8,000 from [information industry and allied health] and €4,000 per month in the 2017 financial year;
g)she and the father met in Suburb J, Melbourne in May 2008 and commenced cohabitation in July 2008 although they did not marry;
h)they finally separated in early August 2018 when the father left the former matrimonial home;
i)the children, the father and the mother hold dual citizenships of Country A and Australia;
j)the father has lived in Australia for 10 years whereas the mother has lived in Australia for 21 years;
k)the eldest daughter attends a private school and has done so since she was aged three;
l)the youngest child breast feeds;
m)time spent is as ordered by the Federal Circuit Court of Australia on 8 May 2019, yet the mother said this – “The time is negotiated between us after [Mr Gerber] receives his monthly roster but the negotiations are fraught and I cannot increase my working hours or obtain more certain employment because there is no certainty as to when I can do so.”;
n)each year since the children were born, the mother and father have travelled to Country A with a view to maintaining the children’s connection to Country A;
o)the father consented on 2 July 2019 to an intervention order being made against him without admission;
p)the father recorded the mother breastfeeding their youngest child at a changeover on a date between 19 February and 31 May 2019;
q)on 31 May 2019 the father attempted to steal the mother’s mobile telephone;
r)on 5 October 2019 the father pleaded guilty to contravening the intervention order, he was placed on a good behaviour bond and he was required to contribute $500 to the poor box;
s)the mother wishes to relocate to the wider City K area of Country A; and
t)if the mother is unsuccessful in that application she seeks orders for the children to live with her in Melbourne, to spend time with the father on a increasing basis and that the children be permitted to travel to Country A each year for a total of three months.
The mother offered a snapshot of her two daughters and their respective development at this time in their lives. In relation to the eldest, the mother said the eldest is creative, intelligent and expressive and that she enjoys singing, painting and spending time in nature. The mother said the eldest daughter enjoys swimming and caring for her younger sister. The mother said the eldest daughter is bilingual and chatty.
So far as the youngest daughter was concerned, the mother said she is confident and vibrant as a two and a half year old who enjoys spending time with her sister with whom the youngest has a strong bond. The mother said the youngest child recognises words in the English and Country A languages. The mother said the father and the youngest daughter enjoy outdoor activities together including going to the beach, a pool, a café or other outdoor activity.
The mother said the children are learning from the father about riding a bike as well as roller-skating and skateboarding.
The mother gave illustrations of the way she has encouraged the children to have a favourable and positive relationship with their father since separation. Those were enumerated in paragraph 29.1 to 29.4 of her affidavit.
The mother listed a collection of concerns she said she entertains about the father’s behaviour and its impact on the children. They included –
a)the father’s verbal abuse towards the mother in the presence of the children;
b)the father’s inappropriate belittling of the mother and of the mother’s family members;
c)the father’s involvement of the eldest child in disputes between the parents, especially about the school the eldest should attend and about the mother’s proposed relocation to Country A;
d)the father’s aggression to the mother at changeovers; and
e)how the children return from time with their father in an aggressive and overtired state.
Throughout her affidavit the mother emphasised how the father repeatedly refused to allow the elder daughter to attend a particular school and how he refused to allow the mother to travel to Country A in 2019. The greater emphasis was placed by the mother on what she said was the father’s “history of excessive alcohol consumption” (paragraph 32 of her affidavit). She said that during the relationship the father “often” consumed (she did not say with what frequency) one to two six packs of beer per day or a bottle of wine most days, commencing early in the afternoon. She said that after consuming that quantity of alcohol he fell asleep and, conversely, he was aggressive towards the mother and children if he was not drinking alcohol.
The mother asserted that the father lied to her about his alcohol consumption. She catalogued her assertions in paragraph 33 of her affidavit. It was readily apparent to me from the degree of detail to which the mother descended on the subject of the father’s alcohol consumption that she was hypersensitive about the matter which created a very real obstacle for the mother and father in their own relationship as well as in their effective co-parenting of their children.
No medical evidence in this case was adduced by or on behalf of the mother to verify at a medical or scientific level her assertions of the father’s alcohol abuse. For example, no liver functioning test results were put in evidence, no blood test results were adduced and no evidence from an alcohol dependency expert was given. That left the evidence of the father’s alleged alcohol abuse to be determined, in the main, by assessing the mother’s assertions, the father’s denials of those assertions and a search for the existence of probative corroborative evidence. The mother’s mother’s evidence on point (that is to say the evidence from the maternal grandmother) was largely assertive in nature, unsubstantiated and consisting of little more than baseless accusations. In the passages below I have addressed the mother’s mother’s evidence generally and also on this issue specifically.
The mother raised in her affidavit an event that assumed considerable importance in her cross-examination. It occurred in January 2017 during a lunch at L Town. The mother asserted that the father had earlier consumed up to three pints of beer. The mother said she, the father and the eldest daughter walked along the pier. She said she left the father and daughter at a point on the pier as she went to purchase refreshments from a nearby shop. She said that as she was returning to the pier, she saw the father jump from the pier into the water below and swim a short distance leaving the eldest child by herself next to the railing. The mother said she ran to the eldest daughter who by then was climbing on the railing. She said the father swam back to the pier. The mother said she confronted the father about his leaving their child unattended in response to which, so the mother said, the father said he was gone for a short time and other people were around.
The mother was challenged at length and with considerable force by Ms Smallwood SC about her evidence of the January 2017 episode at the L Town pier. The mother’s viva voce evidence of that episode changed markedly from the version she gave of the event in her affidavit at paragraph 34.5. It seemed to me that the mother’s change of her evidence on this issue went to two matters. The first was the mother’s overall credit, especially highlighting how she was willing to adopt a specific version of events in her affidavit, affirming the truth of which in the witness box, yet quickly modifying that version when pressed under cross-examination. That bore upon the question of whether I should accept her as a witness of truth on whose evidence I was able to place reliance. On that issue, the answer was in the negative. I found the mother to be given to exaggeration where such exaggeration advanced her cause which in this case was the obtaining of orders for the relocation of the children on the basis that the father was not child-focused.
The second matter revealed by the mother’s inconsistent evidence of the event at the pier was the mother’s determination to convey the image that the father was such a poor parent that the mother should be granted the relocation order that she sought.
Returning to the mother’s affidavit, the event to which the mother deposed in paragraph 34.7 fitted into the same category as the pier event. In paragraph 34.7 of her affidavit the mother stated that in August 2017 on a date unspecified, the father took the eldest daughter (then three and a half years of age) to bed at 7pm. The mother said that at 9pm she went to check on her daughter and found that the father was watching something on an electronic device and that instead of being in bed, the eldest child was in the bathroom having emptied the bathroom cupboard and was playing with razor blades.
Ms Smallwood SC cross-examined the mother on those allegations with considerable force, although I hasten to add, at no stage unfairly. That cross-examination exposed the inherent improbability in the version of events given by the mother. The mother put forward as a truthful fact that the couple’s eldest daughter had been playing in the bathroom somewhere between 7 and 9pm, unsupervised, and with unwrapped razor blades without any injury whatever. I am unable to accept the truth of the assertion. Common experience shows that unwrapped razor blades are dangerous to anyone, all the more to a small child. It seemed to me that the mother’s evidence on point revealed that she was again given to exaggeration and she did so with a view of painting the most odious complexion of the father possible thereby seeking to enhance her prospects of success on her relocation application.
The mother’s affidavit was replete with her version of events having some connection or another to the father’s alleged excessive consumption of alcohol. Frequently, the mother’s allegations were no more than unsupported assertion designed to poison the father’s persona. An illustration was paragraph 35. It was in the following terms –
As [X] grew older, [Mr Gerber] became more engaged with her, as he enjoyed doing physical activities with her. However, [Mr Gerber's] excessive alcohol consumption affected his ability to provide for [X’s] other needs.
The mother chronicled episodes in April 2018 during which the mother asserted that the father’s alcohol consumption caused him to fall asleep. The episodes included an incident in M Town Country A during which the mother and the mother’s mother decided against purchasing alcohol for the father. The mother narrated another episode in N State on a date not given during which the mother’s mother was involved (after the event) allegedly being told by the father that she (the mother’s mother) raised her children badly. The mother spoke of an episode at her nephew’s 21st birthday at which, so the mother said, the father arrived and consumed alcohol. The mother deposed to an event on 3 August 2018 at the wedding of one of the mother’s friends. The reception was held at a hotel. Apparently the mother requested the father to take the eldest daughter to the hotel room at 10pm. According to the mother the father refused to do so, saying the eldest daughter could sleep where the reception was being held. The mother then took the youngest daughter to the hotel room and returned 10 minutes later to find the eldest daughter asleep on a couch in the hotel lobby with the father elsewhere. The mother said she was very upset. The mother said the father then said to her the following –
I was very upset. [Mr Gerber] told me “If you ever have a new partner and he touches the children I will kill him but I also have to kill you”.
Unsurprisingly, the words attributed to the father in the passage just quoted were the subject of intense cross-examination. During that questioning I reminded the mother that the words attributed to the father were very serious because, at least on one view, the mother alleged that the father had committed the crime of threat to kill, a most serious crime. I invited the mother to carefully consider her choice of words. She persisted in her evidence that the father said those words. The father had earlier denied saying those words.
It was apparent to me that the mother was endeavouring to introduce into her relocation application evidence of an atmosphere of crisis in which the father was to be taken to be a drunkard, a person who was derelict in his parenting obligations and a person given to making threats of a criminal nature. The mother’s allegations were serious. The last of those, the threat to kill, called for an assessment not merely on the balance of probabilities but on a standard commensurate with the seriousness of the allegation, namely the standard of Briginshaw v Briginshaw.[3]
[3] (1938) 60 CLR 336.
I was not persuaded that the mother discharged that evidentiary standard.
The mother chose to structure her evidence in her affidavit in such a way that the thrust of a conversation with another was recorded in parenthesis, conveying the notion that the mother was directly quoting the words actually said. That was an imprudent approach because words said to have been spoken directly from which the mother was directly quoting self-evidently were not quotes and instead emerged as hearsay. An illustration was paragraph 36.2 of her affidavit on the last line. The mother was not privy to or a participant in a conversation between the mother’s mother and the father yet the mother quoted the words used by her mother and the father despite the fact that the mother was not present.
That approach heightened my suspicion that the mother was not careful in the manner she put evidence before the court in this case. That caused me to examine more closely precisely what she did say on all points. After all, this was a serious relocation application with potentially detrimental consequences to the children and to their relationship with their father if granted. It seemed to me that it was essential for the mother’s allegations against the father to be tested and considered in very real detail, recognising of course, that this application fell to be determined on the balance of probabilities.
Other illustrations of the mother’s use of quoted words allegedly said by a particular speaker were frequent in the mother’s affidavit. Paragraph 48 of her affidavit was replete with such evidence. At no stage did the mother attempt to explain that she was either conveying the thrust of words used or, if she was directly quoting a person, how she was able to quote those words. She said nothing about keeping a notepad on which she wrote words used during a conversation making those notes a contemporaneous record of the words used when the events were fresh in her mind. Evidence about recordings fell into a different category. The simple fact was that the mother put into evidence in direct-speak, words used in conversations, some in which she participated although not all. By that method the mother was endeavouring to elevate the reliability of her version of the relevant conversation. I am unable to accept in relation to the conversations she has quoted as the actual words used, that those words were in all cases actually said. If she was intending to convey that the substance of the words used was to a particular effect, then she should have but failed to say so. Instead, in her affidavit she gave a word perfect account of words used. In paragraph 48.5 of her affidavit that word perfect narrative was akin to a transcript. I am unable to accept that the version given by her was in truth a transcript. Whether the words used by her accurately conveyed the substance of the actual verbal exchange was something else again.
Solicitors preparing affidavits on behalf of their clients and counsel settling those affidavits to be used in litigation in this court are bound by professional obligations concerning the contents of the affidavits. Affidavits must not contain information the deponent knows to be untrue. Affidavits must not contain misleading information to which a deponent swears or affirms. Adducing information in the nature of a transcript of a conversation when the substance of what was said was intended borders on being misleading. That should not be done. In Goodridge v Beadle[4] I carefully analysed aspects of affidavits and the expert learning in relation to them. I repeat here what I said in that case.
[4] (2017) 57 Fam LR 425 (at [169], [171] and [176]).
Elsewhere in paragraph 48 similar issues arose where the mother put into direct-speak significant exchanges especially in relation to the father allegedly denigrating the mother’s family. Paragraph 48.15 is a similar illustration. I have read the information in those paragraphs assessing the likelihood of the direct-speak as allegedly given being true. I have then considered the import of the substance, rather than the alleged transcript of those words, and the impact on this case of the substance of the words used.
The mother asserted that the father insisted that the eldest daughter change schools. The mother asserted that she is bereft of contacts to help her with drop offs.
The mother stated in her affidavit that throughout the relationship the father was verbally abusive towards the mother. In her customary direct-speak quotation method of attributing words used, the mother said the father frequently said the following words to her –
“You will never find another man if you leave me”
“No one would ever stay with you in a relationship, you are just too difficult”
“You are stupid, I don't know how you got your good marks in school?”
“You are unable to sustain life”
“Without your dads money you would be nothing”
“No one in your family has ever worked for money”
“There is something wrong with you”
“Who would want to have sex with you?”
“You do things that are just too stupid, dirty, messy, illogical, so I have to get angry. It’s you who is responsible that I have to get so angry. I don’t get angry with others, just you.”
She said she consulted a counsellor, Ms O in February 2012 to help the mother to deal with the sudden death of her then partner in 2005.
She said that in 2016 the father attended a seminar in Queensland aimed at assisting him to improve the relationship between the mother and father. They later agreed to have another child.
It was readily apparent that by mid 2017 the relationship between the mother and father was in sharp decline. The mother attributed their circumstances to the father’s drinking habits. In late October 2017 the mother said she told the father she wanted to separate. In paragraph 90 of her affidavit the mother said the father’s aggressive behaviour escalated. She used her customary verbatim-style method of recording that the words she asserted were actually said. Events in late October 2018 were particularly difficult for the mother, so she said. The mother purported to narrate a discussion between Ms P and the father during which the father told Ms P who told the mother (even accepting that the formalities of inadmissible hearsay are relaxed in parenting cases, this was on the margins) that the father was the victim of a narcissist. It was apparent that by the beginning of 2019 the relationship between the mother and father had collapsed.
The mother persisted in her injection of an alarmist attitude into the evidence. This was her account of an incident at a changeover in 20 February 2019 –
After the incident at McDonalds on 20 February 2019, [X] was too scared to sleep in a room on her own for a week or so. [X] often spoke to me about dying after this incident. She has said to me “Mom when you are dead, I want to be dead with you. What if I die and you are not there? Who will bury me?”
In support of her application for orders for relocation, the mother advanced in her affidavit a collection of reasons. In no special order, those reasons included the following –
a)the father had previously said to the mother they could live in N State;
b)in 2015 and 2016 the father (according to the wife) said he had been exploring the possibility of employment with other companies;
c)in 2017, according to the mother, the father told her he was “done with Australia” (those precise words being attributed to him);
d)in July 2018 the father told the mother he was moving to Country E to become a senior employee of Company G;
e)from 10 years ago or thereabouts, the mother and father have travelled to Country A, staying there for between one and four months annually;
f)the parents agreed that for as long as they remained in Australia, the mother and father wanted their children to spend three months each year in Country A and in June 2018 the mother, the father, the mother’s father and the children attended an open day at the Q School in M Town;
g)the father’s social group in Australia is minimal;
h)the mother’s family live in or near City K;
i)the mother’s closest friend lives near M Town and works in City K;
j)the mother has cousins in the City K area;
k)the mother has volunteered to transport the children between City K and City R where the father’s parents live, a 250km distance;
l)the father has close friends in the City R area;
m)five of the mother’s friends who she met in Australia have now moved back to Country A;
n)the mother’s family can provide an apartment for the mother and the children until the mother establishes herself;
o)the mother and children will have access to a holiday house near the mother’s mothers home in S Town;
p)the children can spend time with the father at his apartment at T Town;
q)the mother’s family have offered their assistance at changeovers;
r)in view of the different schooling terms in both primary and secondary schools in Country A, the children will have ample time to spend with the father when they relocate to Country A;
s)kindergarten is free in Country A;
t)at least three private schools operate in M Town; and
u)even if the father remained in Australia and the mother and the children relocated to Country A, the children can spend extended time with the father during summer or Christmas holidays as he can apply to be based in Country E or the UK.
The mother deposed to her employment circumstances in Melbourne. In essence she said –
a)for 15 years she had been working in the information industry;
b)she has not worked in the English language;
c)she resigned her position with her employer upon taking maternity leave with the youngest child;
d)her former employer employs only four people Australia-wide as most are contractors;
e)no employment opportunities exist at her former employer in the reasonably near future;
f)in her role in allied health the mother generated an annual income in the order of $5,000; and
g)if she is required to stay in Australia no jobs exist with her skills with the consequence that she would be forced to apply for lower-end administration jobs or jobs in the service industry.
The mother addressed her vocational opportunities in Country A having regard to her existing qualifications and bi-linguistic skills. Those included –
a)U Company in City K;
b)administration jobs in V Town, a 10 minute drive from City K;
c)publishers; and
d)government information organisation in City K.
The mother said that if she lived in Country A she may be able to work in the family business.
The mother said the children have now commenced their vaccination regime. If she is permitted to relocate, the vaccination schedules that were commenced in Melbourne will continue in Country A with the father’s preferred general practitioner, Dr W.
The mother said she has no support network at the school her eldest attends. She said she has limited family relationship in Melbourne.
The mother said she was concerned about the children growing up with no other significant role models in their lives such as grandparents and uncles.
The mother devoted a significant portion of her affidavit to matters of property division. Those issues are generally not relevant to this relocation application, save that the mother’s entitlements from her family company bear upon certain issues pertinent to relocation.
Evidence from the family consultant
Ms C made two reports, the first dated 30 April 2019 and the second 21 December 2019. Ms C also gave viva voce evidence in the case. Let me say at once that I found her evidence to be very useful, informative, considered and balanced. Her recommendations were sound and accorded with my own views about the best interests of the children.
Ms C’s first report
Before descending to the minutiae of her first report it is pertinent to observe that having regard to her studies and many years’ experience as a therapist in private practice from 1991, I unreservedly accept the evidence Ms C gave as being that of an expert, in stricto sensu within the contemplation of the High Court’s statement in Dasreef Pty Ltd v Hawchar.[5] Ms C interviewed the mother, the father and both children on 26 March 2019. Ms C addressed risk factors as between the mother and the father. Ms C said the following of the mother –
Of relationships, Ms Beck said ‘there were three in my life…the first was during school and then in Australia with Mr Z’; Mr Gerber was her third partner. Mr Z was ten years older than Ms Beck [who was 23 years when the relationship commenced] and she said, ‘it was fun and light hearted and we were together for seven years…but he had issues and was diagnosed with drug induced schizophrenia early on…he died of a heart attack just after we separated’.
…
Ms Beck also presented as calm, rational and coherent, although at times she was tearful, particularly in recounting the incidents in which Mr Gerber was allegedly alcohol affected and abusive.
[5] (2011) 243 CLR 588.
Ms C said the mother demonstrated appropriate concern for the children’s welfare.
She said the same thing of the father. Ms C added in paragraph 102 of her report as follows –
Mr Gerber presented as physically fit with no indication of symptoms associated with alcohol abuse, such as visceral obesity, heightened colour, unsteady mobility or impaired cognitive ability. As noted above, Mr Gerber denies the claims of his alcohol abuse and describes himself as a social drinker.
Ms C reported both children demonstrated equally strong bonds with both parents. The risks inherent in the children’s separation from their father was the subject of attention in paragraph 130 of Ms C’s report. It was as follows –
The immediate risk to X and Y’s ongoing development is their separation from Mr Gerber for relatively extended periods of time. It was apparent at the appointment for this report that X and Y were delighted to be with their father, a reunion indicated very strong bonds with him. X and Y sought frequent physical proximity and contact with Mr Gerber, who was consistently and appropriately responsive.
Paragraph 132 was in a similar vein. In it Ms C said the following –
X and Y present with strong and positive bonds with their father and Ms Beck even acknowledges this.
And this at paragraph 135 and 136 –
Nevertheless, X and Y are indicating a level of separation distress from Mr Gerber and given the factors noted above it will be further protective of their development by extending Mr Gerber's caregiving time.
Mr Gerber and Ms Beck present overall as mature and capable adults and they demonstrate the capacity to improve their parenting relationship with the support of a process such as joint counselling, which will be a recommendation of this report.
Ms C said the mother demonstrated competent parenting. She said the same thing about the father.
Ms C had very little adverse to say about either parent. So far as were relevant, Ms C made the following recommendations –
a)the children live with the mother;
b)the children eventually live with their mother and their father in an equal shared care arrangement;
c)until then a gradually introduced arrangement of five overnight times and three days in a fortnight that accords with the father’s work roster is appropriate;
d)day times should be of at six hours duration;
e)the overnight time for the eldest child with the father should commence as soon as possible;
f)when the eldest child is six years old and the youngest child is three years old, the eldest should begin two consecutive overnight times each week with the father and one overnight with the youngest child;
g)at the end of the school year the parents should resolve the commencement of five overnight times and three days in a fortnight that accords with the father’s work roster and a gradually introduced arrangement for the youngest child; and
h)both parents should attend joint parenting counselling.
Ms C’s second report
Ms C’s second report was made on 21 December 2019 pursuant to a request for its provision in my orders of 13 August 2019. Ms C conducted face-to-face interviews with the mother, father and children on 5 December 2019 and subsequently telephone interviews on 16 December 2019 with the father then on 19 December 2019 with the mother.
Ms C’s second report was intended to be updating in nature of the first report. Ms C volunteered the following at paragraph 23 of her second report –
At the interview for this updated report however, Ms Beck referred to her father and stepmother's failing health, not only as a cause for ongoing concern, but a key reason for her application to relocate to Country A.
In paragraph 34 of her second report, Ms C said the following –
In any case, Mr Gerber expressed concern that Ms Beck’s application so soon after consent orders indicated to him that she was not supportive of a facilitative relationship with the children that would require frequent and regular time for them to be in his care.
It is unnecessary to agitate the majority of Ms C’s second report. While she said her second report was an updating report, in reality it began afresh following a template very similar to her first report. A long way into the second report, at paragraph 170, Ms C embarked on an evaluation of the circumstances relevant to this relocation application. It is as well to extract in precise terms the wording used by Ms C. It was as follows –
Mr Gerber and Ms Beck continue to present as competent parents with appropriate attitudes concerning the obligations of parenting. They demonstrate the ability to provide for their children’s welfare, development and safety.
While litigation exposes the areas of dispute about capacity between parents, it continues to be apparent that despite their views of the other’s failings, Mr Gerber and Ms Beck have provided facilitative caregiving for X and Y, given the still young children’s sound development and psychologically secure relationship with each parent.
Whatever the outcome of the relocation question, it will be crucial that Mr Gerber and Ms Beck address their co-parenting relationship with the assistance of a professional with expertise in family law related therapy. Psychological repair and recovery for both parents will be crucial to ensure that X and Y continue to receive the facilitative caregiving that has enabled their sound development thus far.
Relationship breakdown and any ongoing parental acrimony is psychologically taxing and can result in reduced functioning, particularly in relation to emotional wellbeing, as the adults and the children, grieve. Separation and all of its after-effects can be emotionally excruciatingly difficult, as the social science literature has articulated.
In this context, it is entirely understandable that Ms Beck has developed symptoms akin to trauma. She has faced the challenges of sole parenting, the loss of what she hoped would be a supportive long term relationship, and then the absence of what was up till this year, the opportunity to frequently reconnect with her extended family in Country A. The likely loss of the family home and inter alia frequent contact with the school community in which she hoped that both children and she would be sharing the school experience, has likely compounded Ms Beck's uncertainty and anxiety about the future, as well as feeling besieged currently.
Despite the compromises to her emotional wellbeing, Ms Beck considers herself to be psychologically resilient, a mental state and attitude that she has acknowledged fostering over her adult life.
To recover from the debilitating effects of the separation, it will be crucial that Ms Beck undertakes ongoing therapy that addresses the repair to her self-confidence, the building of her psychological resilience, and the strengthening of her capacity to manage an effective co-parenting relationship with Mr Gerber. If she remains living in Melbourne, Ms Beck could attend Ms AA, a clinical psychologist with expertise in family law related therapy. Ms AA practises in Suburb BB.
It was noted in the first family report that Ms Beck will be challenged to objectively evaluate Mr Gerber’s parenting capacity, not from the perspective of her view of their history as it might be amplified by anxiety, but of his actual capacity to provide competent parenting to X and Y.
Now some eight months later, despite the allegations of Mr Gerber’s violence against her and in the presence of the children, Ms Beck seems to perceive him as somewhat more competent, speaking as she did of the children’s enthusiastic engagement with their father, her agreement to the time arrangements for X and Y and her efforts to support the sometimes uncertainty about arrangements caused by Mr Gerber’s work roster.
…
If Ms Beck is not permitted to relocate in the time frame that she proposes, her emotional wellbeing will undoubtedly be further challenged.
Nevertheless, her acknowledged psychological resilience already in place, will assist her to recover and maintain a parenting focus.
Ms Beck has already signalled the possibility of the dismissal of the relocation with her alternative proposal for regular travel back to Country A, essentially a reinstatement of the longstanding arrangement that previously included Mr Gerber.
With the recommended supportive psychological therapy that should also include Mr Gerber when appropriate, Ms Beck’s emotional/psychological wellbeing will recover.
Mr Gerber is also a competent parent, equally mindful of his parenting obligations. He continues to present as attuned to the emotional needs of the children and responsive to the psychological/developmental tasks for both X and Y.
On the basis of the information provided and my observations in the preparation of this updated report, Mr Gerber continues to present as a responsible consumer of alcohol.
Ms C recited the ongoing positive development of both children. Ms C then squarely addressed the potential impact on the children’s significant relationships if they were to relocate to Country A with the mother. Ms C said the following –
This is a central question in any relocation matter, and particularly so for X and Y, given their developmental needs in relation to attachment relationships that form the bedrock for subsequent psychosocial and emotional development.
It is likely for Y that given her stage of actively forming an attachment relationship with her father, this could be considerably disrupted if she is separated for extended periods of time.
The literature supports the need for a consistent and responsive presence of both parents at this stage of a child’s development and in the context of separation, the presence as frequently as possible of the non-resident parent.
…
While Ms Beck has symptoms suggestive of trauma, these are noted to be mild and in the context of the separation, understandable. Given her psychological resources and with expert therapy, and when there is certainty about arrangements including opportunity to regularly visit Country A, Ms Beck will recover.
The timing for X and Y’s extended separation from their father is not optimal, in view of their developmental needs at this point. With the passage of time say a further eighteen months to two years, X and Y will be more developmentally ready to tolerate separation from their father without significant harm to their attachment with him.
Based on their strong ties to Country A, I would support Mr Gerber and Ms Beck remaining open to the prospect of relocation, but at this time, I would respectfully recommend that a passage of untroubled time for X and Y to consolidate their attachment with Mr Gerber, would benefit both children.
Ms Beck’s wish to return to the support of her extended family in the environment with which she is so familiar, is understandable given her need - understandable at this time - to be cared for herself.
Ms B’s evidence
Before going to the cross-examination of Ms C, it is useful to examine the evidence of Ms B. She swore an affidavit on 7 December 2019. She gave as her occupation clinical and counselling psychologist. Ms B said that the mother’s general practitioner referred the mother to Ms B for treatment on 9 March 2018. Ms B produced a single sheet of information that I took to be something of a short form curriculum vitae. It did not descend into the detail of which Heydon JA spoke in Makita (Australia) Pty Ltd v Sprowles[6] or of which his Honour spoke in Dasreef Pty Ltd v Hawchar. That said, Ms B did say that she was a registered clinical and counselling psychologist and that she held a master’s degree in psychology although she did not say from which tertiary institution she obtained that degree or the year of conferral. She said she had 23 years’ experience, although she did not say in what field or discipline. In seeking to understand her professional history, it seems she obtained a bachelor of behavioural science in 1999, in 2002 she obtained a master’s degree in psychology and in 2007 she obtained (what seemed to be a second master’s degree from the same university), namely a master’s degree in counselling psychology. Since 2001 she said she worked in a community health centre at the same time performing the role of a men’s behavioural change programme facilitator, for five years she was a family counsellor, she was a specialist family violence group supervisor during 2008 and 2009 and she occupied a similar role during 2010 and 2011 with another agency. She opened her own clinic in 2008 where she has been the principal psychologist from 2008 to date.
[6] (2001) 52 NSWLR 705.
On examining Ms B’s work history resume, I searched (albeit unsuccessfully) for evidence of previous roles in which she had been engaged where she had offered an opinion about the impact on children of one parent’s relocation to that parent’s country of birth over the protests of that person’s former partner and parent to their children whose place of birth was also the proposed relocation destination.
Ms B provided a report to the mother’s general practitioner in March 2018. So far as her recommendations were concerned, she said the following in March 2018 –
Ms Beck is struggling living in her current relationship. She requires ongoing emotional and practical support to assist her in finding the space and time to come to some decisions about her future. Therefore, it is recommended that Ms Beck continue treatment.
On 7 November 2019 the mother’s solicitors wrote to Ms B posing 13 questions for Ms B’s response. It is useful to record those 13 questions. They were –
1. Why did Ms Beck seek counselling/treatment from you?
2.How many times have you met with Ms Beck and what was the date of each appointment?
3.Do you have any knowledge as to whether Ms Beck has previously sought the assistance of a psychologist as a result of suffering mental health issues, particularly in relation to anxiety and depression? If yes, what are you aware of?
4.Has Ms Beck discussed with you any issues arising out of her relationship with Mr Gerber? If yes, what are those issues?
5.What is your diagnosis (if you can make one) of Ms Beck’s mental health?
6.What symptoms does Ms Beck display which resulted in your diagnosis?
7.Generally, what is your observation (if any) of how those symptoms affect Ms Beck’s functioning in everyday life?
8.What is your opinion about the factors/triggers (if any) that have contributed to Ms Beck’s mental health condition?
9.Did Ms Beck discuss with you the importance (if any) to her of living in close proximity to family and having family support? If yes, what is your opinion about the impact on Ms Beck of receiving such support or lack of such support?
10.What current treatment, management and/or therapy is Ms Beck receiving in relation to any diagnosed mental health condition?
11. What is your opinion about Ms Beck’s current mental health?
12.How regularly do you expect Ms Beck to undertake treatment in the foreseeable future in relation to any mental health concerns (if at all)?
13.In your opinion, what is the likely impact on Ms Beck in the event that she is unable to return to live in Country A?
At once it will be apparent that the short form curriculum vitae that Ms B provided offered no insight into whether she was professionally qualified (in the manner stated in Makita and Dasreef) to express the opinions sought. Ms Smallwood SC hinted at the point yet did not object to Ms B giving evidence in the overall. That objection was open, it seemed to me. Ms Smallwood SC seemed to be content to let the evidence in then to later address on the forensic and evidentiary value of Ms B’s evidence.
At all events, in Ms B’s report she stated that she had consulted with the mother on 16 occasions, each of one hour’s duration in the period Match 2018 to October 2019. Ms B offered the diagnosis that the mother suffered post-traumatic stress disorder in a mild form. As it happened, Ms C broadly or loosely acquiesced in that diagnosis when she was cross-examined by Dr Ingleby. The exchange with Ms C on point was as follows –
DR INGLEBY: First of all, you agree that my client has symptoms suggestive of trauma, don’t you?
MS C: Yes.
DR INGLEBY: Right. So you don't challenge Ms B’s diagnosis of post-traumatic stress disorder, do you?
MS C: No.
DR INGLEBY: No. You go on to say that the symptoms are mild, don’t you?
MS C: Ms B referred to them as mild.[7]
[7] T535 L 32 – 39.
In answer to question six of the list of 13 identified above, Ms B purported to give a response concerning the symptoms the mother displayed that resulted in Ms B’s diagnosis of post-traumatic stress disorder. Without any explanation or a link between her conclusion and the chain of reasoning to support it (fundamental, according to the High Court in Dasreef and to the Court of Appeal in Makita) Ms B said the following –
Difficulty sleeping ranging from interrupted sleep to sleeping a few hours each night to waking in the early hours of the morning. Frequent episodes of hyperarousal and hypervigilance. Guilt, shame and self blame. Increased anxiety and emotional arousal, depression, hopelessness, insomnia, and overall fatigue.
That is not to say that prior to the 2006 Family Law Amendment (Shared Parental Responsibility) Act the notion of relocation was absent from the Family Law Act. It was embedded in differently numbered sections of the Act then in operation. Those provisions were considered by the High Court in AMS & AIF.[60] In that case, Kirby J set out nine propositions that represented general principles relevant to a relocation case. It is useful to set them out in précis form –
[60] (1999) 199 CLR 160.
a)first, each case depends on the application of the governing legislation which is in a constant state of amendment and reexpression;
b)second, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in the context of the proposed relocation of the parent with whom the child resides;
c)third, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court making the decision to ignore the legitimate interests and desires of the parents and if there is conflict between those considerations, priority must be accorded to the child’s welfare and rights;
d)fourth, having regard to a court’s reluctance to interfere in the freedom of a parent with whom a child lives, the applicable legislation is enacted and relevant discretions are exercised for a society that attaches high importance to freedom of movement and the rights of adults to decide where they will live;
e)fifth, while legislative reform (sometimes reflective of international law) has laid increased emphasis on the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one;
f)six, a more relaxed attitude should be adopted to relocation within Australia than relocation overseas;
g)seven, where a parent seeks to change arrangements affecting the residence of or contact with the child, the parent must demonstrate that the new arrangement is for the welfare of or in the best interests of the child;
h)eight, departure from the norm of shared parental responsibility is within the court’s discretion; and
i)nine, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety analysis of the primary judge’s reasons given the large element of judgment, discretion and intuition which is involved.
Those observations were set against a legislative backdrop that preceded the 2006 amendments to the Family Law Act yet they have ongoing application to the existing emanation of the Family Law Act and have been applied by Full Courts since 2006.
An early exposition of the operation of the 2006 amendments in the context of a relocation application was the decision of Dessau J in M v S,[61] judgment in which was handed down on 21 December 2006. There, her Honour (as her Excellency then was) traced through the provisions of the Family Law Act in logical sequence. It is utile to paraphrase her Honour’s approach in the following way –
a)in deciding a particular parenting order the best interest of the child is the paramount consideration: s 60CA;
b)a presumption exists that it is in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA;
c)as the concept of equal shared parental responsibility does not relate to the time the child spends with each parent, the court is required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA(1)(a)) and whether it is reasonably practicable (s 65DAA(1)) and then to consider an order for equal time (s 65DAA(1)(c));
d)if the court does not make an order for equal time the court must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA(2)(c)) and whether it is reasonably practicable (s 65DAA(2)(d)) and then to consider an order for substantial and significant time (s 65DAA(2)(e)).
e)the concept of “substantial an significant time” is defined in s 65DAA(3);
f)when considering propositions of “reasonable practicability”, s 65DAA(5) sets out the matters the court must consider.
[61] (2006) 37 Fam LR 32.
Thus far, none of her Honour’s comments touched on the criteria to be established when considering an application for relocation. However, her Honour pointed out that the legislation does not include a provision about relocation and the proposal recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its report on the exposure draft of the 2005 bill was not adopted. In M v S her Honour (at paragraph [38]) said the following about whether an applicant for a relocation order bore any onus of proof –
Counsel for the father submitted that the new Pt VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
Ultimately her Honour made a relocation order in that case.
The decision in Morgan v AA[62] is frequently cited as the locus classicus on the criteria to be established in an application for a relocation order. It must be acknowledged that the decision of Boland J in that case has been widely accepted, not the least reason for its consideration of the appropriateness of orders in the nature of relocation orders made at an interim stage. Boland J held that earlier core principles, that is to say, core principles that predated the operation of the 2006 amendments remain valid, those being –
a)that the child’s best interests remain the paramount but not sole consideration;
b)that a parent wishing to move does not need to demonstrate “compelling” reasons;
c)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
d)the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.
[62] (2007) 38 Fam LR 275.
Boland J further held that the 2006 amendments required a consideration of the criteria in s 60CC as informed by s 60B plus the consequences of an order being made for sole parental responsibility. On the facts of that case Boland J held that distance per se was not the determinative criteria. Her Honour held that the relevant issue was the consequence of relocation. Hence, the legislation contains no definition of local, intrastate, interstate or international relocation.
More recently, the Full Court has embraced the notion that relocation is not to be dealt with as a discrete issue but rather as just one of the matters that are under consideration for the child’s future living arrangements. That was the upshot of decisions that preceded the 2006 amendments in U v U[63] and Bolitho v Cohen.[64] In the 2007 decision of the Full Court in Taylor v Barker such an approach was restated. The Full Court decided Sampson v Hartnett[65] a month and three days after Taylor v Barker was decided yet in Sampson, Taylor was not mentioned at all. That may be accounted for on the basis that in Sampson the trial judge made orders requiring the mother to relocate with her child from Melbourne to Sydney and the Full Court was required to pass upon on the jurisprudential basis (especially the power) for the making of that order. While not relevant to the determination of this case, former Family Court Justice Richard Chisholm wrote about the subject in his article To What Extent Can The Court Make Orders That Inhibit a Parent’s Right to Relocate? Sampson v Hartnett (No 10).[66]
[63] (2002) 211 CLR 238.
[64] (2005) 33 Fam LR 471.
[65] (2007) 38 Fam LR 315.
[66] (2008) Australian Family Law Bulletin 934.
Given that a court must engage in a consideration of s 65DAA(1), the observations of the High Court in MRR v GR[67] about the imperative nature of its terms must be addressed. The relevant passage is as follows –
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order.
[67] (2010) 240 CLR 461.
Elsewhere, the plurality held as follows –
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The High Court held that the Full Court erred by upholding the decision of a magistrate and by dismissing the appeal from the magistrate. At paragraph [19] of its reasons the plurality held as follows –
The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child’s best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.
As has been recorded above, in Sigley v Evor[68] the Full Court approached the determination of an intrastate relocation application by reference to considerations of whether the children would have a meaningful relationship within the contemplation of s 60B(1)(a) if the relocation was permitted. The Full Court then applied the primary and additional considerations in s 60CC(2)(a) and s 60CC(3) respectively.
[68] (2011) 44 Fam LR 439.
The need for a trial judge such as me to provide sufficient reasons that address the difficulties involved in the time sharing arrangement after the children commence school was the focus of the decision in Adams v Randall.[69] The Full Court in Adams v Randall held that the principles governing the adequacy of reasons were set out in In the Marriage of MJ & KH Bennett.[70] With respect, the principles go very much further than those canvassed in that case, as I wrote about in an article concerning the adequacy of curial and arbitral reasons.[71]
[69] (2011) 46 Fam LR 453.
[70] (1990) 14 Fam LR 397.
[71] Dr Josh Wilson QC, ‘Adequate Arbitral Reasons After Westport – Has the Tension Been Resolved to Any Real Degree?’ (2015) 34 Arbitrator & Mediator 9.
In that article I said the following –
(a)reasons must include (a) relevant evidence, (b) any material findings of fact and conclusions and (c) why the judge found those facts and drew those conclusions;[72]
[72]Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at [441].
(b)the reasons must set out in full the grounds that led the judge to a conclusion on a disputed factual issue and the findings on the principal contested issue;[73]
[73]Soulemezis v Dudley Holdings Ply Ltd (1987) 10 NSWLR 247, 260 (Kirby P).
(c)the findings in respect of every fact leading to or relevant to the judge's final conclusion of fact need not be stated nor one fact to the next along a chain of inference leading to the ultimate conclusion;[74]
(d)bald statements of ultimate conclusion are unlikely to be sufficient.[75] It is not sufficient to set out arguments of both sides then to state that one party's contentions are to be preferred over the others;[76]
(e)any submission worthy of serious consideration should ordinarily receive some attention in the reasons;[77]
(f)but the judge is not required to address every submission advanced in the hearing;[78]
(g)if credibility is an issue, it is necessary for the judge to state not merely whose evidence the judge accepts and also to explain, in appropriate detail, why the judge reached that conclusion;[79]
(h)reasons should trace the major steps in the reasoning process so that anyone reading the reasons can understand exactly how the judge came to the conclusion the judge did;[80]
(i)summarising the evidence on which one party relies is not sufficient where the judge relied on certain specific evidence and the reason why it was relied upon should be stated;
(j)reasons should deal with the substantive points raised by the parties, including findings on material questions of fact, refer to the evidence or other material upon which those findings were based and provide an intelligible explanation of the process that led the judge from the evidence to the findings and from the findings to the ultimate conclusion;[81]
(k)where the judge rejects evidence, the judge should refer to that evidence and explain why it was rejected;[82]
(l)merely reciting the evidence, followed by a statement of findings without explanation as to why the evidence was said to lead to the findings is ‘about as good as useless’.[83]
[74] Ibid, 279 (Mahoney JA).
[75] The Honourable Justice Mark Weinberg, ‘Adequate, Sufficient, and Excessive Reasons’ (2014) 5 Victorian Judicial Scholarship [1]-[36], [18].
[76] Ibid.
[77]Sydney Water Corporation Ltd v Aqua Clear Technology Pty Ltd [1996] NSWSC 640.
[78] The Honourable Justice Mark Weinberg, above n 56, [20]-[21].
[79] Ibid [22].
[80] Ibid [25].
[81] Hunter v Transport Accident Commission [2005] VSCA 1 [21] (Nettle JA, as His Honour then was); Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18.
[82]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 (Ashley JA).
[83] Ibid, 37.
To those authorities may be added the decision of the Appeal Division of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud[84] and the decision of the Court of Appeal of the Supreme Court of New South Wales in Pollard v RRR Corporation Pty Ltd,[85] both of which were considered by the Full Court of this court in Garrety v Steyn[86] judgment in which was handed down yesterday, 1 August 2019.
[84] [1989] VR 8.
[85] [2009] NSWCA 110.
[86] [2019] FamCAFC 124.
One of the last decisions in my survey of the authorities concerning relocation is the Full Court’s treatment of the point in Blanding v Blanding.[87] In that case the Full Court rejected the criticism levelled at the trial judge for allegedly failing to consider whether the children spending substantial and significant time with the parties was in their best interests and reasonably practicable. The Full Court held that the trial judge made no error in discussing the proposals propounded by the parties. On 31 July 2019 the Full Court decided Babcock & Waddell,[88] a relocation case. There the Full Court was influenced by the decision of the UK High Court in Re TC & JC (Children Relocation)[89] where the High Court held –
(a)is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?;
(b)is the application realistically founded on practical proposals both well researched and investigated?;
(c)what would be the impact on the applicant, either as a single parent or as a new spouse or partner, of a refusal of a realistic proposal?;
(d)is the other parent or person’s opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?;
(e)what would be the extent of the detriment to the father and his future relationship with the child if the application were to be granted?; and
(f)to what extent would that detriment be offset by the extension of the child's relationships with the applicant’s family?
[87] (2016) 55 Fam LR 218.
[88] [2019] FamCAFC 129.
[89] [2013] EWHC 292.
In that same case the Full Court embraced the decision of Lord C of Tullybelton in G & G[90] where his Lordship said as follows –
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
[90] [1985] FLR 894.
International relocation
Reported cases where an order for international relocation has been sought are plentiful. They include Amador & Amador,[91] Cape v Cape,[92] Banks & Banks,[93] Kuan & Toh,[94] Zahawi & Rayne,[95] Hutcheson & Meli,[96] Molloy & Reid[97] and Kerson & Blake.[98] A recent consideration of the point was made by the Full Court in Franklyn & Franklyn.[99] None of those decisions alter my analysis of the relevant considerations that a court must address when considering an international relocation.
[91] (2009) 43 Fam LR 268.
[92] (2013) 50 Fam LR 1.
[93] [2015] FamCAFC 36.
[94] [2016] FamCAFC 115.
[95] [2016] FamCAFC 90.
[96] [2016] FamCAFC 258.
[97] [2018] FamCAFC 89.
[98] [2018] FamCAFC 215.
[99] [2019] FamCAFC 256.
Reasonably recently, in Hendy & Penningh[100] a differently constituted Full Court considered a challenge in a relocation case in which it was alleged that the learned trial judge failed to address the advantages and disadvantages of the proposed relocation, in accordance with the High Court’s statements of principle in U v U.[101] Accordingly, one of the starting points in addressing a proposed relocation is a consideration of the advantages and disadvantages of the proposal. To that I now turn.
[100] [2018] FamCAFC 257.
[101] (2002) 211 CLR 238.
Details of the mother’s proposal
In the mother’s case outline, marked as an attachment, was a minute of the orders she sought for the father’s time with the children if orders were made permitting her to relocate to Country A. They were as follows –
4.That whenever the Father is in Country A he spend time and communicate with the children in accordance with paragraphs 7, 11 to 14 (inclusive) below.
7.That the Father spend time with the children as follows:
a.Up to and including Y’s 3rd birthday on … May 2020 in accordance with paragraphs 3, 4 and 5 of the existing Court Order made on 8 May 2019.
b.After … May 2020, each week:
i.For X, from the conclusion of school (or 3.00pm if a non-schoolday) on Thursday until 3.00pm on Saturday
ii.For Y, from 9.00am on Friday (being after X has been delivered to school) until 3.00pm on Saturday
c.After … May 2021, on a 2 week cycle:
i.Week 1:
1.For X, from the conclusion of school (or 3.00pm if a non-school day) on Thursday until 9.00am on Saturday
2.For Y, from 9.00am on Friday (being after X has been delivered to school) until 9.00am on Saturday
ii.Week 2:
1.For X, from the conclusion of school (or 3.00pm if a non-school day) on Thursday until 3.00pm on Sunday;
2.For Y, from 9.00am on Friday (being after X has been delivered to school) until 3.00pm on Sunday
d.After … May 2022, on a 2 week cycle, for both children:
i.Week 1: from the conclusion of school (or 3.00pm if a non-school day) on Thursday until 3.00pm on Sunday
ii.Week 2: from the conclusion of school (or 3.00pm if a non-school day) on Wednesday until the commencement of school (or 9.00am if a non-school day) on Friday;
e.After … May 2023, each alternate weekend from the conclusion of school (or 3.00pm if a non-school day) on Wednesday until the commencement of school (or 9.00am if a non-school day) Monday.
11.The children spend time with the Father on the following special occasions:
(a)For Christmas each year:
(i) If the children are in Australia: From 10:00am to 8:00pm on Christmas Day; or
(ii)If the children are in Country A: From 12 noon to 8:00pm on Christmas Day.
(b)On the Father’s birthday on … December from 9:00am to 9:00am on 10 December
(c)For 2 hours on the children’s birthdays as agreed between the parties in writing, and failing agreement from 3:00pm to 5:00pm on the child’s birthday; and
(d)On Father’s Day from 9:00am to 5:00pm; and
(e)At such other times as agreed between the parties in writing.
14.That the Mother and the Father each be permitted to contact the children by telephone, FaceTime, WhatsApp or equivalent means of communication for up to 30 minutes every second day between 6.00pm and 7.00pm (in the time zone where the children are spending time) when in the care of the other parent, and the parent who is caring for the children will initiate the call.
The father produced a document, being his proposal for his time with his children in the event a relocation order was made. It was as follows –
1. The father spend time and communicate with the children as follows:
a. In Australia for a period of 21 days as follows:
i. For the first 7 days the children are in Australia, each day from 10am until 7pm
ii. From the 8th day until the 21st day
b. In Country A for a period of up to 14 days as follows:
i. For the first 7 days the father is in Country A, each day from 10am until 7pm
ii. From the 8th day until the 21st day
2.The father’s time with the children pursuant to these orders be suspended from 2pm until 8pm on the 14th day of each of the periods referred to in paragraph 1 above.
3.The father to ensure the children attend their regular school and kindergarten commitments whilst the children are in his care in Country A.
4.The father provide the mother with 45 days written notice of the dates he will be available to spend time with the children in Country A and Australia.
5.The father use his best endeavours to permit the time referred to in 1 above occurs in the northern hemisphere summer school holiday period.
6.The mother be responsible for the payment of the airfares required to give effect orders 1a above.
7.The father be responsible for the payment of the airfares required to give effect to orders 1b above.
The father was cross-examined on the mother’s relocation proposal and in particular, her proposal for the father to spend time with the children. Dr Ingleby cross-examined the father about the similarities between the mother’s proposal as compared with the father’s own proposal. It was put to the father that he was able to travel to Country A far more often than once a year, a question with which the father disagreed. It was suggested that the father had five jokers at his disposal yet the father said those five jokers could not be connected to holidays. The father was questioned about the possibility of his taking three trips to Country A each year to which the father responded by saying that any such ability depended on how his holidays were granted. He added that he could request holidays on certain dates so that he could spend summer in Country A yet he said that in all likelihood such a request would be refused on the basis that it was peak season, in which case he would not be available to see his children as he would need to go to work. He said he took long service leave in order to travel to Country A in July and August 2019.
The father’s responses were appropriate. They did not warrant the question put as follows –
DR INGLEBY: See, what I’m suggesting to you, Mr Gerber, is that you’re deliberately – sorry, I will start again. You are underestimating the amount of time that you could spend in Country A if Ms Beck was allowed to go to Country A?
MR GERBER: Incorrect.
Aside from Ms C’s overall thesis that a relocation is presently undesirable for the children, the mother’s proposal (even assuming that a relocation order was in the best interests of the children – which assumption I refuse to make) was bedevilled with uncertainty. That was mainly on account of the significant unpredictabilities associated with the father’s roster. Of course, that is not to say that the roster of one parent can operate in such a way that it holds the other parent to ransom. But the father’s role, as a high ranking employee in GA, is of longstanding. He did not become an international employee only to thwart the possibility of relocation.
I do not share the mother’s optimism for the roster to operate in the way she said it could, as evidenced by Dr Ingleby’s cross-examination of the father. Moreover, even if the mother’s proposal enjoyed the favourable prospects she said it offered for the father’s time with his daughters, I entertain very real fear that the mother will not give effect to her proposal. I do not regard her as a person who is to be trusted in relation to the children’s interaction with the father. She and the father have a toxic relationship (the father called it that). The mother was extremely quick to install a supervisor to monitor the interaction of the father and his children. The mother was given to exaggeration. The mother’s statement of her family’s willingness and ability to support her and the children in Country A was a significant overstatement as most lived in parts of Country A that required significant travel to reach. While I found the mother’s sister to have been a reliable witness, the mother’s mother was far from reliable or honest in her evidence to me.
In my view, the mother was, in truth, actuated by her own wishes in seeking the relocation order. She was not motivated by the best interests of the children. If I were to make the relocation order sought, a very real risk presents itself that the children would have next to no time with their father, a prospect wholly antithetical to the workings of the Family Law Act.
In assessing this relocation application I have used as a guiding concept the statement of principle adumbrated by Boland J in Morgan v AA.[102] Further in addressing the matters raised in s 65DAA for the court’s consideration, as the court must consider in accordance with the High Court’s pronouncement in MRR v GR,[103] equal time is not feasible under the mother’s proposal. For that matter, under the mother’s proposal substantial and significant time with the father will not be provided by the mother’s proposal, to say nothing of it not being reasonably practicable. The mother’s proposal does not offer a facility for the children to have a meaningful relationship with their father, within the contemplation of the ratio decidendi in Sigley v Evor.[104]
[102] (2007) 38 Fam LR 275.
[103] (2010) 240 CLR 461.
[104] (2011) 44 Fam LR 439.
In my judgment the mother’s relocation proposal offers no prospect whatever of equal time between the father and his children, that is to say, an equal amount of time equivalent to that enjoyed by the mother. In my view the mother’s proposal does not offer substantial and significant time for the father that is reasonably practicable. In my view the mother’s proposal for relocation will deny the children a meaningful relationship with the father.
Of course, the legal inquiry does not end there because it is next necessary to ascertain the best interests of the children by reference to the statutory criteria prescribed by s 60CC, especially s 60CC(3). Each separate criteria requires separate treatment even though none operates in such a way as to predominate over any other and, also, even though certain overlap exist in the subsections.
Section 60CC(3) considerations
Under s 60CC(3)(a) it is relevant to consider any views expressed by the child. Here, the youngest child’s language skills are very limited and she is too young to express a view on which I could safely rely. The eldest has indicated certain views yet she is also very young. Both children have close bonds with both parents.
Under s 60CC(3)(b) it is relevant for me to consider the nature of the relationship of each child with each parent and other persons such as but not limited to grandparents. Each child has a very good relationship with each parent. The mother’s sister seemed to have a good relationship with the children, as do the father’s parents. The maternal grandmother’s relationship fell into a different category. She may well have appeared concerned for the children, nevertheless she was willing to participate in fraudulent activities in relation to Dr QQ’s document falsification. I therefore discount the true nature of her relationship with the children as she was willing to participate in the doing of unlawful acts.
Under s 60CC(3)(c), it is relevant to examine the extent to which each parent has taken or failed to take the opportunity to participate in major decision making, to spend time with the children and to communicate with the children. In my view each parent has favourably undertaken each. It is relevant to record Ms C’s agreement to the proposition put to her in cross-examination by Ms Smallwood to the effect that the mother takes the view she is the superior parent. Nonetheless, the father has faithfully and dutifully discharged his obligations after which this subsection inquires.
Under s 60CC(3)(ca) it is necessary to consider the extent to which each parent has fulfilled or failed to fulfil the parent’s obligation to maintain the child. No issue arose in this case about maintaining the children. The children have the good fortune to be raised in circumstances where financial issues have not touched them.
Section 60CC(3)(d) is of particular relevance in this case. That subsection commands an investigation into the likely effect of any changes in the children’s circumstances including the likely effect on the children of separation from either parent or any other child with whom the children have been living. In this case Ms C has indicated that separation of the children, especially the youngest, from the father will drastically and adversely affect the bond to be formed between the children and their father. This issue has weighed most heavily upon me in determining this case. In my view, it is one of the most important issues in the case. I accept Ms C’s evidence on point without reservation and prefer its importance over the mother’s wish to return to (what Ms Smallwood put on five separate occasions)[105] “the bosom of (her) family”. There was no other child with whom the children were living for the purposes of this subsection.
[105] T311, 319, 320, 378 and 382.
Section 60CC(3)(e) presented a further critically relevant issue for consideration. It was the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense substantially affects the child’s right to maintain personal relations and direct contact with both parents on a regular basis. In view of the father’s roster, the mother’s proposal to relocate to Country A will create practical difficulty and expense to ensure the children see their father and insodoing it will substantially affect the children’s right to maintain personal relations and direct contact with the father. Viewed from the children’s perspective, their right to see and spend time with their father will be substantially impaired by the mother’s proposal.
Under s 60CC(3)(f) it is necessary to consider the capacity of each parent and any other person to provide for the needs of the children including emotional and intellectual needs. In this case both parents are educated and provide in different ways for the intellectual and emotional needs of the children. Some evidence was adduced about the willingness of certain family members in Country A to immerse themselves in daily chores relating to the children such as school drop-offs and collections. Yet no evidence that I regarded as useful was adduced about persons in Country A providing for the emotional and intellectual needs of the children. In my view, the best people to provide for the emotional and intellectual needs of the children are the mother and father. If the mother’s relocation proposal is given effect, the capacity of the father, being one parent, to meet those emotional and intellectual needs of the children is severely constrained and curtailed to the obvious detriment of the children.
Section 60CC(3)(g) involves a consideration of the sex, lifestyle and background of the children and their parents. Here, the parents are bilingual and they observe the Country A culture as well as the Australian way of life. The children have been raised in both cultures making regular visits to Country A.
Section 60CC(3)(h) is irrelevant as the children are not aboriginal or Torres Strait Islanders.
Section 60CC(3)(i) invites an enquiry into each parent’s attitude to the children and to the responsibilities of parenthood. I am willing to proceed on the basis that each parent is fully cognisant of the responsibilities of parenthood and each displays a protective, loving and nurturing attitude to the children. That view seems to be shared by Ms C.
Section 60CC(3)(j) & (k) invited an investigation into family violence. In this case the mother obtained one or more intervention orders against the father, including an interim intervention order dated 13 November 2018 and a final intervention order, without admission, dated 2 July 2019 for a period of 12 months. The father was later charged with one count of breaching the intervention order and one count of surveillance. On 2 October 2019, upon the father admitting to the facts of the charge and a subsequent recommendation by Victoria Police to the court, the charge was struck out and a diversion order was made in relation to the contravention of the interim intervention order. The father deposed in his 4 December 2019 affidavit that the breach will be struck out without further notice on 13 May 2020 provided that he has satisfied the condition of a $500 donation pursuant to the diversion plan dated 21 November 2019. Exhibited to his affidavit was the diversion plan which identified the charge as “Breach Intervention Order X1”, with the father having acknowledged responsibility for the offence.
Section 60CC(3)(l) requires a consideration of whether it would be preferable to make the order that would be least likely to lead to the institution of further litigation concerning the children. This was a trial within a trial but limited only to a relocation order.
As mentioned earlier, none of the separate provisions of s 60CC(3) predominates over others. They are to be taken in aggregate.
Conclusion
The mother’s relocation application has failed. Ongoing parenting issues remain. I direct the parties to email my associates within 14 days with a minute of proposed orders, preferably an agreed minute. If debate must be held about ongoing aspects of this case, the legal representatives are invited to consider the court protocols that apply during the operation of protocols concerning the coronavirus COVID-19.
As a final parting note, as at the day of handing down these reasons most of Europe, including Country A, is in lockdown by reason of the worldwide coronavirus COVID-19 pandemic. It would be near impossible to procure international travel arrangements to Country A. In any event, it would be highly irresponsible for the children to be taken from Australia or for that matter, to fail to comply with social distancing protocols. Whether travel bans will lift by the start of the European school year is yet to be seen. But in the circumstances of this case the point is largely irrelevant having regard to my conclusions.
I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 8 April 2020.
Associate:
Date: 8 April 2020
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