Goodwin v Kester
[2022] FedCFamC2F 743
•8 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Goodwin & Kester [2022] FedCFamC2F 743
File number(s): MLC 7653 of 2021 Judgment of: JUDGE BURT Date of judgment: 8 June 2022 Catchwords: FAMILY LAW – Parenting – interstate relocation – young children – finely balanced case Legislation: Criminal Code Act 1995 (Vic) ss 134.2, 136.1, 135.2
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited: Masson v Parsons (2019) 266 CLR 55
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR [2010] 240 CLR 461; (2010) 263 ALR 368; (2010 84 ALJR 220; (2010 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4
Re Andrews (1996) 132 FLR 118; (1996) 20 Fam LR 538; (1996) FLC 92-692
Taylor & Barker (2007) 214 FLR 433; (2007) 37 Fam LR 461; (2007) FLC 93-345; [2007] FamCA 1246
Division: Division 2 Family Law Number of paragraphs: 112 Date of hearing: 9, 10 and 11 May 2022 Place: Melbourne Counsel for the Applicant: Mr Gates Solicitor for the Applicant: Dinning & Co Counsel for the Respondent: Ms Miller Solicitor for the Respondent: P Law Firm ORDERS
MLC7653 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GOODWIN
Applicant
AND: MS KESTER
Respondent
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
8 JUNE 2022
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children of the relationship, namely X, born in 2017 and Y, born in 2019 (“the children”).
2.The mother’s application for permission to relocate the residence of the children to the Town B region of South Australia be dismissed.
3.In the event that the mother resides within 80 kilometres by road from C School, Town C, NSW, the children shall live with the mother and the father in alternate weeks, with changeover taking place at 3.30 pm (or the end of the school day if the children or either of them are attending kinder or school) each Friday.
4.In the event that the mother does not reside within 80 kilometres by road from C School, Town C, NSW:
(a)the children live with the father;
(b)the children spend time and communicate with the mother:
(i)during the NSW gazetted school terms on alternate weekends as follows:
A.for weekend 1 of a 4-week cycle in Town B from 5.30pm (SA Time) on Friday until 3.30pm (SA Time) on Sunday with changeover to occur at Town D McDonalds, SA; and
B.for weekend 2 of a 4-week cycle in Region H with the mother to travel to collect the children from the father’s residence (or at a place otherwise agreed) from after school on Friday until 6pm on Sunday;
(ii)during the first half of each NSW gazetted school term holiday with changeover to occur at Town D McDonalds, SA; and
(iii)for the long summer vacation period on a week about basis commencing on the second Saturday after Boxing Day at 12 noon and each alternate week thereafter.
5.The children shall spend time with the parents for Christmas as agreed between the parents and in default of agreement as follows:
(a)in each even-numbered year with the mother from 12 noon Christmas Eve until 12 noon on Boxing Day; and
(b)in each odd-numbered year with the father from 12 noon on Christmas Eve until 12 noon on Boxing Day in each even year commencing 2024.
6.In the event that the children are not in the father’s care they shall spend time with him from 4pm on the Saturday prior to Father’s Day until 4pm on Father’s Day.
7.In the event that the children are not in the mother’s care they shall spend time with her from 4pm on the Saturday prior to Mother’s Day until 4pm on Mother’s Day.
8.The children speak to the parties by way of telephone or FaceTime at all reasonable times with the parent whose care the children are in to facilitate the call upon the children’s request.
Miscellaneous Orders
9.The parties each:
(a)keep the other advised at all times of their respective residential addresses, telephone contact number (s) and email addresses;
(b)advise the other immediately in the event that the children or either of the children suffers any serious illness or injury or is taken to hospital for any consultation or treatment and both parties be permitted to attend at the relevant hospital with the child or children during the period of such hospitalisation whether or not the child is admitted as an inpatient;
(c)keep the other advised of the names, addresses and telephone numbers of any treating medical practitioners, counsellors, therapists or other health care professionals for the child/children and both parties be permitted to attend upon and receive information from such medical practitioner at that parent's own cost; and
(d)keep each other advised of any extracurricular activities the children are involved in from time to time.
10.These Orders operate as an authority for any educational facility/school attended by the children, to provide copies of all reports, notices and invitations to all events to which parents are usually invited to attend, including sports days, concerts, social events and parent teacher interviews and the parties both be at liberty to attend all such events.
11.Both parties shall facilitate the children’s attendance, at any schooling functions or extra-curricular activities when such events fall during that parties’ time with the children provided that that party has been consulted and has consented to the child’s ongoing involvement in such extra-curricular activity.
12.The parties, their servants and agents be and are hereby restrained by way of injunction from:
(a)denigrating, abusing, insulting or belittling the other parent or any member of that parent’s family or household in the presence or hearing of the children or on any social media networks or other electronic communications;
(b)discussing these proceedings with the children; or
(c)exposing the children or either of the children to conflict or disagreements between the mother and the father or between any person in their respective households; and shall use their best endeavours to ensure that others do not do so.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Goodwin & Kester has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURT:
INTRODUCTION
Mr Goodwin (“the father”) and Ms Kester (“the mother”) are the parents of X, aged four, who was born in 2017 (“X”) and Y, aged 2, who was born in 2019 (“Y”). The parties started living together in 2015 at the father’s home in the township of Town C, near Town E, in NSW. They separated on or around 22 March 2021 at which time the mother took the children to live in Town B, SA, about 420 kilometres away from C. Since then, and to the enormous credit of both parties, they have managed to maintain a pattern of largely equal care of the children despite the difficulties caused by distance and interstate border restrictions. Both parents accept that the current arrangement cannot continue, particularly after X starts school in February 2023. The mother seeks permission to live in Town B with the children whilst the father seeks orders for the children to return to NSW.
By all accounts, X and Y are delightful children. The family consultant describes them as “wonderful, alert, curious and clearly secure”. She says and I accept that the parents have both provided “consistent, nurturing, warm and responsive care”. Unusually, especially for such young children, they appear to have an equally strong attachment to both parents. These children are fortunate to have such excellent parents who, in spite of their distress at the time of separation, have both gone to considerable effort to support the children’s relationship with the other parent.
Both parents agree that the children should spend equal time with the parents on a week-about basis if the parents are living in the same area. If it were not for the dispute over relocation, the parenting arrangements for these children would have been resolved by agreement.
The property dispute between the parties was resolved by consent on the first day of the trial. I have granted orders in chambers in the terms sought by the parties which reflect a division of the parties’ assets of approximately 75% to the father and 25% to the mother, as a consequence of the father’s greater initial contributions and his limited capacity for future employment compared with that of the mother.
BACKGROUND
The parties agree that the mother was the primary carer of both children during the relationship. At the time of separation, X was three and Y was 18 months old. The parties began an equal shared care arrangement almost immediately. They attended mediation in June 2021 and agreed at that time that the children should move between the parents’ homes every fortnight rather than every week.
LATE FILING OF DOCUMENTS
The orders made by Judge Carter (as her Honour then was) on 30 March 2022 relevantly provided that:
3.No later than 14 days prior to the trial date [being by no later than 25 April 2022], the Respondent file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b) an updated single consolidated trial affidavit;
(c) other witness affidavits upon which they intend to rely; and
(d) in property proceedings, an updated Financial Statement.
4.No later than 7 days prior to the trial date, each of the parties be at liberty to electronically file and serve any affidavit in reply.
Following an unsuccessful family dispute resolution conference, the parties’ solicitors agreed that the deadline for the filing for each party’s trial affidavit be extended to 28 April 2022.
The father filed his trial affidavit and financial statement on 28 April 2022.
The mother filed her trial affidavit, amended response, financial statement and supporting affidavits on 2 May 2022, being seven days late.
On 4 May 2022, the mother filed an application in a proceeding seeking that leave be granted for the late filing of her trial material, and a supporting affidavit sworn by her solicitor, Ms P. In that affidavit, Ms P deposed that the delay in filing was largely attributed to her compromised capacity after isolating with COVID-19 and the mother’s issues in obtaining further funds to place in trust. Ms P deposed that the mother’s trial affidavit, amended response and financial statement were filed and served on the father’s solicitor on 2 May 2022.
At the commencement of the hearing, Counsel for the father objected to leave being granted to the late filing of the material, largely on the basis that the father did not have an opportunity to file any affidavit in reply.
In circumstances where neither party was able to file any affidavit in reply, I granted leave for the late filing of the mother’s trial material, and further, I granted leave for each Counsel to lead evidence in chief from their respective clients, limited to addressing any issues in reply to the other party’s trial affidavit.
DOCUMENTS RELIED UPON
The applicant father relied upon the following documents:
(a)his amended initiating application filed on 6 October 2021;
(b)his notice of child abuse, family violence or risk filed on 8 July 2021;
(c)his affidavit filed on 28 April 2022; and
(d)the family report prepared by Ms F dated 10 February 2022.
The respondent mother relied upon the following documents:
(a)her amended response filed on 2 May 2022;
(b)her notice of child abuse, family violence or risk filed on 29 April 2021;
(c)the psychological report prepared by Mr G dated 7 January 2022, annexure “2” to the affidavit sworn by Ms P on 3 February 2022;
(d)the psychological report prepared by Mr G 26 April 2022, annexure “2” to the affidavit sworn by Ms P on 2 May 2022;
(e)her affidavit sworn on 2 May 2022; and
(f)the family report prepared by Ms F dated 10 February 2022.
THE PARTIES’ POSITIONS
The father proposes that if the mother is living in the Region H district (an area in NSW which includes both City J and Town C) the children should spend equal time with both parents in alternating blocks of three and four nights, and that school holidays and special days should be equally divided between the parents’ homes. If the mother does not return to the Region H district, he seeks orders for the children to live with him and spend alternate weekends with the mother, including one weekend each month in South Australia.
The mother's proposals mirror those of the father. If given permission to relocate the children, and if the father moves to South Australia, she proposes that the children spend equal time with each parent on a week-about basis. If she and the children are living in Town B and the father remains in Region H, she proposes that the children spend alternate weekends with the father as well as half of the school holidays and special days.
If not permitted by the court to relocate the children to Town B at this time, the mother seeks orders permitting her to relocate when Y starts school, and providing for the children to spend equal time on a week about basis until then. The mother made it very clear that this was her fall-back position rather than a positive proposal.
At the end of the hearing, I asked both Counsel to particularise the orders which their clients would seek if the court ordered the return of the children to Region H. The mother proposes and the father agrees that any return order should require the mother to relocate the children when in her care to a location no more than 80 kilometres by road from C, an area which her Counsel said would include both sides of City J as well as Town K. I have ordered that the 80 kilometre radius applies from C Public School to ensure that there is clarity about the relevant distance.
The mother proposes that if the children were required to return, there should be equal time on a week about basis. The father proposes to split each week, so that the children would spend three nights with him in week one and four nights in week two of a two-week cycle. Both parties also seek slightly different orders in terms of the division of the school holidays, the division of time over Easter and Christmas and other miscellaneous orders. Both Counsel accepted in their closing addresses that there had been no evidence, cross-examination, exploration with the family consultant, or even submissions about the respective merits of these competing proposals. The Court has had to do the best that it can with the evidence available in respect of these subsidiary issues.
THE PARTIES’ CURRENT CIRCUMSTANCES
The father
The father lives in a property in Town E which he owns and which was the family home during the relationship. He owns three other properties and receives rental income from two of those properties, in addition to income from trading and resource leasing entitlements, and occasional work in harvesting animals. The father also receives a carer’s allowance in relation to his elderly mother, who, sadly, is terminally ill with cancer. Whilst his mother has her own accommodation, the father lives just a few minutes’ drive away and provides her with frequent and significant support.
The mother
When she first moved to Town B, the mother lived in accommodation owned by the maternal grandmother but she has recently moved into other accommodation. She deposes to the owners allowing her to live there rent free until the conclusion of the property proceedings between her and the father, at which point she will have the first option to purchase the property. She is working as a transport worker in the Town B area and has been able to structure her working hours around the time when the children are not in her care.
When in the mother’s care, the children spend time with a local private day-care provider. In the father’s care, X attends preschool on three days each week and Y was attending a local community play group but has been unable to do so recently because of COVID restrictions.
THE FATHER’S CASE
The father moved to the Town C area with his family at the age of eight. He struggled at school and left at the age of 15 with limited literacy skills. He undertook various kinds of farm work until 2010 when he experienced a significant back injury. From the compensation which he received as a result he was able to purchase two investment properties. He had major surgery in 2015 and his relationship with the mother began whilst he was recovering from that surgery.
The parties began living together in the father’s home near Town E in 2015. The father says that both he and the mother were delighted when the mother became pregnant with X. He says that the mother experienced some mental health difficulties after X’s birth but that it was difficult for him to talk to her about them as he did not want to seem critical. The father says that the mother’s mental health worsened after Y was born and that she presented as “angry, distant and disconnected”. He says that he tried to assist her by encouraging her to socialise, and doing as much as he could to help at home. The father says that at this time he suggested that the family relocate to Town B in the hope this would help with the mother’s mental health. He says that the mother immediately dismissed the plan on the basis that she “[hadn’t] lived there for over 20 years”.
The father says that the mother became increasingly focused on online gaming in the months before separation. He accepted that he confronted the mother on 22 March 2021 because he believed that she had formed a relationship with another man online. He says that the mother showed him her phone on which there were intimate photos which she had exchanged with her online acquaintance and that he then tossed the mother’s phone back to her. He admits calling her “a slut” but says he immediately apologised.
The father accepts that on or around 25 March 2021 he helped the mother pack her car and checked that the car was fit for the journey to Town B. He denies that he agreed to the mother taking the children to Town B on a permanent basis. He says that he wanted to keep things amicable and was content for the mother to spend time with her family.
The father says that the week-about arrangement was intended to be temporary. He says that in about June 2021 the mother told him she was considering living in a variety of locations including Town L, Town M and City N. He says that he made it clear at this point that he would not agree to the children living permanently in South Australia. He then issued proceedings. However, he denies any animosity towards the mother, deposing that he tried to support the children’s relationship with her by, for example, encouraging her to telephone the children each night when they are with him.
The father says that he could not move to Town B because:
(a)his mother is dependent on him for care and support;
(b)he needs to live sufficiently close to his rental properties to carry out routine maintenance;
(c)his firearms licence is limited to NSW so that he could not harvest animals in South Australia; and
(d)his literacy difficulties would make it difficult for him to find employment in an area where he does not know the people.
THE MOTHER’S CASE
The mother grew up on her family’s farm near Town B and went to school there. She moved away to Adelaide at the age of 18 to obtain tertiary qualifications. She has not lived in Town B since then save for a period of about three months at the end of her studies. The mother says that she has always maintained a very strong connection to the Town B area. She says that she would return as frequently as possible to visit her family and catch up with the close circle of friends that she has maintained there.
She says, and the father agrees, that she moved to Town C solely for the sake of her relationship with the father. She alleges that the father discouraged her from visiting Town B as often as she would have liked.
The mother says that she felt depressed and isolated after X was born. The father often worked at night, shooting animals, leaving the mother to care for X alone. The mother says that her sense of isolation increased after Y’s birth. She was unable to return to work as she was breastfeeding Y and then struggled to find childcare. She alleges that it was difficult for her to make local friends as the father did not like her socialising.
The mother agrees that in the period after Y’s birth, the father suggested that the whole family should move to the Town B area. The mother says that she turned down that suggestion because she was worried her family would think that she had failed. She did not explain – and was not asked – why returning to Town B would have constituted a failure for her. She now says that she was not thinking rationally as her mental health was compromised at that time. She does not appear to have sought treatment.
On 22 March 2021 the parents had argued about the friendship which the mother had formed online with another man. There was a row during which the mother says the father threw her phone at her and called her a “slut”. She told the father that she wanted to separate and that she was going to Town B.
On 24 March 2021, the father helped the mother pack her own belongings and those of the children into her car and assisted her by checking her car’s oil, water and brakes. The mother says that she believed that he did so because he agreed to her moving with the children to Town B. The mother says it was agreed that she would bring the children back one week later to spend time with him.
Whilst the children continued to move between households each week, the mother enrolled X in preschool in Town B and settled into accommodation on her family’s property, close to her mother’s home. The mother says that she was surprised when in July 2021 the father issued proceedings seeking the return of the children to Region H. She alleges that he started proceedings because he believed that she was in a relationship with another man, with whom she spent two weeks on holiday in Western Australia in June 2021.
The mother’s Counsel initially suggested that the mother’s case rested on the argument that her mental health would be so compromised by living in the Region H district that her ability to care for the children would be significantly affected. By the end of the hearing, this had changed to an argument that living in Region H would be “suboptimal” for her and therefore, “suboptimal” for the children.
THE FATHER’S ORAL EVIDENCE
In chief, the father was asked about allegations that he had prevented the mother from attending family events in South Australia, which he denied.
He was adamant that in helping the mother get ready for the journey to Town B at the time of separation he did not say or do anything which indicated agreement to the children permanently relocating there. He said, and I accept, that he wanted to make sure that the mother and the children were safe on the journey. He was equally adamant that he had not, as the mother suggests, spread any negative rumours about her in the Town C area.
He accepted that the maternal grandmother and her partner, Mr O, would visit Town C around four to five times each year. In cross-examination he conceded that during the relationship, he and the mother had visited her family roughly three to four times a year. He made a number of other admissions against interest in a frank and straightforward manner.
In cross-examination, it was put to the father that his previous experience in farm work and his transport licence would allow him to work in South Australia. The father said that his ongoing back problems from his 2010 injury would prevent him from doing that kind of work. He said that the income from his investment properties would be significantly reduced if he was living too far away to be able to carry out maintenance himself. Whilst he accepted that he had not applied for a firearms licence in South Australia, or made formal inquiries of land owners in the Town B area about shooting on their land, he said that his understanding was that he would be unlikely to get the required permission.
The father was cross-examined about the support which he gives his mother. It was suggested that because his mother is being supported by his sister during the four-week period which she was spending in hospital in Melbourne at the time of the trial, she was not wholly reliant on the father for her care. The father says that one of his sisters lives in Town D, SA, and the other lives about 80 to 100 kilometres away from his mother so that neither are able to give her the regular support which he can provide. Counsel for the mother asked whether the paternal grandmother had received a prognosis of her life expectancy and the father replied that she had not. Counsel for the mother did not put explicitly to the father that his mother might die soon which would make it easier for him to move away from Town C.
In relation to the post-separation period, the father conceded that the mother collected many of her belongings and those of the children on various occasions of changeover. He denied that he allowed her to so on the basis of an agreement that the children would live permanently in Town B. He said that he wanted to avoid an argument and simply replaced whatever she had taken.
Although not put squarely to the father, a number of questions from Counsel for the mother suggested that the father’s difficulty with reading made it difficult for him to support the children’s education. To his credit, the father did not respond defensively to these questions. He said that his reading was good enough to cope with the story books which he reads to the children at present. He said with some force that if he could not support them with their homework in the future, he would seek help from a friend or employ a tutor and that he would do everything in his power to make sure that his children did not experience the same problems that had affected him.
THE MOTHER’S ORAL EVIDENCE
Under cross examination, the mother conceded that she had lived in a number of different towns in South Australia between 2000 and 2015 in order to pursue her career. She explained that she had lived in Town L, about 70 kilometres from Town B, for about 2 and a half years from 2008 onwards. She said that she has always seen Town B as her home.
She said that she had started seeing her psychologist, Mr G, in about September 2021. She generally attended face-to-face appointments with him in Town B. She accepted that she had not discussed living in City J with Mr G, save that she did not want to live in such a large town. She accepted with some reluctance that the concern she had expressed to Mr G about hostility from local people in Town C would not apply if she lived in City J. On this occasion and a number of others, the mother struggled to make appropriate concessions. For example, she had deposed in her trial affidavit to leaving a job during her probationary period in order to pursue her relationship with the father. She conceded in cross-examination that she had been dismissed from that job. When the father’s Counsel suggested that she had not told the whole truth about this issue in her affidavit, she was reluctant to admit that was the case.
Counsel for the father put to the mother that, if required to return to Region H, her ability to spend time with her family would be similar to the other periods that she had spent living away from Town B before her relationship with the father began. The mother struggled to respond directly to these questions, insisting that only in Town B could she maintain the close and loving relationship which she has with her mother. She was significantly less willing to make admissions against interest than the father.
The mother says that the communication difficulties at the end of the relationship were caused by the father’s inability to cope with conflict. She accepted that she would raise her voice but said that she did so because the father refused to listen and would walk away. She accepted that the father had not explicitly given his consent to her taking the children to Town B but maintained that if he had not wanted her to do so he would have “said something”. I find this evidence to be in conflict with her own evidence – and that of the father – about their communication style, in that he was more likely to avoid an argument than to express a view contrary to that of the mother.
The mother was also cross-examined about her fall-back position, namely that she be given permission to relocate the children to Town B, deferred until 2025. She conceded that she had “not really” made inquiries about employment possibilities in City J. She made it clear that in the event of a deferred relocation, she would want a definite date on which she had permission to relocate the children to Town B. She was worried that otherwise she and the father would end up back in court as she did not believe that the father would ever agree to let the children relocate.
The mother conceded that the paternal grandmother was terminally ill. She accepted that the father could not leave her. She said that she did not know why the paternal grandmother could not relocate with him. The mother has at other times shown empathy and sympathy for the paternal grandmother. To suggest that an elderly woman who is terminally ill should move interstate to an area where she would have no support network save for the father is in my view unrealistic.
The mother was asked a number of questions about the father’s ability to shoot animals in South Australia. She conceded that a number of her family members had land which was suitable for shooting animals. Initially she said that she had not thought to ask her brother or cousins whether they would allow the father to shoot on their land, although she was confident that they would agree. She then said that she had asked her brother if the father could shoot on his land but had not communicated this conversation with the father. She repeated on a number of occasions that she believed that the father would move to Town B and that both she and the children would be better off there. That evidence makes it all the more surprising that she had not done more to obtain permission from her relatives for the father to shoot on their land, or to communicate that permission to the father.
FINANCIAL MATTERS
Both parents were cross-examined about the payment of child support. The father alleges that the mother informed the Child Support Agency that she had 70% care of the children and that as a result he was required to pay her $48 per month. He says that, on review of that assessment, the mother was then required to pay him $15 per month but had failed to make the required payment. The mother said that the father had told her over the telephone to tell the Child Support agency that she had 70% care of the children. She said that she had received only one payment from the father and had made no payments to him. Nothing turns on this issue.
The mother was also cross-examined about benefits which she had claimed from Centrelink during the course of the relationship. Her counsel sought and I granted a certificate pursuant to s.128 of the Evidence Act 1995 on the basis that the evidence which she was required to give might tend to incriminate her in respect of offences under the Criminal Code Act 1995 (Vic) ss.134.2, 136.1 and 135.2. The mother said that she had claimed the relevant benefits at the father’s behest. This issue was raised solely in relation to credit which, for reasons set out below, was not a significant issue in these proceedings. Again, nothing turns on the evidence on this topic.
EVIDENCE OF THE MOTHER’S PSYCHOLOGIST
Mr G prepared two reports dated 7 January 2022 and 26 April 2022. He is a registered psychologist and clinical psychology registrar.
In his first report, he says that he had met the mother on three occasions. He diagnosed the mother with Adjustment Disorder with depressed mood.
His second report is an expanded and updated version of the first report. He had by then met with the mother on six occasions. He confirms the diagnosis set out in his first report. His view is that the mother’s mental health would be significantly negatively impacted if she was required to return to Region H where she has no friends or family to support her.
He describes the psychological screens which he had administered including the Personality Assessment Inventory. Based on these screening processes, his view is that there is no reason to doubt the validity of the levels of distress which the mother had reported to him. He relies on the screening process to support his view that the mother is “normally a person who reports little distress across many situations and does not appear to have an underlying anxiety disorder.”
His report concludes:
While Ms Kester has good coping skills, the present situation has proven overwhelming for her, requiring her to seek additional support from family, community, and her psychologist. The best place for Ms Kester to be living at this time is in Town B where she can readily access family, community and psychological support. Removal from these supports is likely to be detrimental to her mental health, and have a negative impact on her ability to provide the optimum conditions for her and her children to thrive.
In cross-examination, Mr G confirmed that his first session with the mother took place on 26 November 2021. He conceded that he had not read the affidavits of either party. He had not met the father or the children. His understanding of the facts was based entirely on the mother’s account to him. The mother had not spoken to him about what she describes in her affidavit as her “very compromised” mental health after Y was born. He had not taken a detailed history nor discussed when her difficulties had started but had instead focused on her current situation.
He was cross-examined about the basis for the comment in his second report that if the mother returned to Town C and received a negative reception from local people her mental health would be negatively affected. He confirmed that the mother had not made any specific allegations about hostile behaviour by the residents of Town C. He said that his comments were based on the mother’s impression that she had not received much support from the community there.
He was asked about his reference to the mother’s depression being present “when separated from her children”. He confirmed that the mother had reported her depressive symptoms increasing when she is separated from the children and improving when they are in her care. He was not aware that she was proposing equal care of the children if the parents were living in the same location.
Counsel for the father asked Mr G if the mother had told him that she would be unable to access psychological support if she moved to Region H. Mr G said that he had drawn that conclusion based on the mother’s description of Town C, and his own experience of working as a psychologist in rural areas. He accepted that if the mother lived in Region H he would be able to see her via virtual appointments and that she would otherwise be able to find psychological support in City J.
He specifically confirmed that if the mother returned to Region H his opinion was that she would be able to perform her parenting duties.
MOTHER’S RE ANDREWS ARGUMENT
When opening the mother’s case, her Counsel indicated that her primary argument was based on Re Andrews (1996) 132 FLR 118; (1996) 20 Fam LR 538; (1996) FLC 92-692, namely that if refused permission to relocate the children to Town B her mental health would suffer to the point where her capacity to look after the children would be compromised.
In the light of the evidence of Mr G, Counsel for the mother accepted that she could no longer argue that the mother would be unable to adequately care for the children if the court ordered their return to Region H and the mother followed them there. She also accepted that the mother would have access to appropriate psychological support in locations other than Town B. Instead, she argued that the mother’s situation and therefore that of the children would be sub-optimal and their situation untested.
FATHER’S AGREEMENT TO RELOCATION
The mother’s Counsel opened her case with the contention that the father had either explicitly or implicitly agreed to allow the mother to relocate the children to Town B in March 2021.It was suggested that he withdrew his agreement only after learning of the mother’s holiday with her online acquaintance in Western Australia in 2021.
For the reasons set out in this judgment, I do not accept that the father indicated to the mother, whether by act or omission, that he agreed to her relocating the children to Town B in March 2021.
THE FAMILY CONSULTANT
In the family report prepared by Ms F and dated 10 February 2022, Ms F relevantly noted that:
(a)despite being unable to identify solutions to bring the court proceedings to an end, both parents were observed to express a genuine effort to contain tensions, avoid conflict and “rebuild a cooperative parental alliance”;
(b)both parents are failing to understand the benefit for X and Y to maintain and strength their bond with both parents post separation;
(c)ensuring that both X and Y continue to have a secure base in both parents caregiving must be a priority in their critical formative years;
(d)both parents were observed to be “highly nurturing, affectionate and warm”, with X and Y displaying confidence in the care of both of them;
(e)it is unclear why the mother has departed from the week-about arrangement, “other than her wish to seek personal happiness”, with the mother failing to recognise that children spending less regular and meaningful time with the father will hamper the children’s ability to “sustain and secure a sense of intimacy and closeness that is evidence in observations”;
(f)should the mother reside near the matrimonial home, she supports the father’s proposal for equal time;
(g)should the mother remain in South Australia, she would not support any shared care arrangement;
(h)periods of separation between the children and their mother “would be concerning given this attachment figure is at risk of being disrupted … during these critical formative years”;
(i)the parents both expressed a level of disappointment that they have been unable to avoid litigation and that their uncooperative and strained relationship continues to be “debilitating and painful for them”;
(j)it was her view that the numerous disagreements between the parents are more reflective of a “history of struggles between two people who have a history of limited problem solving skills”, further noting that the parents have a “limited capacity to identify and offer any solutions”;
(k)both parents expressed that they are hopeful that they can develop a cooperative parenting relationship for their children;
(l)the parties will need to “differentiate spousal and parental issues” and show “flexibility, and openness to help see the world through their children’s eyes, by not carrying with them injury of their past destructive relationship”; and
(m)at the conclusion of the interviews, the mother reported, “if we built our relationship back, we could co-parent and I can live in the same area”.
Ms F emphasised the unusual nature of this case, namely that these young children have an equally close attachment to both parents. She made it clear that she did not wish the children’s attachment to either parent to be disrupted. She emphasised the importance of the need “to get the next few years right”. She described the genuine empathy shown by each parent towards the situation of the other, for example the mother’s struggles after Y’s birth and the illness of the paternal grandmother
Counsel for the mother cross-examined Ms F about her decision to interview the parents together. It was suggested that even if the mother had been given the opportunity to speak separately to Ms F, the power imbalance between them may have discouraged the mother from asking to speak separately to Ms F. On the contrary, Ms F said in cross-examination that the mother was the more assertive party in the interviews and, after engaging in “general chit chat” with the mother while she waited for a taxi after the father had left her office, there was no indication that the mother could not say what she wanted to say in the interviews. There was no evidence before the court as to what the mother might have wished to say to Ms F in the absence of the father.
Ms F said that the mother had spoken about the possibility of moving to Town E for a maximum of three to four years and that both parents agreed they would be able to co-parent if living in the same area. She said that she had not contacted Mr G after receiving his report, which she received after her interviews with the parents, because there was nothing in his report which she needed to clarify and that such reports are not usually useful unless the writer has spoken to both parents. When it was put to her that she had not attached sufficient weight to the report of Mr G, she said that she had relied on her own view that the mother would be able to access psychological support in City J as well as the fact that the mother had not lived in the Town B area for over 20 years. She accepted that there was the risk of further litigation if the children were returned to Region H and the mother initiated a relocation application at a later date. She agreed that it would not be in the best interests of the children to be exposed to further litigation.
I asked Ms F to comment on the risk to the children’s attachment to either parent if they spent as little as two nights per fortnight with that parent. Ms F referred to the difference for the children between long and short periods of separation and explained that when there are long periods of separation, young children such as these experience both stress and distress and cannot then achieve the developmental goals required to feel secure. She said that it is important not to assume that young children can maintain an attachment during long periods of separation and that children over the age of six are better able to rely on phone and video calls and to cope with longer periods of separation.
I asked Ms F about the risks related to granting the mother permission to relocate on a deferred but specified future date. She said that the risk is of an “underlying sense of temporariness” which might prevent the children from putting down roots and settling in their current location. Her view was that that scenario would not provide the children with the security, predictability and reliability which they require.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 ("the Act") sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on "ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child". The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 and McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92 (“McCall v Clark”).
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children's best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child's parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. I will consider those which are relevant to this case.
The presumption of equal shared parental responsibility
Section 61DA of the Act provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order for equal shared parental responsibility, I am then required by s.65DAA (1) and (2) to consider whether to make orders that the children spend equal time or, if not equal time, then substantial and significant time with each parent.
For a parenting order to involve the children spending substantial and significant time with a parent, s.65DAA (3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance.
In MRR v GR [2010] 240 CLR 461; (2010) 263 ALR 368; (2010 84 ALJR 220; (2010 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. At paragraph 13 of the judgment the High Court said:
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. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph 15:
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 Full Court considered the issues of relocation in light of the 2006 reforms in Taylor & Barker (2007) 214 FLR 433; (2007) 37 Fam LR 461; (2007) FLC 93-345; [2007] FamCA 1246 and said at paragraphs 53 and 83:
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, as least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and KB & TC (2005) FLC 93-224).
However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an” equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parents.
The Full Court has confirmed in Bonnor & Loverdos (2021) FLC 94-026 at [48] that there is no onus on the parent who seeks to move to demonstrate that the proposed relocation is in the best interests of the children.
Whilst the best interests of the child are the paramount consideration they are not the only consideration. As the Full Court said in Franklyn & Franklyn [2019] FamCAFC 256 at [28]:
Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children. Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests.
(citations omitted)
If based on evidence accepted by the court, the unhappiness of a parent who is refused permission to relocate will be relevant because of its impact on the children being cared for by that parent. The state of mind of the relevant parent can be inferred from the evidence before the court, as in Taylor & Barker.
There is however a fundamental difference between finding that a parent may lose access to financial and emotional support if refused permission to relocate, and a finding that that parent’s capacity to care for the children will be compromised. As the Full Court opined in McCall v Clark at [135]:
We accept that the availability of family support including such things as reliable quality child care, financial assistance, and emotional support for a parent and a child, can be very important considerations in any parenting case particularly one involving relocation, and are all matters to be balanced and weighed when considering competing proposals. But those factors, or a lack of them, do not automatically support a finding that a party’s parenting capacity will be compromised particularly when they may be counterbalanced, at least in part, by other benefits, including the sharing of day to day care of a child. Again, we find merit in this ground.
APPLICATION OF LEGAL PRINCIPLES TO THE CIRCUMSTANCES OF THIS CASE
Both Counsel agreed at the start of the hearing that this was not a case where there were allegations of risk. The mother criticises the father for throwing her telephone at her on or around 22 March 2021 but this is not a case where family violence is a concern. Whilst both parents criticised the other in their trial affidavits (the father suggesting that X had experienced injuries as a result of the mother’s failure to supervise, and the mother suggesting that the father’s lack of literacy was compromising X’s development), my view is that they are both focusing on their past complaints about the other party to support their position in these proceedings. Their agreement that equal shared care would be in the children’s best interests, subject to geographical considerations, suggests that neither parent has serious concerns about the other’s care of the children.
I have no concerns about either parents’ capacity to provide for the children’s needs including their emotional and intellectual needs. I accept the father’s evidence that he would seek help from others if his lack of literacy made it difficult for him to support the children’s education. The mother’s proposal for equal time suggests that in spite of the concerns set out in her evidence, she too has confidence in his ability to do so. I have no concern about either parents’ attitude towards the responsibility of parenthood.
The presumption that it is in the children’s best interests for their parents to exercise equal shared parental responsibility applies in this case and both parties seek such an order.
The current care arrangements which have been in place for some time involve the children travelling over 400 kilometres between homes every fortnight. The parties agree that these arrangements cannot continue.
These children are too young to express their views.
I accept the unchallenged evidence of Ms F that the children have an equally strong and close bond with both parents. I also accept her evidence that they are too young to be able to maintain the strength of that bond over the periods of separation that would be inevitable if they were spending only two nights per fortnight with one parent.
Both parents have been involved in making decisions in relation to the children. They have both gone to enormous trouble to share the care of the children since separation in spite of the challenges involved.
The mother does not need to demonstrate a compelling reason to relocate. Her case changed over the course of the trial from an argument that she would be incapable of providing adequate care for the children if refused permission to relocate, to an argument that her position and therefore that of the children would be sub-optimal. Nonetheless, she has a right to freedom of movement which should be restricted only if required by the best interests of the children. By the end of the trial, her case was not based on any suggestion that Town B offered a better environment than Region H, or on the connections which the children had made there since separation, or on any suggestion that the mother could not support herself in Region H. Her case was based squarely on the emotional impact on her if she is not allowed to relocate the children to Town B.
I accept that the mother’s wish to live in Town B is genuine and heartfelt. I accept that she has a loving relationship with her own mother whose support, together with other family and friends in the local area, has been important for the mother in the post-separation period. If she is not able to relocate, she will not be able to see her family and friends nearly as often. I also note that the mother has chosen, for understandable and career-related reasons, to live elsewhere for the majority of her adult life. She turned down the chance to return to Town B when the father suggested it, at a time when she was clearly at low ebb, and for reasons which she did not in my view adequately explain in her affidavit.
I was not assisted by the evidence of Mr G. His perspective was limited. Not only had he not read the trial material, he had not considered the mother’s mental health history including what on her own evidence was a very difficult period after Y’s birth. Having found that her symptoms worsened when the children were not in her care, he was unaware that her primary position was an equal time arrangement in Town B. His view was based on a number of inaccurate assumptions: that the mother would be returning to Town C rather than the wider City J area, that she would be unable to access psychological support, that she would experience hostility from local residents in Town C, and that she had no significant previous mental health history.
I note also that the mother chose to seek psychological help in November 2021. In cross-examination, the mother said that she had started seeing Mr G in September, just after a period of some eight weeks when she had not seen the children because of interstate border restrictions. In my view it is possible that the distress that the mother exhibited in her sessions with Mr G was not related solely to the prospect of returning to Region H but also a response to the eight weeks of separation from the children, the travails of the shared care arrangement and the aftermath of the separation from the father.
I have given detailed consideration to the ability of the father to move to the Town B area. Counsel for the mother criticised the father for the absence of evidence as to the detail of the support that he provides for his own mother and her prognosis. She submitted that other family members could care for his mother if the father was not available. That was a curious submission given that the mother conceded that the father could not leave his mother behind. I have already indicated that I do not consider it reasonable or practicable to expect his mother to move.
The mother also submitted that the impediments to the father being able to earn a living in South Australia were untested. The father’s evidence that his primary source of income is the rental from his investment properties was unchallenged, as was his evidence that he would not make a profit if he was unable to carry out maintenance and repairs himself. I accept his evidence that his literacy problems coupled with his previous injuries would significantly affect his ability to get suitable work in the Town B area. Given the father’s limited reliance on the income from shooting animals, I do not need to consider whether he would be able to continue to do so in the Town B area.
The mother’s Counsel submitted that I should infer that the father can relocate now because he suggested that the family move to Town B after Y was born. In my view, that inference cannot be drawn because the father’s suggestion was made in very different circumstances, before separation, when the family was an intact unit and at a time when the father says he was very worried about the mother’s mental state.
I accept the evidence of the father that it is not practicable for him to move to the Town B area.
I accept the mother’s evidence that she would be happier and better supported in Town B, and that her emotional state will in turn affect the children’s wellbeing. In my view however the evidence before me does not support a finding that the mother’s emotional state will be so gravely affected by being unable to relocate the children that I should elevate that issue over the many other factors which are relevant to their best interests. In particular, the children’s very young age, the strength of their bond with the father, and the risk to that bond if relocation took place are amongst the factors which satisfy me that the mother’s proposal is not in the children’s best interests.
I have also considered the mother’s ‘fall-back’ position which would involve giving her permission to relocate the children at a fixed date, which she proposed should be when Y starts school in February 2025. When cross-examined by the mother’s Counsel about this proposal, Ms F said that the mother had said during interview on 1 December 2021 that she could tolerate a return to Region H for a maximum of three to four years. No principled reason was articulated by the mother for the choice of February 2025 save that it would allow Y to start Grade Prep in SA rather than having to change schools, as X would have to do if the court made that order.
I accept the evidence of Ms F as to the risks of permitting relocation in February 2025. In my view to do so would discourage the mother from making any attempt to settle in Region H and the children would be affected by what Ms F described as “an underlying sense of temporariness”.
Counsel for the mother argues that an order permitting relocation in February 2025 would reduce the risk of future litigation, which will otherwise be likely because of the parties’ historical inability to reach agreement about relocation. I accept that further litigation would not be desirable from the children’s point of view but this consideration is outweighed by the Court’s inability to predict with any reliability what the children’s best interests would require as at February 2025. Much will depend on the connections that the children will develop in Region H in the intervening period, the ability of the father to relocate at that time, and the extent to which the mother is able to develop a support network there. There is too much uncertainty about the children’s circumstances in February 2025 for me to be able to conclude that the mother should have permission to relocate at that time.
This is a finely balanced case. Both parents are genuine in their evidence and their views as to what outcome would be best for their children. There is no single decisive factor in the balancing exercise which I must undertake. Having undertaken that exercise I find that it is not in the best interests of the children to relocate to Town B. I will dismiss the mother’s application to relocate the children to Town B. If the mother decides that she wishes to relocate to Town B without the children then it would be in the best interests of the children to live with the father and spend alternate weekends and half of the school holidays with the mother.
If the mother returns to live within 80 kilometres of Town C by road, I will order that the children spend equal time with each parent. In the absence of evidence or submissions as to the optimal configuration of that time, I make orders for the children to spend alternate weeks with each parent which will in my view increase the mother’s ability to spend time in Town B when the children are not in her care.
I have not granted orders in relation to the location for changeover as neither party made submissions in that regard, and I have confidence in the parties’ ability to reach agreement about a sensible arrangement for changeovers. I have made orders for the children to spend the Christmas period with each parent in alternate years, as sought by both parents, but on dates which represent a mid-point between their respective positions. I have otherwise made ancillary orders that reflect agreement between the parties.
I make orders as are set out.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burt. Associate:
Dated: 8 June 2022
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