H and H
[2001] FMCAfam 188
•5 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2001] FMCA fam 188 |
| CHILDREN – Residence – Relocation – Contact – Family Law Act 1975 (Cth) ss 60B, 65E, 68F |
| Applicant: | J A H |
| Respondent: | K B H |
| File No: | ZA2997 of 2001 |
| Delivered on: | 5 October 2001 |
| Delivered at: | Adelaide |
| Hearing Date: | 2 August 2001 |
| Judgment of: | Mead FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Ross |
| Solicitors for the Applicant: | Nicholls Gervasi |
| Counsel for the Respondent: | Ms Woodhead |
| Solicitors for the Respondent: | Christopher Ganzis & Co |
ORDERS
That the Form 3 Application of the wife filed herein on the 8 May 2001 do stand dismissed.
That pending the husband's returning to reside in or about the Adelaide metropolitan area paragraph 1 (a) of the order made in the Family Court of Australia on 1 December 1998 be suspended and in lieu thereof the husband have contact with the children J D H born
21 June 1991, M J H born 26 November 1992 and A L H born
22 September 1994 during school term time on every fourth weekend commencing on the 2 November 2001 from the Friday evening to the Sunday afternoon with the specific times to be agreed between the parties.That after the husband's return to Adelaide his contact with the said children to resume in accordance with the order made in the Family Court of Australia on 1 December 1998.
That all applications do otherwise stand dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ZA 2997 of 2001
| J A H |
Applicant
And
| K B H |
Respondent
REASONS FOR JUDGMENT
Proceedings
The proceedings before the Court were commenced by the Form
3 Application filed on behalf of the wife on the 8 May 2001. In that application the wife sought the following orders:
a)That paragraph 3 (b) of the order of this Honourable Court dated 24 February 1998 and the order for contact made by this Honourable Court on 1 December 1998 be discharged;
b)That the applicant be permitted to relocate the infant children J D H born on the 21 June 1991, M J H born 26 November 1992 and A L H born 22 September 1994 to the town of H B in Queensland;
c)That the applicant do give and the respondent do have contact to the said children as follows:
i)For at least 6 weeks in each calendar year at B in the State of South Australia at times to be agreed or in default of agreement as ordered by this Honourable Court;
ii)Such further contact in H B as may be agreed between the parties;
iii)The costs of travel for the purposes of contact at B to be shared between the parties by agreement or in default of agreement as ordered by this Honourable Court;
iv)Such further or other orders as this Honourable Court deems fit.
The Form 3A Response filed by the husband sought the following orders:
a)
That the wife be restrained and an injunction be granted restraining the wife from removing the children J D H born on
21 June 1991, M J H born on 26 November 1992 and A L H born on 22 September 1994 from the Adelaide metropolitan area;
b)That the wife's Form 3 Application filed herein on 8 May 2001 be and the same is hereby dismissed;
c)That pending the husband's return to Adelaide in late 2001 the wife do give and the husband do take contact to the above said children:
i)For one half of each school holiday period at times to be agreed between the parties and failing agreement as may be determined by this Honourable Court;
ii)Every four weeks upon the husband providing to the wife one week's notice of his intention to take such contact and that such contact be provided over a weekend period at times to be agreed between the parties and failing agreement as may be ordered by this Honourable Court.
d)Such further and other orders as this Honourable Court deems just and expedient.
The applicant wife relied on her affidavit of evidence filed on 4 July 2001, her affidavit in response filed on 19 July 2001, report of A R dated 21 June 2001 and the evidence of E F S, D J S and R F H.
The respondent husband relied on his affidavit of evidence filed on
12 July 2001 and the evidence of P E H and S H.
Background
The respondent husband was born on 13 November 1964 and at the time of the trial was aged 36 years.
The wife was born on 17 April 1967 and at the time of the trial was aged 34 years.
The parties married on the 19 March 1998 and the three children of the marriage J D H, M J H and A L H were aged 10 years, 8 1/2 years and nearly 7 years respectively at the time of trial.
The parties separated on 16 February 1997 and on the 4 February 1998 orders were made interalia providing that the husband and wife have the joint parental responsibility for the long term care, welfare and development of the children, that the children reside with the wife and that each of the parties are restrained interalia from changing the principal place of residence of the children from the metropolitan area of Adelaide SAVE AND EXCEPT with the written consent of each party or an order of the Court.
There were specific contact orders made on that occasion providing for alternate weekend contact, telephone contact, school holiday contact and specific contact orders in relation to Christmas Day, Father's Day, Mother's Day and Easter holidays, and the order provided for a contact handover at the Children's Access Programme at Brompton, or such other venue as agreed between the parties.
There were specific issues orders made in relation to the provision of information by the parties to the other of them regarding the children's health and the wife facilitating the husband being able to obtain school reports and the like.
On 1 December 1998 further orders were made in relation to contact and those contact orders were in place at the time of the trial. The contact orders were as follows:
(1)That the wife do give and the husband do take contact to the children J D H born on 21 June 1991, M J H born on 26 November 1992 and A L H born on 22 September 1994 as follows:
(a)During the school term each alternate weekend from 5.30pm Friday until 6pm Sunday commencing 27 November 1998 provided however that in the event of a long weekend and the Monday being a public holiday such contact is to conclude at 6pm on that Monday;
(b)From 3pm on 24 December until 2pm on Christmas Day being 25 December 1998 and each alternate year thereafter;
(c)For the second half of the Christmas school holidays commencing in the month of December 1998 and each alternate year thereafter.
(d)For the first half of the Christmas school holidays commencing in the month of December 1999 and each alternate year thereafter, providing that the husband return the children to the wife at 3pm on 24 December until 2pm on 25 December;
(e)For the first half of the short school holidays from 5.30pm on the first Friday of such holidays until 6pm on the following Friday in the year 1999 and each alternate year thereafter except for the July school holiday period when contact shall commence immediately upon return from M G on the second Sunday until 6pm the following Sunday;
(f)For the second half of the short school holidays from 5.30pm on the second Friday of such holidays until 6pm on the following Friday in the year 2000 and each alternate year thereafter except for the July school holiday period when contact shall commence immediately upon return from M G on the second Sunday until 6pm the following Sunday;
(g)Each alternate Easter period from 5.30pm Holy Thursday to 6pm Easter Monday commencing in the year 1999;
(h)In the event of Father's Day falling on a non-contact weekend then the husband shall take contact on such weekend in lieu of the following normal contact weekend;
(i)In the event of Mother's Day falling on a contact weekend the husband do not take contact on such weekend and in lieu thereof the husband is to take contact the following weekend.
(j)That the operation of contact on each alternate weekend be suspended during school holiday periods and Easter weekends;
(k)That if either or all of the said children are required to attend a sporting function during a contact weekend then only those children or child not attending shall attend on contact with the husband;
(l)That contact handover at the commencement and conclusion do take place at the S H Garden, C E Street, G G whereby the paternal grandparents will facilitate contact handover;
(m)In the event that either of the paternal grandparents are not able to facilitate contact handover then contact for that weekend be suspended;
(n)Such further and other contact as may be agreed between the parties.
(2)Such contact to be taken by the husband on the condition that he supply all clothing for the children during periods of contact.
(3)That the wife do inform the husband as to the children's sporting events and functions 14 days prior the event occurring so as to give the husband notice as to whether paragraph 1 (k) herein will come into effect.
Subsequent to the consent orders made on 1 December 1998, there were no further proceedings instituted by either party prior to the Form 3 Application of the wife that commenced these proceedings.
Competing proposals
The applicant mother proposes that she be able to relocate with the three children from H in the State of South Australia to the S Caravan Park at S in Queensland.
She proposes that she reside there with her current husband R F H and that they jointly manage the S Caravan Park.
She proposes that they reside at the Caravan Park and that the children attend school at the P State School. There is a high school next door to that primary school which is in the H B area.
The wife's proposal for contact put to the Court by her counsel in the closing address was to the effect that if contact is to take place in Adelaide there could be two visits per year by the children to the husband with the wife paying the costs of the transport between H B to Adelaide and return.
She proposed that if contact was to take place in B the additional costs that would be incurred in the children travelling from Adelaide to B and return should be shared equally between the parties for those two visits each year.
She proposed that she would agree to further contact in Adelaide for the entirety of the other two school holidays in each year if the husband was prepared to bear the total travel costs involved in the children travelling from H B to either Adelaide or B and return.
The father proposed that the children remain resident with the wife in Adelaide in the State of South Australia and that pending his return to reside in Adelaide from the South East of South Australia, he have contact with the three children for one half of each school holiday period as may be agreed between the parties and on every fourth weekend from 5.30pm Friday until 6pm on Sunday or 6pm on Monday in the event of a long weekend, and that upon his return to reside in Adelaide contact be in accordance with the order made by consent on 1 December 1998.
The law
The principles to be applied in a matter of this nature are well settled. Section 60B(1) of the Family Law Act states as follows:
“The object of this part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying the object of the Act expressed in Section 60B (1). It states:
The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)Parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children.”
In Section 65E of the Act, the Court is directed that:
“In deciding whether to make a particular parenting order in relation to a child a Court must regard the best interests of the child as the paramount consideration.”
Section 68F (1) of the Act specifies:
“In determining what is in the child's best interests, the court must consider the matters set out in sub section (2).”
The matters set out in Section 68F(2) are as follows:
“The court must consider:
a)Any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
b)The nature of the relationship of the child with each of the child's parents and with other persons;
c)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person, with whom he or she has been living.
d)The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
e)The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
f)The child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
g)The need to protect the child from physical or psychological harm caused, or that may be caused, by:
i)Being subjected or exposed to abuse, ill-treatment, violence or other behaviour: or
ii)Being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person.
h)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
i)Any family violence involving the child or a member of the child's family;
j)Any family violence order that applies to the child or a member of the child's family;
k)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
l)Any other fact or circumstances that the court thinks is relevant.”
I am of course bound by the clear guidelines formulated by the Full Court in A v A Relocation approach (2000) FLC 93-035 of which I now remind myself :
i)The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration;
ii)A court cannot require the applicant for the child's relocation to demonstrate "compelling reasons" for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances;
iii)It is necessary for a court to evaluate each of the proposals advanced by the parties;
iv)A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be "permitted";
v)The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's bests interests;
vi)It is necessary to follow the legislative directions espoused in s60B and s68F of the Family Law Act (Cth) 1975. The wording of s68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection;
vii)The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case;
viii)It is to be expected that reasons for decision will display three stages of analysis. And:
·A court will identify the relevant competing proposals.
Therefore, as this is an application involving parenting orders where there is a proposal by the mother to relocate the residence of the children, I must apply the principals set out above.
Evidence of the wife
The wife filed an affidavit of evidence and in that she alleged that after the contact orders were made on 24 February 1998 contact was irregular, that the husband was so aggressive towards her that it impacted on the children's wish to attend on contact and that the husband was also abusive and insulting towards her in the presence of the children.
The wife said that there was no contact at all between the father and the children between June and November of 1998 and that thereafter there was reasonably regular contact on the basis of alternate weekends and part of the school holidays.
Towards the end of 1998 the husband had moved from Adelaide to S and the wife alleged that for the twelve months or so that the husband resided in S she and her current husband frequently assisted in relation to transporting the children for contact.
The wife alleged that contact was even more irregular when the husband moved to B in the South East of South Australia in or about January 2000, and further that the relationship between the husband and the children is not a close relationship and that the children do not have a close relationship with the husband's current wife S H.
The wife complained that the husband paid irregular child support and further, that he forced her to agree to forego arrears in the sum of approximately $4,000 that had accumulated up to a time in the year 2000. She said that the husband agreed to pay $75 per week by way of child support plus school fees from that time, but that she had received no child support since March 2001.
The wife gave evidence that she married R H on 9 January 2000, that she, her current husband and the children have formed a close and supportive family unit and that in December of 2000 she and her husband took the children to H B in Queensland for a holiday and to meet Mr H's parents who live at the S Caravan Park in H B.
It was apparently at that time that they became aware of a possibility of a management position at that caravan park and she and Mr H were notified by email on 6 March 2001 that they were being considered for the position.
The wife gave evidence that she spoke to the husband about the possibility of moving on 23 March 2001, that on 12 April 2001 she and Mr H were again asked by the owners of the caravan park if they were still interested in the management position, and on 29 April 2001 received confirmation that the position was available for she and Mr H.
The husband conveyed to the wife his refusal to consent to the children moving with her to H B and in light of the injunction order in force as and from 24 February 1998, the wife had no alternative but to make application to the Court.
The wife said that she worked full time from September 1997 at B M Transport Company where Mr H also worked. The wife's work hours were 9am to 5pm with occasional weekend work, and Mr H apparently worked from 7am to 6.30pm 6 days per week and was on call 24 hours a day 7 days a week.
It was the wife's case that because the job at the H B Caravan Park is a job share position and the residence is on site, she and Mr Harvey would have more time for the children and she would be able to be more involved in their school activities. She gave evidence that the children were very positive about the proposed move but that they were being placed under pressure by the husband and that she was concerned about the pressure to which the children were being subjected as a result of the husband not reaching agreement about the issue of relocation.
The wife conceded that the children would not be able continue close contact with family and friends, particularly her family who see the children almost on a daily basis, but gave evidence that her immediate family were all preparing to visit her in Queensland, that her parents were considering an option to retire at H B and that her twin sister D was keen to visit as soon as possible and also perhaps move to Queensland.
The wife alleged that the husband was not supportive of the children maintaining a relationship with her family and she did not believe that the husband would facilitate that contact if the children were staying with him in Adelaide at any time.
It was the wife's case that the education facilities in and about H B were suitable for the children, that the weather was exceedingly pleasant and that there were numerous sporting and extra curricular activities available for the children. The wife was of the view that the children were of an age to be able to maintain and strengthen their relationship with the husband by having extended periods of contact during school holidays, and said that if the husband paid child support she would be able to afford for the children to have contact in Adelaide on four occasions in each year but otherwise would only be able to afford for them to have contact in Adelaide on two occasions per year.
In cross examination the wife told the Court that when she was employed on a full time basis she was earning approximately $28,500 per year and that Mr H was earning approximately $40,000 per year.
Her evidence was that the salary for the management position in the caravan park would provide them with a joint income of $28,500 per year, which for taxation purposes would be split equally between she and Mr H.
She conceded that when she, Mr H and the children attended at H B for the holiday in December 2000 she did not see inside of the house in which she is proposing that the family will reside, but said that it was on one side of the park and the vans were on the other.
When cross-examined about the position at the caravan park, she said that it was a shared job with someone having to be on-site for 12 hours a day, 6 days per week and that on the seventh day someone else took over the managerial responsibilities. Apparently the one day off per week would be either a Saturday or a Sunday and she felt that she would have significant time to spend with the children.
The wife conceded that there had been no written offer in relation to the position, nothing in writing in relation to any commencement date and that she had not seen any contract in relation to the position.
It was her understanding that the position was available for she and Mr H for as long as they wished, and on 18 June 2001 Mr H actually commenced employment at the S Caravan Park. The wife was unable to produce any documentation in relation to the terms and conditions of employment, nor did she produce any documentation in relation to wages paid to Mr H to the date of trial.
The wife conceded in cross-examination that if she and the children moved to Queensland, the husband would not be able to go to events at the children's school, but she was of the view that it was of little concern as the husband had allegedly only attended at two Christmas concerts.
The wife did not concede that the husband's father was the one to introduce J to soccer, but said that he became involved through her brother. She conceded that both families attend at J's soccer matches and although things had not been on pleasant terms of recent times, the families were civil to each other.
She said that prior to the Court proceedings relations had been warmer and she alleged that when the children are staying with the husband on a contact weekend they have told her that they are not allowed to speak with she and her family and that they must stay with their paternal grandparents at the soccer.
She was not prepared to concede that it was a good thing for the children that J's involvement in soccer brought both families together, particularly at the time of these Court proceedings and it was her view that even after the proceedings conclude, the relationship between the families will never return to its previous state because of hurtful things that have been said.
The wife conceded that she had an extremely close relationship with her twin sister and that they had lived in each other's households for significant periods of time. She conceded that the children had a close relationship with her twin sister and that her sister would visit the family approximately twice per week and that they would visit her on weekends. She and the children have in fact been living with her twin sister since 30 June 2001.
The wife said that her mother had helped care for the children after school and whilst she, the wife, had been working, saw the children almost daily. She said that her mother attends at netball and soccer matches and school concerts and that they see her brother now approximately twice per week.
The wife said that Mr H's parents would be available for babysitting if required in Queensland and conceded that they were between 60 and 70 years of age and that the children had met them over approximately a two week period at Christmas in 2000.
The wife conceded that the job in H B was the first job that Mr H had applied for since leaving his job in the transport industry and said that he wanted to get out of the transport industry. She conceded that if they lived in South Australia they could afford to pay rent, but said that Mr H was not working in South Australia.
The wife was questioned about difficulties the husband experienced recently in obtaining a contact telephone number when she and the children moved to live with her sister. She agreed that when the husband rang her father he did not give the husband her phone number on her instructions because the place at where she was staying had a private and silent number which she did not believe it was her number to give out.
The wife said that prior to Mr H going to live in Queensland they had lived together at H and at Salisbury Heights. When asked about her assertion that the children loved the water she conceded that they had gone to the beach on only two or three occasions whilst living in Adelaide, but said that the beaches were fairly sea-weedy and the children didn't enjoy it very much.
The wife said that she did not know what her plans would be if the injunction was not discharged and that she would have to wait for the outcome of the proceedings to make those decisions.
The wife agreed that all of the furniture and most of the toys had already been despatched to Queensland at a cost of some $1,520.
In Mr H's affidavit he deposed to having a good relationship with the children, the subject of the application, and he deposed to the opportunities for J in relation to soccer if the parties resided in H B.
He said that he and the wife had carefully considered the decision to move to H B and that their work situations in Adelaide made it difficult to spend any significant time with the children.
He gave evidence about having made a detailed analysis of the cost benefits and comparisons with the parties living and working at H B as opposed to their cost of living in Adelaide and deposed to their ability to pay for the children to travel to Adelaide on two occasions per year.
He deposed to the facilities in H B and the fact that the salary of the joint managers would be $28,500 per year with a rent free four bedroom home and all utilities being paid for.
In additional oral evidence in chief, he said that at the stage of the proceedings he was deemed to be the employee at the caravan park, but said that when the wife went to Queensland she would also be employed.
He conceded that there was no length of time specified in the work agreement, which he said was a document that had been signed by himself and a Mr P L who is apparently the manager in Queensland of the XL Corporation.
He said that the work agreement provided for he and the wife to have one day off per week with four weeks annual leave, and that the park had to be manned between the hours of 7.30am and 7.30pm each day. He said that he could handle the position on his own in the future and that he has a close relationship with his parents with his father being aged 72 years and his mother 71 years.
He said that the position in Queensland was a lot less stressful than his previous position and that he had not really considered what plans he and Mrs H would make if she was unsuccessful in her application to the Court in relation to the lifting of the injunction.
He said that issue had not really been considered to its full extent and that they were waiting for the Court's decision.
In cross examination he said that he and Mrs H married on 9 January 2000 and that only he had signed the employment document because the wife was not yet employed.
He said that the job was not the reason that the parties wanted to move to H B but rather, they wanted to move because of a better lifestyle for the wife, for himself and for the children. He conceded the job was an important factor, as they would not be going to H B if the job was not on offer.
He was unable to provide a copy of the work agreement that he had signed but said that it provided for a trial period and the trial period was a period of 3 months from 18 June 2001, during which time his employment could be terminated if it was not satisfactory.
He said he has two children under the age of 18 years, one of whom is working part time and aged 16 years and that he pays child support. His child support has apparently been assessed on his new wages at $17 per week in total. He said that it was up to his children in relation to visiting him in Queensland and that he would love to see them once a year. He reluctantly conceded that it would be reasonable to pay half of their airfare to enable them to see him and said that he would catch up with them whenever he was in Adelaide.
In cross examination Mr H said that he ceased his employment with B M in 2000 and then became State Manager at S Transport where he remained until June 2001 when the company was sold. After 1 1/2 weeks he commenced employment with D Freight Forwarders and was unhappy in that position as it was just as stressful as the previous jobs. He said that when he heard about the position in H B he thought about it carefully and decided to accept the position.
He conceded that he had not applied for any positions in South Australia, although he had considered some possibilities. He conceded that his taxable income had been approximately $43,000, but said that the financial benefits of the new position meant that he paid significantly less child support ($153 per week reduced to $17 per week), that rent expenses disappeared and that the expenses in relation to one of the motor vehicles disappeared. He conceded that he had only seen his parents in H B on approximately two occasions in the last 8 years.
He agreed that some of the workers at the caravan park were people who were carrying out community service orders, but said he did not know the name of the department who sent those people to the park to work. He said that he had the right to refuse to allow such people to work for him.
Mrs E S gave evidence for the wife. She is the maternal grandmother of the children and deposed to her close relationship with the children. She deposed to assisting the mother in the care of the children on a daily basis after the mother commenced full time employment, and in paragraph 4 deposed to an option open to she and her husband to retire to H B.
She deposed to the children discussing the proposed move to H B with her and their delight in the proposed move, and confirmed her observations of the husband's "anger, his foul language and aggression".
When she was cross examined about an incident between the parties in relation to a child booster seat in a car, she said it occurred "before Julie managed to get a restraining order on him":
She told the court that she thought the wife had had a lot to put with over the last few years and when it was put to her that it was a good idea for the wife and the children to move to H B, she responded "oh my oath". She also said in cross examination that she thought it would be the best thing for the wife and the children that had occurred in five years even though she knew that she would miss them.
She referred to the fact that every time the children talk about H B "their little faces light up" and the fact that in Queensland, the wife would be available for the children 24 hours per day.
In relation to the question of contact, she said in cross examination that the husband had not shown himself to be responsible until recently and that contact for the whole of the school holidays would be more beneficial. She also said she thought it would be good to reduce the frequency of the children's contact with the father to "take the pressure off them"
D J S, the wife's sister, gave evidence about her close relationship with the wife and the children and the frequent contact with them. She deposed to the children telling her of derogatory things said by the husband about their mother and the lack of acknowledgment of the wife's family by the husband's family at soccer matches.
She deposed to her observations of the relationship between the wife, her husband and the children and the excitement on the part of the children in being able to have their mother spend more time with them since she has ceased working. She deposed to her wish to have contact with the wife and children in Queensland and the inquiries she had made regarding airfares.
Ms S referred to problems on contact handovers, probably in 1998, and the fact that the children became very quiet when there was conflict between their parents.
She said in cross examination that by next Christmas she would like to be living in close proximity to the wife and children in Queensland, say within half an hour to an hour of their residence, and that when she went to Queensland for a holiday she would have liked to move, but as all of her family were in South Australia she remained in South Australia.
In cross examination Ms S said that she was almost like a second mother to the children and said that the husband's wife S was abusive and although the abuse has not continued, she would not say "things have improved". She said that the paternal grandparents attend at J's soccer matches more often than the husband and that the children tell her about their friends at school and that she always says hello to the husband at J's soccer matches.
That concluded the case for the wife.
The evidence of the husband
In the husband's affidavit of evidence, he deposed to the existing orders as to contact and he said that during the time he lived in S from December 1998 to December 1999 he had contact in accordance with the order other than on one or two occasions.
He then moved to B for employment and said that from that time he would take contact in Adelaide approximately once per month staying with himself and his wife at his parent's home. His employment to the end of April 2001 involved him travelling to Adelaide on occasion and this assisted with him being able to take contact.
He said that from April 2001, he had been able to have contact with the children in Adelaide approximately every 3 weeks and the children had also visited him in B and stayed for approximately 3 weeks on one occasion.
The husband deposed to a desire to return to Adelaide to reside about the end of 2001 and the fact that he would have returned to Adelaide earlier other than the fact that his step children were involved in a serious accident in January 2000 and their specialist doctor was in M G.
He deposed also to having weekly telephone contact with the children and a loving relationship between he and the children and the children and his current wife S.
He deposed to attending at J's soccer matches on each contact visit and the fact that his parents attend at J's soccer matches whether or not he is in Adelaide. He said that the children move freely between both sides of the family at soccer matches and that he and the wife are civil to each other at other at the soccer matches.
He deposed to enjoying family meals with the children and S, common discussions about what has happened in all of their lives in the period since the last contact period, sharing meals with his parents and visiting other relatives and friends in Adelaide. He deposed to shopping with the children, buying them clothes, shoes or magazines and going to other soccer matches with J.
In paragraph 29 of his Order 30 Affidavit he deposed to paying child support pursuant to a Child Support Assessment on his very low income, and the fact that he could not afford to fly the children between Adelaide and Queensland should the mother be successful in her application to relocate to Queensland.
He deposed to not seeking residence of the children but being happy to have the children if the mother wished to go to Queensland in any event, and deposed to J having said that his mother told him that she would be going to Queensland regardless of whether or not she could take the children.
The husband disputed the pattern of contact outlined by the wife in her evidence and said that there were only a few cancellations whilst he resided at S and that there was more contact during the year 2000 than deposed to by the wife.
He denied threatening to the wife that he would become unemployed rather than paying child support, and deposed to the wife not cancelling the arrears of child support until some 11 days after she and the children had returned from their holiday to Queensland rather than, as the wife suggested, the child support arrears having been cancelled at his insistence, and as a condition that he required before he would allow the wife and children to go to children on holidays.
He denied putting pressure on the children in relation to them living with him and alleged that it was the wife putting them under pressure in relation to this application to relocate to Queensland.
The husband agreed that the children are closely bonded with their mother, but stated that he could not confirm the level of their bond with Mr H.
In his evidence he criticised the mother for not having shown him any prospectus of the school in Queensland that the wife proposes the children attend and he denied that the wife and her husband have ever encouraged the children to communicate with him over the past years.
The husband was unable to comment to any significant degree as to the evidence given by E F S in her affidavit, although he did say that when he rings to speak to the children he speaks to all of them equally.
He deposed to the children having a good relationship with his wife S and alleged that the wife and the husband had not considered the move to H B carefully.
He disputed the financial advantages suggested by the wife and Mr H arising from the move to Queensland and the new employment, and alleged that Mr H had vastly underestimated the actual living costs of the family.
The husband denied the allegations of D S in relation to him yelling at the children and being aggressive towards the wife at contact handovers and denied the suggestion that there was any difficulty with the children communicating with both sides of the family at soccer matches.
He deposed to his parents having attended J's soccer matches for the past two seasons and the fact that as the date of the swearing of his affidavit, he had not been given an address or phone number where he could contact the children.
He gave additional oral evidence in chief and said that he does not get telephone calls from the children at all and that they have told him that the wife says that it costs too much for them to make those calls.
He said that since he had sworn his Order 30 Affidavit the children had stayed with him for a week in the July holidays and on the night of 31 July 2001, but that when the wife and children had moved from their previous address when Mr H moved to Queensland, he had no contact with the children at all and did not have the new address until he received the wife's affidavit.
He said he was unable to ring the children and when he rang the wife's parents home and asked for the contact number, he was unable to obtain that number. A couple of days late, when he contacted Mr H in Queensland, he likewise declined to give the husband the contact telephone number.
He further said that he pays child support at the rate of $21.67 per month and that he is up to date with his payments having made a payment in the sum of $92.05 on 30 July 2001, which payment was evidenced by a receipt from the Child Support Agency tendered in evidence.
The husband was cross examined by Ms Ross about his current child support payments and conceded that they were based on an estimate of income, that his current income probably equated to $27,000 per year but that because of him intending to move to Adelaide towards the end of 2001, he would not be earning that income. He said that another estimate of income could be provided to the Child Support Agency when he finds employment in Adelaide and that he had used the current unemployment rate as his estimate of income because he was not guaranteed to have employment when he moved to Adelaide. He says that he has guaranteed work in B and that if he was earning $27,000 per year he understood he would be paying approximately $105 per week by way of child support.
Mr H agreed that he owes some $3,500 to $4,000 by way of child support arrears, he agreed that the money could be well used for the children's benefit and that he had not yet started paying anything off that debt.
He said that he wants to come to Adelaide to be closer to the children and that the delay has occurred because of his step children's serious accident in February 2000.
He said that in May 1999 when he was having financial difficulties and living at S after his injury, he wrote to the wife asking her to share the expenses in relation to the travelling associated with contact and also that he raised with her at the same time the possibility of moving interstate, but he in fact moved to B.
He agreed that employment possibilities now are probably not much better than at any other time and agreed that by the time he went to live in B he was not having fortnightly contact with the children and that he made the decision to move to B for financial reasons.
He conceded that the wife agreed to share the travel necessary for contact between S and Adelaide and that her actions in that regard assisted him in seeing the children. The husband conceded that the wife had facilitated contact and that on occasions she had also agreed to his parents having some contact.
He said that since he has lived in B he has tried to get to Adelaide approximately every 3 weeks during 2001 to see the children and that if he remained in B, contact on a three weekly basis and for half of the school holidays would be a logical position.
He said that his current wife's two children live with their father but that his wife's daughter T will probably come back to live with them.
He said in cross-examination that he is looking for private rental accommodation or housing trust rental accommodation in Adelaide and that he could only rent what he could afford.
In cross examination, he agreed that he had had contact with the children for approximately 35 hours during the year 2000 and agreed that contact sometimes did not take place on an overnight basis. He agreed with the contact that the wife said took place during the year 2001, but said that it also took place on the additional occasions specified in paragraph 31.9 of his Order 30 Affidavit. He agreed that the frequency of contact had increased during 2001 and said that he has had to come to Adelaide more often in relation to the preparation of his case and that he tried to take additional contact.
He said that he would not be able to share in any driving associated with the transport of the children if they were residing in Queensland as his motor vehicle is 20 years old and that he was not financially able to share in any air fares.
In response to a suggestion that he could be accommodated at the caravan park, he said that was not realistic as he had no caravan or tent and that he had not had a holiday in years.
He said that when he had the children for contact in the school holidays he was working and that when the children were with him for approximately 3 weeks in early 2001, he was working and his wife S would care for the children while he was at work other than when they were at school.
He described his children as lovable and friendly in cross examination, and agreed with Mr R's comment that the children are thriving. He conceded that they had no major academic or other school problems and that the children were well parented, and said in fact that they have the best parents that any children could have and that the children love their parents equally.
He conceded that the children have spent most of their time with their mother even when the parties lived together as he was away driving, and he further said that he did not disagree with the fact that the children's primary attachment was to the wife.
In response to questions regarding Mr R's report, he disputed that the children have a closer relationship with his mother than with his father, and said that he thought that was an equal relationship.
He conceded that when it came to a comparison between the children's relationship with he and his wife S, he was the preferred adult. He conceded in cross examination that the children should reside with the wife but said that it was a case of where they should reside.
He said he did not want the children to move to H B because neither he nor his parents would see the children as often and further, that the wife's family, including her parents, brother and sister, also lived in and around Adelaide and the children would be deprived of that contact. He said that he was unable to comment on whether or not H B was a good environment. He conceded that he could telephone the children if he had a telephone number, but said that he didn't now get calls from the children and that he didn't know why that was but when he asked the children if they wanted to ring him they told him they did. He was sceptical as to whether or not the wife encouraged the children to ring him and said that he would like her to do that. He said at this time he could only receive incoming calls on his telephone and that he had to go to a telephone box to ring the children.
He said he neither had an email nor would know how to use email at an internet café.
He said that if the children were permitted to go to Queensland with the wife he would like to be able to assist financially with additional trips but he did not have the current capacity to do that. Mr Helihy said that he did not believe that he could offer a superior parenting environment and he did not remember saying that to Mr R at any time.
He conceded that he was critical to Mr R of some of the wife's parenting but thought that happens even if parents live together and denied Mr R's suggestion on page 9 of his report that there was an element of a "rescue operation" in relation to the current court action. He said that he did not believe that the wife was a bad mother but there were some points "we beg to differ on".
He conceded that he had suggested to Mr R that the wife was "brain washing" the children. The husband denied criticising the wife to the children or saying to them that the wife "doesn't deserve to have three children". He said that the children "are children – I haven't put things in that they say about the wife and R". It was the view of the husband in cross examination that the children probably say things that they perceive each of their parents want to hear and that he has not said to the children or anyone else that "the wife needs a bullet". He also denied referring to the wife needing to get "off her fat arse", said that he did not know where the comments came from or whether or not the children in fact made the comments attributed to him and that children could be creative as to what they say by way of picking up on something that someone says and then turning it into something else.
The husband denied that the children could not see the wife and her family at soccer matches and said that on contact visits he tells the children before the soccer matches that they are with him and that if they want tuck shop money that they should see him about it, and otherwise he puts no requirement or restriction on the children's ability to mix with both families. He said he didn't know whether the families were now standing further apart at soccer matches but that he always had a policy of standing approximately half way down the pitch. He conceded there was not much communication since the proceedings had commenced.
He saw no need for the children to go to Queensland with the wife and that he thought the wife was trying to take the children away from him. He said he thought the situation between the families could improve with "a bit of work on both sides" and that at the moment the wife does not like him very much because he is stopping her from going to Queensland with the children, and for his part he doesn't understand why she wants to go to Queensland.
He conceded in cross examination that he had moved residence since the parties separated but that there were good reasons for those moves associated with employment and that as far as he was concerned he had heard no good reasons advanced by the wife for her to move to Queensland with the children.
He also expressed some concern about what he perceived to be the wife's preferential treatment of J in relation to sport priorities and putting them ahead of the girls' sport commitments, and said that when he came to Adelaide he tried to cater for everyone.
His wife S H also gave evidence both in her affidavit and orally. In her affidavit she deposed to a good and loving relationship between the husband and the children, and alleged that the wife and her partner do not encourage the relationship between the husband and the children and deposed to a particular incident on New Year's Eve, although the year was not specified.
She deposed to the children giving the husband a big hug and a kiss at the commencement of each contact period and in her oral evidence said that since the affidavit was sworn on 9 July 2001, her daughter had gone to live with her own father for a couple of months.
She said in response to paragraph 12 of the wife's affidavit sworn on 3 July 2001 that she had never seen a violent incident between the husband and her son B and denied that the children are negative towards her. She conceded that she had used the words "what do I want three children for" and said that she meant by that that she was not a threat to the wife and her relationship with her children.
She said in response to the affidavit of D S that she had been to the soccer on approximately four occasions during the last two seasons and that on occasions she says hello to the wife's family and that she had not told the children to stay close to the husband's father.
In response to paragraph 8 of that affidavit she said that she had not been abusive and that although she voices her opinion, she does not become aggressive. She used as an example the children having head lice repeatedly over some six or seven contact visits and the fact that she said to the wife that something had to happen and that she could not keep treating head lice and have the children coming back on the next contact occasion with yet more head lice.
In response to paragraph 8 of Mr H's affidavit she said that she did not believe that the children had reservations about her, that they were loving towards her and that they kiss her and tell her that they love her as well as sitting on her lap to watch television.
In cross examination she conceded that it was the first time that she had mentioned the head lice to the court and said that the last time there had been a discussion about it was after the wife and the children returned from Queensland when the wife told her she thought the sea water would have killed the lice. She said that the lice did not appear on the children's head during the contact visit but that the children had the lice when they arrived for contact and that she had told the wife about her concerns on a number of occasions. She denied that it was in fact glitter on the children's hair.
She conceded that she and the wife hadn't really had an opportunity to see if they could "get on", that she looked after the children during school holiday contact and she said that she always came to Adelaide with Mr H when he visited the children.
She conceded that Mr R's description of her involvement in the observation session was a fair description, but she did not really agree that there was little emotional involvement between her and the children.
She said that in their home it was not typical for the children to emotionally attach more to the husband and denied that she had been heated in discussions with the wife in the past and said rather, that if she tried to tell the wife something, the wife thought she was "having a go at her".
She said in cross examination that she and Mr H had been looking for accommodation in Adelaide and had applied to rent one house but had been unsuccessful and that she works two hours a day, 5 days per week cleaning at the school for which she receives approximately $135 per week after tax.
She said she had not yet inquired in relation to work in Adelaide and that the delay in coming to Adelaide had occurred because of her children's medical treatment in the South East of South Australia. She said that they were planning to move to Adelaide as soon as possible and that their move does not depend on Mr H obtaining employment and that she may be able to transfer in her employment.
The husband's mother P H filed an affidavit of evidence in which she said that the children had not spoken about Mr H since he had left South Australia for Queensland, although they had previously mentioned him from time to time. She agreed that the children had excellent manners and suggested that those manners had been taught to the children by their father and she and her husband, and said that when all of the families were at the soccer the two families sat about a metre apart and the children went freely between both families.
She deposed to affection that she observed between the children, their father, his wife and his wife's daughter and deposed to the children making cards and papers for their father, his wife and for she and her husband. She deposed to J ringing her husband in relation to the score at soccer when he was too ill to attend and J saying that he wasn't allowed to ring his father as it was too expensive.
She deposed to the children telling her that the wife had told them that daddy didn't love them, and to the children frequently expressing their love verbally to their father. She deposed to never having been asked to baby-sit, although she would have been pleased to do so and that she has a strong and loving relationship with her three grandchildren, the subject of this application.
She deposed to observing the husband sharing his time equally between the children, notwithstanding J pressuring him to do things with him and deposed to the children's close relationship with their paternal grandfather. She deposed to the paternal grandfather accompanying J to soccer matches when his health permitted.
She was critical of clothing provided by the wife for the children during contact visits. She said that the quality and state of the clothing has improved since the preparation of Mr R's report.
In cross examination she said that her husband's health was improving but that he had been sick for a year and that they had sold their house. She said that they were avid supporters of soccer, that it ran in the family, that she is familiar with the rules of soccer and that if J was registered to play soccer in Queensland he could not play in South Australia.
She conceded that she was not suggesting that the mother did not teach the children manners and did not know if the standards in her household were better for the children than the standard in the wife's. She conceded that the children were thriving, quite articulate and sometimes confident, and that in discussions with Mr R she did not suggest that their household standards were better for the children and did not recall anyone else saying that.
She said that whilst the interview with Mr R was being conducted, she was in and out making tea and she could not recall some of the things that were said and could not recall comments being made about better standards being available for the children with the husband. She did not recall anything being said about a "rescue operation" stance and did not know what that meant.
She conceded that she said that the children were "brain washed" by the mother and agreed that it was a harsh comment to make. She said she thought that the wife wanted to take the children away from her son and she and her husband. She conceded that she did not know if that was the wife's motive, but that it could be and the reason she didn't know was that she had not spoken to the wife about that issue. She said the children love and hug both she and her husband but that over the last year her husband had been quite ill and that at the time of the interview he was quite ill as a result of having had chemotherapy.
She said that she had used the term "brain-washed" because the children say to her "Mummy says" this and that and things like "if we go to Queensland we can go in the sea". She said that the children have not been their normal selves of recent time and that when they come into her house they are withdrawn and introverted. She said that they are not shy normally and do plays and parades quite openly, but more recently it has been "like they have to think of what to say". She conceded that the wife had asked after her husband's health and that she had had some discussions with the wife. She said that she had never had a good relationship with the wife but their relationship had been more distant since the proceedings commenced. She said that at the soccer the husband's family always stood in the middle of the pitch with the wife and her family sometimes a couple of meters away, but now on occasions they are at the opposite side of the pitch. She said the children have always run easily between the two families and there has been no change in that regard.
She said that in her opinion the wife could be spiteful at times and that an example of that was her attempting to go to Queensland with the children. She stated that if the wife says that the children are told not to speak with the wife at soccer she is lying. She said that if the children went to Queensland they would miss their father and they need both parents and grandparents and that not all children have grandparents as available as the grandparents in this situation.
She said she would not be able to afford many visits to Queensland and that she would have to drive and her husband is not well. She said that she is retired and her husband contemplating retirement and even if it cost $230 to fly to Queensland and back it would still be expensive for them. She also said that their other grandchildren resided in the United States and if the children moved to Queensland there would be a hole in hers and her husband's lives as they adore the children.
Evidence of Mr R
Mr R, a consultant psychologist in family law matters prepared a report as ordered by this Court on 6 June 2001. The report was based on information obtained from a home visit to the wife's residence on 11 June 2001 and individual interviews with the wife and J and a joint interview with M and A. Mr R also observed the wife and children interacting during a play activity. On 17 June 2001, Mr R visited the home of the paternal grandparents and there was a joint interview with the husband, his wife S and his parents and a joint interview with all three children. Mr R also observed the children with the relevant adults. Mr R also perused the material on the Court file. His report was annexed to an affidavit of the wife's solicitor Ms Nicholls.
On page 5 of his report he said that during his 30 minute formal observation of the children with the wife and a 3 hour visit at her home "all three children displayed behaviour and attitudes suggesting well established bonding with the mother". He went on to say "the three children were consistently well mannered, comfortable and co-operative with their mother and amongst themselves. There were no tantrums or disruptive competition for resources, activities or mother's attention". Such an observation was of course consistent with the evidence of both of the parties.
J is 10 years old and his positions in relation to going to Queensland or staying in South Australia were set out on page 6 of the report. He was clearly not keen on living with his father in B and didn't seem to be aware that it was the intention of his father to move to Adelaide in the near future. J said "at the moment I feel like they are pulling me by my arms … I am more used to living with Mum and H B is a very nice place, I went there on a holiday … I won't upset Dad if I want to live with Mum … I would rather live with my sisters, look after them and have their company … I love Mum and Dad equally … why is it such a big deal that they have to go to Court? … right now I need my Mum a little bit more than my Dad".
The interview with M and A was reported on pages 7 and 8 of the report. They were both clear that they wanted to live with their mother, that it was nice in Queensland and that they would miss both of their parents equally whoever they lived with. They were clear they would miss J if he stayed with his father and they seemed pleased that "over there" which seemed to refer to Queensland, their mother would be able to be at home if they were sick, they could have friends come to visit them and their mother could be at home when they need her. They spoke about that not being the case in South Australia where they go to their grandmother's after school and both seemed agreed that they needed both of their parents.
They said that they had always wanted their own bedrooms and that would have them in Queensland and that if they moved they would miss their friends, both of their Nannas and Pops and their Aunty and their Dad. Neither the girls nor J seemed concerned about changing schools.
It was Mr R's evidence that the children seem to concentrate more on the physical than the emotional implications of the proposed move and that they seemed to perceive the move as "an adventure and challenge, rather than stress or crisis".
Mr R said on page 10 of his report that the husband, his wife and his parents together with the children, were observed for an hour at the home of the paternal grandparents. He reported that "once again the three children were perfectly behaved, comfortable and with well established relationships that showed a distinct hierarchy. The father was the most preferred adult for all three children, especially J who hardly ever left his side, looked up to him, constantly engaged him and seemed hungry for his attention. There was close physical contact and a mutual attraction between father and son. The two girls tended to keep closely together but on the opposite side of the kitchen counter, constantly chatting and giggling with their father but less physically close".
He observed that the children had a good relationship with the husband's wife and with their grandparents and that they were appropriate relationships. Mr R interviewed the children again in relation to the issue of moving to Queensland and the reports of those interviews are set out on page 11 of the report.
By this time apparently all three children were aware of the husband's plans to move back to Adelaide. J said the following to Mr R on that occasion "I want to stay here, wish I was 20 years old, decide for myself … I would like to stay here but I would like to have brothers and sisters the same age … I want to have my own room … I would miss my soccer, I want to stay here and play soccer … the only reason I want to stay is not for Dad but for soccer, this area and school … I would like Mum to stay here, live with Dad and see her every fortnight". M and A were interviewed separately on this occasion and M said "might stay if Dad gets a house here, not B … we want to know who will look after us after school … want to stick together with J … I want to play soccer … can't decide if I want to go, difficult, I want to see Mum and Dad equally". A reported "if we live with Dad he won't let us see Nanny or Aunty D … I really like Queensland … always wanted my own room … doesn't really matter to me, flip a coin, don't go to Court … live with Mum and visit Dad or live with them the same … but I want to go to Queensland, it is really nice there … told my friends I am going, they told me to send email and postcards … really, really want to go to Queensland".
Mr R set out his evaluation on pages 12 and 13 of the report and was clear in that and his recommendations that the children should not be separated if their best interests are to be served. It was his evaluation that the children's main emotional attachment is with the wife and as I said previously that is not in dispute. He did however report that J seemed to be increasingly looking for "greater one to one involvement with his father".
It was his view that the three children remained indecisive about the residence choices between Adelaide and H B and that of course, in relation to H B, all they had were brief holiday impressions gained from the visit in December 2000. The children seemed to see positives both in moving to Queensland and remaining in Adelaide and Mr R suggested that taking into account the history of contact since separation, it could be argued that at their present age the children may cope with and enjoy less frequent but longer periods of contact if they could be reliably organised and carried out.
In his recommendations, Mr R said that whatever the decision the wife should retain residence of the children and that they should have regular contact with the husband.
Section 68 f(2) factors
a) Any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court things are relevant to the weight it should give to the child's wishes.
I find that the most reliable evidence regarding the wishes of the children in this matter to be that contained in the report of Mr A R.
Whilst some evidence was given by the parties and their witnesses as to the wishes of the children, I find, particularly in light of the variation of the wishes of the children as expressed to Mr R on the two occasions that he met with them, that there is merit in the view expressed by the husband during cross examination, namely that the children on occasions probably say things that they feel each of their parents want to hear.
I find that there is little doubt that all three children are aware of their mother's wish to move to H B in Queensland as soon as possible and of course Mr H has already moved to Queensland. The children have only visited H B on one occasion, and I find merit in the evaluation in paragraph 2 on page 12 of Mr R's evaluation to the effect that what the children have is a brief holiday impression of H B.
Mr R spoke with J on two occasions, firstly in his mother's residence and secondly, at the residence of his paternal grandparents. J is
10 year old. The views he expressed to Mr R whilst at his mother's residence, clearly indicated a lack of desire to live with his father in B and a view that his father was trying to talk him into staying in South Australia by suggesting that he (that is his father) would move to Adelaide. It was clear at that stage that he was unaware of his father's firm plans in that regard.
He expressed a view that his parents were "pulling me by my arms" and he expressed an equal love for each of his parents. He did say that he was more used to living with his mother and that H B was a very nice place and he had been there on a holiday.
He expressed a view that he wanted to live with his sisters and have their company and help look after them, that he wouldn't upset his father is he wanted to live with his mother and that "right now I need my Mum a little more than my Dad". He did not express any concerns over changing schools.
When J spoke with Mr R at the home of his paternal grandparents, they had apparently become aware of their father's plans to move back to Adelaide. J at that time indicated that he wanted to stay in Adelaide but that he wished he was 20 years old and able to decide things for himself. He said that he would like to stay in Adelaide, but liked having brothers and sisters the same age and that if he went to Queensland he would miss his soccer and that he wanted to stay in Adelaide and play soccer. He said he didn't want to stay for the sake of his father but rather for his soccer, the area and his school and expressed a view that he would like his mother to stay in Adelaide but that he would like to live with his father and see her every fortnight. He expressed a wish to have his own room.
On the day of that interview namely 17 June 2001, Mr R received a telephone call from the wife who advised that she had been told by the children of J's view leaning towards remaining in Adelaide with the husband. Apparently, when she had expressed her surprise and become silent, J had changed his mind once again. I find, taking all of those matters into account that J's expressed wishes indicate a close love and affection for both of his parents and a sense of confusion as to whether he wants to remain in Adelaide with his father or move to Queensland with his mother.
I find that he has a close relationship with his sisters and is likely to be attempting to please each of his parents at this very difficult time. I do not find that J's wishes are of such significance that I would attach to them any great weight.
When M and A spoke with Mr R at their mother's home, they clearly indicated a wish to remain living with their mother. They did, however, say that they would miss both of their parents equally regardless of where they lived and clearly wanted to remain living in the same household as J. They obviously liked what they had seen of H B and liked the idea of their mother being more available for them. They were also impressed with the idea of having their own bedrooms which apparently they had been told they would have in Queensland. They did say that they would miss their friends, both of their Nannas and Pops and their Aunty as well as their Dad, but were not concerned about changing schools or making new friends.
Mr R spoke to both of the girls together at their mother's home, but at their paternal grandparent's home he had an opportunity to speak with each of the girls individually. M on that occasion indicated that she might stay in South Australia if the husband lived in Adelaide rather than B, and that she wanted to stay together with J. She also expressed a wish to play soccer and wanted to know who would look after the children after school. She then said that she couldn't decide if she wanted to go to Queensland and that she wanted to see her parents equally.
A indicated that she really liked Queensland and that she had always wanted her own room and that it didn't really matter to her where she lived, she just didn't want the matter to go to Court. She then said that she would like to live with her mother and visit her father, or live with them on what appeared to be an equal basis, but expressed a wish that she really, really wanted to go to Queensland. That seemed to be based on her view that it was really nice there and that she had told her friends that she was going. M at that time was aged 8 1/2 years and A not quite 7 years.
I find that M and A also have a close and loving relationship with both parents. I find that the ambivalence of their wishes may also be indicative of a desire to please both of their parents, and I find in respect to those two children that their wishes are not a matter on which it is appropriate to place great weight.
b) The relationship of the child with each of the child's parents and with other persons
I find that all three children have a close and loving relationship with each of their parents. I find, and indeed the evidence was not in dispute on this point, that the mother has filled the role of primary care giver for the children other than for a short period of time when J lived with his father.
The children have close and loving relationships with their maternal grandparents and their maternal aunt and uncle and these are relationships that have been in existence for all of the children's lives. They are perhaps closer than the average extended family relationships in that there has been, with their maternal grandmother, a significant period of time when daily contact has occurred, there has been significant time when their maternal aunt has been part of their household and a significant period of time when they had daily contact with their maternal uncle.
Although the children's contact with their paternal grandparents has not been as frequent, they have clearly formed a close bond with their paternal grandparents and J, in particular, shares a close bond with his paternal grandfather through their mutual love of soccer. Mr R's observations of the children with their paternal grandparents gave further insight into the closeness of that relationship and I take into account in respect of the paternal grandfather that at the time of observed interaction he was exceedingly unwell.
I find the strong ties with each of their parents and with each of their extended families to be a very relevant issue in these proceedings and one on which I place significant weight.
I also find that the children have close and affectionate relationships with each of their parent's new partners, and there was some evidence from Mr R about the children's interaction with S H. Unfortunately, at the time of the preparation of the report Mr H was already in Queensland and although the relationship between he and the children was not the subject of independent observation, there is no evidence to suggest that it is other than satisfactory and a positive relationship from the point of view of the children.
c) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) Either of his or her parents;
ii) Any other child, or other person, with whom he or she has been living.
The mother proposes that the children move to live with her and her husband Mr H in H B in Queensland. Such a move would have a significant effect on all three children in that they would be moving from the State in which they have lived all their lives, they would be changing schools, they would be changing friendships and they would be separated from not only their father, but their extended maternal and paternal families.
I find that the relationship between the children and the husband is a close and loving relationship and that the children perceive that relationship to be important to them as expressed in their discussions with Mr R.
I further find that J, in particular, was observed by Mr R as having a close relationship with his father. On page 10 of Mr R's report under the heading "Observation of Interaction" he said as follows "the father was the most preferred adult for all three children, especially J who hardly left his side, looked up to him, constantly engaged him and seemed hungry for his attention. There was close physical contact and a mutual attraction between father and son". He said further down the same page "J consistently almost ignored his sisters while concentrating on his father, while the two girls sat close, cooperated in activities and seemed inseparable".
I find that if the children were to move to Queensland, which would inevitably mean that they could not have such regular contact with their father as they currently have, that such change would have a significant effect on the circumstances of all three children, and that such effect would not be beneficial for the children. I also find that the closeness of the children's relationship with both their maternal and paternal extended families, with whom they have very regular contact and who in fact cooperate well enough at least to be able to share in a mutual activity, namely soccer with J, is an important relationship for the children and to be separated from those people such that this regular contact ceases is a situation that I find would not be in the best interests of the children.
d) The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
Neither the husband nor the wife are or will in the foreseeable future be in receipt of significant income. The husband has been working for part of the year 2001, but is currently paying very limited child support indeed and there is a possibility that once he moves to the metropolitan area of Adelaide, he may be unemployed for some period of time. If he does obtain employment soon upon arriving in Adelaide, he will of course be required to pay child support assessed on that income and he still owes the wife nearly $4,000 in unpaid child support.
The wife is currently unemployed other than some casual work and it is her proposal that she will be job sharing with her current husband Mr H in H B in Queensland and that their combined income will be $28,500 per year with a house provided and the utilities paid as part of their employment package.
Although she and Mr H have put evidence to the Court suggesting that they could afford to pay the return air fares for the children between Queensland and South Australia on two occasions per year, I am sceptical about that ability and find that there is a real possibility that neither of the parties will be in a financial position to regularly afford airfares between Queensland and South Australia.
I find further, that the husband does not have a motor vehicle of sufficient reliability to make that trip and that even if the wife and her current husband's motor vehicle is suitable, it is still a significant expense.
The husband gave evidence that he is not in a position to contribute in any way to airfares for the children to facilitate contact and on the evidence before me I accept that position.
I find that as a result of the significant distance between Queensland and South Australia and the financial circumstances of the parties, that if the wife and the children move to Queensland there would be significant practical difficulty and expense as regards the children having contact with the husband, such that I find that contact would be limited. I find that circumstance would substantially affect the children's rights to maintain personal relationships and direct contact with both of their parents on a regular basis.
e) The capacity of each parent or of any other person to provide for the needs of the children including emotional and intellectual needs.
I find on the evidence before me that both parents are capable of providing for the needs of the children including their emotional and intellectual needs. I do find that the children on the evidence before me and the girls in particular appear to have a closer emotional tie with the wife and clearly, as I have said previously, she has had the primary responsibility for parenting the children to date. The husband concedes that she has had the primary parental responsibility and concedes that she has carried out that responsibility well.
f) The children's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torrens Strait Islanders) and any other characteristic of the child that the Court thinks are relevant.
J is 10, M is nearly 9 and A is just over 7 years old. The evidence suggests that the children have a maturity commensurate with their age and clearly to date all children have progressed well in the household of the wife to the extent that the parties agreed with Mr R's assessment of children "thriving".
All three children have conveyed a close relationship with each of their parents and an ease in the company of each of their parents. I am mindful of the evidence of Mr R suggesting a very close relationship between J and the husband, but I also note that at some time J lived with the husband for a period of time and then returned to the care of the wife. J is male and aged 10 years, and the closeness of his current relationship with the husband and his observed enthusiasm to engage his father in interaction with him I find may be indicative of it being important to maintain and promote that relationship. By way of the children's background, they have always lived in South Australia and they have close emotional ties with each of their parents and with their extended families on both sides.
h) The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents.
The wife complained in her evidence of what she perceived to be the husband's lack of commitment to contact arrangements in the early years of separation and was sceptical about the amount of contact the husband has had with the children since the commencement of these proceedings. That evidence is disputed by the husband and I find that although contact has become more regular in recent times, the husband has within the limits of his abilities both in terms of distance from Adelaide and financial constraints, been committed to maintaining a close relationship with all three children.
The wife's attitude to the children has been exemplary and is best illustrated by the husband's evidence in cross examination when he said as follows "The children are well parented – they have the best parents any children could have". He concedes that the wife has played the major role in terms of the parenting of the children and he conceded that was the case even whilst the parents resided together.
For such time as the wife has worked she has engaged the assistance of her close knit family to assist in the care of the children and that has been to the benefit of the children and has ensured a feeling of security on the part of the children and a perception of being part of a close and supportive family.
The husband has likewise ensured that the children have maintained a relationship with his parents and both families have committed to involvement in J's soccer playing, such that both families attend regularly at his soccer matches. Athough relations between the families have clearly cooled in recent months, they still manage, to their credit to conduct themselves in a civil manner such that the children have continued to benefit from their attendance.
I find however that the wife's current proposal to move the children to H B in the State of Queensland, indicates a lack of proper consideration as to the best interests of the children and that it is motivated in part at least by her desire to move away from South Australia and to commence a new life with the children that does not involve regular ongoing contact between the children and the husband.
I make that finding taking into account the content of the wife's case generally and in particular, the significant degree of criticism by the wife in regards to the husband's conduct towards her, his attitudes to and conduct towards the children and her overall position which indicated to me a belief that the children's relationship with the husband was not of major significance to the children.
She was in my view reluctant to concede positive benefits to the children in their relationship with the husband and I find that when she recently moved accommodation after Mr H went to live in Queensland, she was deliberately obstructive in terms of providing the husband with information as to her new address and a means of being able to contact the children freely.
It was clear to me that her attitudes were supported at least by her mother who said in cross examination that she though her daughter "had a lot to put up with over the last few years", and when ask whether she thought it was a good idea for her daughter to go to H B with the children, replied "oh, my oath". She went on to say that she thought it would be a good thing for the wife and children to move to Queensland and indeed the best thing that would have happened to the wife and children in the last 5 years.
The wife and her witnesses, in particular her mother, were in my view prepared to pay lip service to the concept of ongoing and regular contact between the children and the husband, but I find that the mother either deliberately or naively has not property calculated the practical difficulties and financial cost of maintaining that contact in the current circumstances of she and the husband.
I did find however that the wife's criticism of the husband in relation to the lack of child support, and in particular the issue of child support arrears, was a reasonable criticism.
The husband's case contrasted with that of the wife in that he was readily able to concede the importance of the role of the wife in the lives of the children, the fact that she had taken the main responsibility for child rearing during their lives and that the children were closely bonded with her. He included the wife in his assessment of the fact that the children had the two best parents they could have and conceded that he was making the wife unhappy by his refusal to allow the children to go to Queensland.
He seemed more positive about both families being able to improve their relationships which prior to these proceedings appeared to have been quite pleasant, whereas the wife was of the view that those relationships were unlikely to be mended in the future.
It was clear from the husband's case that he was supportive of the children continuing to reside with the wife, that he supports that relationship in his dealings with the children, but feels the wife has not properly considered the impact on the children of them moving to Queensland.
I find in this regard that the husband's attitude to the children and responsibilities of parenthood is more balanced and in the interests of the children than that of the wife.
I find that the wife's suggestion that the children's relationship with the husband can be sustained sufficiently by the children having two periods of contact period per year with the husband in South Australia, is not in the best interests of the children and I have already referred to my concerns as to the practicalities and costs of such proposed arrangements.
k) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
Taking into account the close relationship between the children and both of their parents, the significant practical difficulties and expense that would be involved in contact arrangements if the children were to move to Queensland and the possible resulting difficulties regarding ongoing contact, and in particular, the closeness of the relationship between J and the husband as evidenced by the material in the report of Mr R, I am of the view that an order which resulted in the children remaining in South Australia would be an order least likely to lead to the institution of further proceedings.
I do not find that the issues covered in Section 68F (2) (g) (i) and (j) which relate to the need to protect children from physical or psychological harm, family violence or family violence orders are relevant to these proceedings.
Conclusion
Taking all of these matters into account and for the reasons set out herein, I find that it is in the best interests of the children that they remain in South Australia and continue to reside with the wife. Accordingly, I make the following orders:
Orders
(1)That the Form 3 Application of the wife filed herein on the 8 May 2001 do stand dismissed.
(2)That pending the husband's returning to reside in or about the Adelaide metropolitan area paragraph 1 (a) of the order made in the Family Court of Australia on 1 December 1998 be suspended and in lieu thereof the husband have contact with the children J D H born 21 June 1991, M J H born 26 November 1992 and A L H born 22 September 1994 during school term time on every fourth weekend commencing on the 2 November 2001 from the Friday evening to the Sunday afternoon with the specific times to be agreed between the parties.
(3)That after the husband's return to Adelaide his contact with the said children to resume in accordance with the order made in the Family Court of Australia on 1 December 1998.
(4)That all applications do otherwise stand dismissed.
I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Mead FM
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