H and H
[2000] FMCAfam 89
•21 December 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2000] FMCA fam 89 |
| RELOCATION TO NEW ZEALAND – competing share parenting order – Relevant s68F(2) factors – Reimers (unreported Full Court 8.12.00) referred to; A & A Relocation Approach (unreported Full Court 1.8.2000) applied; H v H (1995) FLC 92-599 considered |
| Applicant: | P M H |
| Respondent: | M R H |
| File No: | ZB3334 of 2000 |
| Delivered on: | 21 December 2000 |
| Delivered at: | Brisbane |
| Hearing Date: | 19 December 2000 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Curran |
| Solicitors for the Applicant: | Michelle B, 70/78 Tanderra Way, Karana Downs, Queensland |
| Counsel for the Respondent: | Mr Burridge |
| Solicitors for the Respondent: | Graham Morrison, 53 Brisbane Road, East Ipswich, Queensland |
ORDERS
UPON the undertaking of the WIFE not to remove the children permanently from Australia except for the purpose of holidays
IT IS ORDERED
That the children of the marriage H E H born 6 July 1993, B L H born 5 December 1995 and D L H born 7 April 1998 reside with the WIFE.
That the HUSBAND have contact with the children each alternate weekend from after school or childcare on Friday to before school or child care on Monday.
That either party hereby authorises any school, doctor and/or hospital by its appropriate officer to furnish the other with any information the other may require concerning the children.
That either or both parties sign all necessary documents and do all necessary acts and things to facilitate the furnishing of the information referred to in paragraph (7) hereof, and in the event that either party fails and/or neglects to sign such documents and/or authorities as he or she may be required to sign from time to time then the Registrar or any Deputy Registrar of the Court is empowered to sign all such documentation and/or authorities for and on behalf of the HUSBAND and/or the WIFE within 7 days of one of the parties so defaulting.
That the WIFE and the HUSBAND forthwith notify each other in writing of any change of residential address and/or telephone number in the areas in which the parties are presently residing.
That either party notify the other by telephone within 24 hours of any major matter relating to the health of the children and/or any other matter relating to the welfare of the children.
That either party notify the other party of a telephone contact number during lengthy periods of contact away from the party’s residence.
That the MOTHER forward to the FATHER by pre-paid post copies of all school reports and details of sporting and/or any extracurricular activities and major events relating to the children within 3 days of such reports and details being made available to the resident parent, and forthwith authorise the children’s respective schools in writing to enable the FATHER to discuss the children’s progress at school with their respective teachers from time to time.
That the children remain enrolled at the Mt C State School.
That the parties attend family therapy with one therapist to be agreed upon between the parties and abide by the regime for therapy determined by the therapist.
That the parties share equally the costs of family therapy.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 3334 of 2000
| P M H |
Applicant
And
| M R H |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me an application by the mother, P M H, filed
29 September 2000, seeking orders that she and the three children, H aged 7, B aged 5, and D aged 2, reside with her in New Zealand. By response filed on 15 December 2000, the father, M R H, opposed the order and seeks a shared residence order.
At a first Court date in this Court on 30 October 2000 an order 30A Court expert report was ordered and was prepared by Denise Brittain, the report being filed in the Court on 14 December. The matter proceeded to trial on 19 December. The mother, the father, the mother's doctor, Dr B, the father's sister, Y P, and the maternal grandmother, P F, all who had signed affidavits, and were subject to cross-examination. The Court expert, Denise Brittain, was also subject to cross-examination by both parties. There is a degree of urgency in the decision because of the mother's desire to relocate to New Zealand before the start of the next school year. For these reasons this judgment is delivered ex tempore.
History
Turning to the history, the father is 39 years of age and was born in the United Kingdom. The mother is 37 years of age and was born in New Zealand. The parties having met in England in 1988 shortly thereafter commenced co-habitation. They were married in New Zealand on 14 March 1992 and shortly thereafter moved to Australia. After a short period in Australia they then returned to New Zealand to live in June 1992. Two of the children were born in New Zealand: H on 6 July 1993 and B on 5 December 1995.
In May 1997 the parties moved to Australia with the children. The mother says, and I accept, that she was reluctant to move back to Australia. D was born on 7 April 1998. Early in 1998 the mother was suffering health difficulties and the father resigned his job with Queensland Newspapers and took a primary role of caring for the children. He has not returned to full-time employment since. In approximately January 1999 the mother was diagnosed with Hashimoto's disease which I was told is an underactive thyroid function and has been on medication since.
The parties separated on 28 February 1999 with the father moving from the home. In April I accept the parties reached agreement that:
a)The mother undertook "not to take the children outside of Australia except for the purpose of holidays"; and,
b)That there was an order for residence to the mother with the father having contact each alternate weekend Friday to Sunday and alternate Wednesday evenings. There is also contact by telephone on special occasions.
I accept that the father not only agreed to the arrangement relying on the mother's undertaking, but infer that he is so child focussed that he would not have agreed to the arrangement unless he was satisfied that the arrangement was in the best interests of the children. The agreement reached in April was formally created as a Court order on 21 October 1999 in the Ipswich Magistrates Court. Importantly the evidence is that the arrangement for residence and contact has progressed essentially without difficulty since then.
The catalyst for the current dispute arises from the mother's remarks made of a desire to return to New Zealand to live and her application. It seemed that the father's application for shared residence was not filed until after the report of Denise Brittain was received. The parties attended counselling with the Family Court counselling section on
24 October 2000 but were unable to reach agreement. Unfortunately the parties rarely communicate verbally unless absolutely necessary and I am satisfied that a high level of conflict exists in the current relationship.
The parties competing proposals
The mother has refined her initial application. She now seeks:
a)The right to relocate to New Zealand close to the current residence of her parents with the father to have extended holiday contact four times a year, and with the mother setting aside $20,000 from a property pool for contact travel expenses;
b)In the alternative, if not permitted to move to New Zealand, that the mother remain in Australia, and the contact and residence arrangements in place still apply.
The father proposes that:
a)The mother remains in Australia; and
b)That the parties share residence week about with changeover at 5 pm Sundays and an equal share of school holidays.
The law
As the parties are unable to agree as to how their responsibilities towards their children are to be apportioned, I am asked to consider a number of parenting orders in the form of residence, contact and specific issues orders and the application for the relocation. In deciding whether to make a particular parenting order, I must regard the best interests of the children as the paramount consideration, (see Section 66E of the Act). Accordingly it is the consideration of H, B and D's best interests which forms the cornerstone of this judgment. In determining what is in the children's best interests there are a number of matters which I must consider. These matters are set out in Section 68F of the Act and I will return to them soon.
I performed this task against a backdrop of the objects and principles set out in Section 60B of the Act. As the matter also involves a question of relocation, both parties quite properly presented their cases within the principles enunciated in A & A Relocation approach, (a decision of the Full Court of the Family Court delivered on 1 August 2000). Because this is an ex tempore judgment I do not elect to read into the record the principles set out in that case in full, other than to repeat these basic observations that:
a)I am required to identify and evaluate the competing proposals;
b)I must consider each of the relevant factors under Section 68F(2) having regard to:
i)None of the parties bearing any onus;
ii)Consider the competing proposals for contact; and
iii)Indicate the weight attached to the various factors and remember that no single factor should determine the issue of which proposal was preferred by the Court.
Also the remarks in K and Z 1997 FLC 1992-783 are worth recording. That:
“ In every case concerning the best interests of the child, it is essential that the trial judge remain focussed entirely on the primary directive of the legislation which is what is in the best interests of the child that is the subject of litigation.”
I have come to the conclusion that it is not in the best interests of the children that the mother be entitled to reside with them in New Zealand. The evidence and findings within the relevant Section 68F(2) factors are:
a)The children are currently well settled and happy in Australia. This has been D's home all his life, B's home for most of his life, and H's home since she was approximately 4 years of age. All H's schooling has been in Australia and she is settled. She is well settled at school. Ms Brittain at paragraphs 12.2.1, 12.2.2 and 12.2.3 confirmed their normality. This is given significant weight by me;
b)The children's age and maturity mean that any wishes expressed, of which there is little evidence, not surprisingly in my view, should carry little weight. The counsel for the mother suggests I should find it remarkable that the children are quiet or neutral when they are aware of some of the competing proposals. I don't. Ms Brittain at paragraph 9.1.1(iv) of her report gives an acceptable reason for H's reaction and quietness;
c)I accept that the children have a good relationship with each of the grandparents and other extended family members. I make no assessment of whether they have a better relationship with one or the other. The children are fortunate that so many other family members are concerned with their welfare. A movement to New Zealand would obviously increase the opportunity for contact to the mother's parents and reduce contact to the father's parents and family. Staying in Australia would have the reverse effect. These relationships, although important, are however secondary to the primary relationship the children have with each of their parents. The children are strongly attached to both parents and both parties concede this is the case. Ms Brittain at paragraph 12.2.6 sums it up best by saying:
“The mother's proposal to move to New Zealand with the children presents many difficulties from the children's perspective. First and foremost their relationship with their father are most significant.”
When asked how she thought the children would react to the separation from their father occasioned by the move to New Zealand, the mother acknowledged:
“They would feel it.”
Although she tried to suggest that her proposed contact arrangements would overcome these difficulties, she was not convincing and my assessment was that she wanted to believe that but held concerns about it. These factors have the most significant weight.
d)Whilst the father acknowledged that if the mother was allowed to go to New Zealand he would probably follow, and I accept that eventually he probably would because of his deep commitment to the children, his parenting attitude would be affected by his forced relocation which I agree would cause further difficulties and I refer to Ms Brittain's report at paragraph 12.2.6.
e)The mother was honest in her expression that a significant part of her decision to relocate is that she would be a lot happier. It would remove her from the conflictual situation at present, even if it was only for a short period of time. It would enable her to draw on the family support and improve, she believes, her prospects of re-training, education and employment. When asked how these desires related to the children's best interests she replied:
“If I can find work then the children's future will be more secure.”
I gained the impression from the mother that the isolation she described in paragraph 14 of her affidavit is no longer so pronounced. Part of this probably stems from her improvement in health but also from her involvement in the children's activities and with neighbours as she described. I also note the recent remarks of the Full Court in RIEMERS (unreported 8 December 2000) that a mother's potential happiness with relocation was only one of the issues I am required to properly consider and should not dominate the proceedings.
It is now appropriate to consider the competing proposals with the mother remaining in Australia, namely, shared residence as proposed by the father and the preference of Ms Brittain, and the maintenance of the status quo arrangement proposed by the mother. I regard the most significant factors under Section 68F(2) to be sub-sections (b), (e), (h) and (k). I have noted the protection order made in the Ipswich Magistrates Court on 1 April 1999 but accept the evidence of the father that it was a locational incident in nature and arose in the heat and stress often present at the time of separation. I do not regard the incident as justifiable but I am satisfied that it does not establish of itself any continuing violent characteristic of the father.
(b) The nature of the relationship of the children with each of the child's parents and with other persons.
I am satisfied as already mentioned that the children have an equally strong attachment to each of the parents, the mother and the father. It is not necessary for me to make any assessment of who was the principle care-giver prior to separation. I am satisfied that the children have a healthy and normal relationship with other members of the father's family. Also the father acknowledges H is settled in her current school. This suggests she has a normal relationship with her school peers.
(e) The capacity of each parent or of any other person to provide for the needs of the child including emotional and intellectual needs.
The father said on more than one occasion that he regards the mother as an "unfit mother." I have no doubt from the evidence and the demeanour in the witness-box that he has often shared his opinion with the mother. I am less certain that he stated this view to or in the presence of the children. Ms Brittain doesn't share that view that the mother is an unfit mother. The medical evidence satisfies me that the mother's health issues are controlled by her medication. Importantly, the father had never, it seems, prior to the mother's application to relocate sought by Court order a change to the agreed arrangements. I am satisfied that both the mother and the father have a similar capacity to provide for the needs of the children. I am also satisfied that each parent will adjust either their work commitments or studies/re-training obligations around the children's needs.
(h) The attitude to the child and to the responsibilities of parenthood demonstrated by each of the children's parents.
This is, in my view, the factor to which I attach the most weight in this matter. The positive aspects of the father's attitude and parenting style has been his demonstrated commitment to their needs; by resigning from his work when the mother's health made it difficult for her to cope; the further involvement in the children's activities at school and elsewhere; and his regular commitment to the agreed contact arrangements. He says "he is aware and notices things."
He played an active role, for example, in D's toilet training. He expressed a view that showed an insight into the benefit of a routine for the children. The mother has a different parenting style to the father, not better or worse, just different. There is less focus on particular things but I find that she has a rounded appreciation of the parenting role and the importance of the father's contribution. I don't see the mother's application for relocation as an indication of her lack of appreciation of that role of the father, merely a reflection of the dilemma between competing issues which she felt at the time.
The mother presents as having had difficulty coping with the strong personality traits of the father. This is one reason why she came to Australia, she says reluctantly, and she has clearly regretted that decision. I suspect she blames the father for forcing her to do so. She finds it hard to cope with the father's sister, Y P, avoiding her at school. She has had to cope with stresses post-separation and challenges to her health. The best example of her demonstrated capacity to deal with these personality negatives seem to me to be the secure and happy way in which the children presented to Ms Brittain after nearly two years where the mother has been the principal care-giver.
Some remarks of the father given in his testimony and his demeanour in the witness-box has caused me some concerns. He clearly carries a level of resentment and frustration about the current situation. He says that he is the better parent. These matters are dealt with by Ms Brittain's report at paragraph 12.2.4. In particular she observes that he was:
“ ... having some difficulty controlling his hostility over the situation and had the capacity to make quite inappropriate comments within earshot of the children. These observations were consistent with the claims by Mrs H that he had at times acted aggressively with her and her mother in front of the children.”
Some of his remarks in the witness-box include:
“There is more to being a parent than just biology, more than just giving birth and breast-feeding.”
And:
“She is an unfit mother to the children. I still consider her to be an unfit mother.”
And when feeling confronted by questions in cross-examination he remarked:
“You are not addressing my questions.”
Considering all the evidence, I have no difficulty in accepting that the father has a need to control. I regard this as a significant difficulty for him to overcome when he exercises his parental responsibilities, including the encouragement and appreciation of the mother's continuing role in the life of the children.
(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.
The mother sees the father's application for shared residence as another step in the ultimate stated desire of the father to be the principal resident parent. He shared with Ms Brittain and stated in his evidence that:
“If there was justice the children would be with me.”
Ms Brittain says that she feels if the father achieves an order of equality through shared residence, he will feel less hard done by. It follows from this opinion that if he doesn't achieve a shared residence order, he may continually agitate for change and I infer continue to undermine the mother in her role. I am satisfied that in this regard the failure to complete property settlement after apparently having some form of agreement is another factor which, if left unresolved, will add to the level of perceived unfairness in the father's view. Nonetheless, I feel that the father's strong commitment to the children is such that he has the capacity with professional assistance in a family therapy environment to move on positively from these proceedings.
Conclusion
Ultimately, when weighing up all the major factors previously assessed, I must make a decision which is in the best interests of the children. Ms Brittain at paragraph 12.2.1(iv) says:
“Based on the information available to me, I would favour some sort of shared parenting arrangement in Brisbane. The parents preferably have equal impact in terms of time and decision-making and also having minimal contact with each other.”
I believe the view expressed by Ms Brittain prompted the filing by the father of his application for shared parenting. Under questioning by counsel for the mother, Ms Brittain rejected suggestions that the acknowledged high level of conflict posed a real difficulty to a shared residence arrangement. She did concede when I inquired whether some remarks made by the father in his testimony, coupled with her observation of the father's need to control, and the mother's feelings of insecurity arising from his stated preference for residency, posed a difficulty – she said that it could, but she still felt it wasn't a reason to change her preference.
I have taken a different view on the evidence. I do not believe that the high levels of conflict, and the parenting attitudes are conducive to the level of cooperative parenting necessary for shared residence to operate in the best interests of the children. There is some support for my view in the remarks of the Chief Justice of the Family Court of Australia in H v H (1995) FLC 92-599 at page 81 973, where he repeats his observations made in the case of FORCK and THOMAS (1993) FLC 92-372 at page 79, 869 that:
“Perhaps more subtle and difficult are the matters such as communication skills of the estranged parents, their ability to cooperate, and the compatibility of their parenting styles and values. It has been said in an article in the Australian Family Lawyer volume 6 number 2 by Schepis and Formica at page
13, that If parenting values are not compatible it may result in mounting tension and mistrust to the point where the arrangement becomes detrimental or unworkable. Views with a respect to medical preference, the emphasis on homework, selection of television programs, treats and discipline, need to be reasonably compatible.”Furthermore, although not mentioned by counsel for the mother, preservation of the status quo arrangement in existence since separation would in my view promote stability in the lives of these children. I therefore propose to order that the children reside with the mother, with the father to have contact alternate weekends from other school or childcare, to before school or childcare on the Monday. This will provide the father with one extra night's contact a fortnight.
In the absence of any evidence before me suggesting difficulty with paragraphs 2(ii) to (viii) of the order of 21 October 1999, I will not vary those provisions. There remains some issues to resolve, however:
a)The father alleges the failure by the mother to comply with paragraph 3 of the former order. He also seeks various special issues orders at numbers 7 to 12 of his application. I would so order in accordance with his application at paragraphs 7 to 12;
b)Some issue arose as to the school that H and B would attend next year. On the current evidence I believe the children's best interests require them to remain at the school they currently are. If the mother wishes to argue otherwise I would be prepared to hear an argument tomorrow on that issue. The mother would need to identify the school she proposes rather than merely say "somewhere in South-East Queensland";
c)The parties would, as recommended by Ms Brittain, benefit from some family counselling with an appointed specialist counsellor. I note that the mother was prepared to set aside $20,000 for contact travel expenses from the undistributed property fund. It would be proper in my view, and in the best interests of the children, if: (a) the parties could agree on a suitable family therapist; (b) commit to a program with that therapist; and (c) pay for the therapy from the fund.
There is also the question of the use of a contact-type book for, although not before me, I sense that the failure to resolve the property issues, and the fact that the funds in trust have not been distributed fairly and equitably to date, is another aggravating element in this family. I would be prepared to consider expediting a trial on the property matters if absolutely necessary. It may be that this order in respect of child matters will assist a resolution of the property matters. I note in that regard that there is no application for property settlement apparently before the Court but I'm prepared to expedite it, and it wouldn't seem to me necessarily that if they can't agree with all the mediation they have had to date, that an order 24 conference was going to be helpful.
The mother's undertaking in respect of her not leaving Australia other than for holidays should be maintained. I have no fixed view about whether that should be in the form of an order or continuance of the undertaking, but I'm happy to hear submissions on that.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
0
0
0