Hawthorne and Pallai

[2014] FCCA 25

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAWTHORNE & PALLAI [2014] FCCA 25

Catchwords:
FAMILY LAW – Parenting orders – mother’s application to move the residence of the children from Victoria to Tasmania – best interests of children – children’s wishes – application refused.

Applicant: MS HAWTHORNE

Respondent: MR PALLAI

File Number: MLC 4938 of 2013

Judgment of: Judge Hartnett

Hearing dates: 9 and 10 December 2013

Delivered at: Melbourne

Delivered on: 15 January 2014

REPRESENTATION

Counsel for the Applicant: Mr McVeity

Solicitors for the Applicant: McVeity & Associates

Counsel for the Respondent: Mr Edmunds

Solicitors for the Respondent: Telford Story & Associates

THE COURT ORDERS THAT:

1. Order number 6a)ii) of the Orders made by consent on 16 January 2007 is discharged.

2. All school holiday time spent with between the father and the children of the marriage [X] born [in] 2001 and [Y] born [in] 2002 (‘the children’) as set out in the Orders made 16 January 2007 shall occur with the father to be in substantial attendance save as otherwise agreed in writing between himself and the mother. If the father is unable to be so in attendance then the children shall remain living with the mother.

3. Otherwise the Amended Initiating Application filed by the mother on 5 December 2013 is dismissed.

4. Otherwise the Application of the father contained in the Response filed 1 August 2013 is dismissed.

AND THE COURT NOTES THAT:

A.The Orders of 16 January 2007 as varied shall continue in full force and effect.

IT IS NOTED that publication of this judgment under the pseudonym Hawthorne & Pallai is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4938 of 2013

MS HAWTHORNE

Applicant

And

MR PALLAI

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve the Applicant mother seeking to relocate the residence of the parties’ two children [X] born [in] 2001 (‘[X]’) and [Y] born [in] 2002 (‘[Y]’) (‘the children’), who live primarily with her, from [C] on the Mornington Peninsula in Victoria to Launceston in Tasmania. That move in the residence of the children is opposed by the Respondent father, who lives in [D] having himself moved from the Mornington Peninsula in early 2011 to take up residence in his de facto partner’s home. That move of the father, which (by prior notice) he did not advise the mother of, meant the father was not able to see the children to the extent he had previously, and a reduction in time spent with between the father and children ultimately resulted.  The father also seeks, in response to the orders sought by the mother, that the children continue to live with her, but that they spend time with him during school terms, instead of fortnightly as is current, for two consecutive weekends from Friday after school until Monday before school in each three week cycle. Otherwise, he seeks a continuation of the current orders in essence being equal shared holiday time between the parties with the children and usual orders as to school reports and notifications of medical emergencies and provision of information.

2. Statements of fact in these Reasons are findings of fact on the balance of probabilities.

3. The mother relies upon her Amended Initiating Application filed 5 December 2013. From the Amended Initiating Application and the Response filed by the father on 1 August 2013, it is clear the parties agree on the continuation of earlier parental responsibility orders of the Court made 16 January 2007, being that they each have equal shared parental responsibility of the children [X] and [Y]. [X] is now aged 12 years and seven months. [X] is about to commence his secondary education and hence the mother makes this application now. [Y] is 11 years of age and in the upper years of primary school. The mother proposes that the children and she relocate to Launceston and that the children spend time with their father in Melbourne on one weekend each month, every Easter, for all of the first and third term school holidays and for half of the Christmas school holiday period. In addition, she proposes periods of time for the father in Tasmania and communication by Skype or FaceTime weekly. The mother proposes the cost of air flight travel be shared between the parties.

4. The mother relies upon an Affidavit filed by her on 4 December 2013. The father relies upon an Affidavit filed by him on 4 December 2013.  Each of the parties were cross-examined by Counsel for the other. An Expert Report prepared by Mr P, psychologist, and dated 11 November 2013 was introduced into evidence and he was cross-examined by both parties. In addition, the father relies upon affidavits sworn by his de facto partner Ms P on 23 October 2013, his son Mr S sworn on 24 October 2013, and his daughter Ms J sworn 24 October 2013. Mr S and Ms J are the children of the father’s first marriage which ended upon separation in 1995. At that time, Ms J was one year old and Mr S was five years of age. They are now 19 and 23 years respectively. The mother and father in these proceedings commenced living together in around April 2000 when Ms J was approximately six years old and

   
   

   Mr S approximately ten years old. The parties married [in] 2004, sometime after the birth of both their children, and separated on 9 September 2005. In the five and a half year period they cohabitated the mother established and maintained a good and affectionate relationship with the children of the father’s first marriage. Following separation, the mother sought to retain this. Further, she encouraged the loving relationship which exists between the children and their half siblings Ms J and Mr S. Unfortunately, and unnecessarily in my view, Ms J and Mr S were involved in these proceedings and thought it appropriate that they criticise the mother. Their father relied on affidavits sworn by them despite those affidavits being of not much assistance to the Court. They are of an age and at a stage in life where they are moving forward with their study and employment plans. Whilst they currently live with their mother, as they have always done, and in [R], there is no certainty that will continue to be the case over the next few years. As Mr S said in evidence, he will move to where prospective employment takes him, including interstate. The frequency with which they see the children now would not be significantly altered by the children’s proposed move to Launceston. Their assertion in each of their respective affidavits that “both of the children have been subjected to upheaval in their life both in relation to their home and schooling over recent years” is factually inaccurate, and offensive to the mother. It was clear on the evidence that they are very united behind their father and surprisingly, and without consultation with the mother with whom their relationship is now strained, or thoughtful analysis, they expressed a view as to the children’s best interests, being that the children should not relocate. It is a finding which the Court must make. I place little weight on their evidence.

5. A consideration of Ms P’s evidence is also timely at this point. She is an [omitted] by profession, running her own business. She is the current partner of the father. It is her home in [D] in which she and the father reside, together with her two adult daughters who are aged 21 and 23 years. Ms P and her daughters have a caring and good relationship with [X] and [Y].  Ms P observes, and the Court accepts, the close relationship between the children and their father. Ms P supports the father in his relationship with his children and is inclusive of the children in their various family activities. Whether the children live on the Mornington Peninsula or in Launceston, Ms P will continue her support of the father/ children relationship. She will do this emotionally and also financially as her income, which is significantly greater than that of the father, is applied to the benefit of the family unit as a whole.

6. It is in the children’s best interests that they continue to live with their mother. This is conceded by the father conditional upon them residing in the State of Victoria and, it would appear from the evidence, being in some reasonable proximity to his residence. Currently, they are approximately 70 kilometres apart because of the father’s selection of where he resides. If the mother presented a case where she claimed that she would relocate to Launceston without the children, if they could not accompany her as determined by the Court, then it is difficult to see on the facts of this case how the Court could conclude it was anything other than in the children’s best interests that they go with their mother. But she does not say that. As the reliable, responsible and all loving mother that she is, she cannot and would not abandon them in that way. The children have always lived with her and on the Mornington Peninsula. She has been their primary care giver. The parties separated eight years ago when the children were four and two years of age respectively. Final parenting Orders were made on 16 January 2007. They provided for the residence of the children with the mother and in five nights out of 14 for the children to spend time with their father during school terms, together with half the school holidays and special occasion times. In 2011, consequent upon the father’s relocation, the children moved to spending three nights a fortnight with their father during school terms. In the eight years since separation, the mother has moved from the former matrimonial home in [T], to rental accommodation in [S], and then to a home purchased by her in [C] which is just some seven kilometres from [S]. The basis of such moves were to promote the best interests of the children. The father sought, unfairly, to put a different light on the mother’s limited and perfectly reasonable accommodation changes. In part, they were driven by the mother’s need to provide financially for the children. The father’s child support payments have historically been low. He claims to have had a loss in his business of approximately $70,000 and then, in 2011 and 2012, an income of $30,000 gross per annum. In this financial year that income might increase to $50,000 to $60,000 gross per annum. The father operates a [omitted] business with a current turnover of $1,000,000 annually and which employs six people. His claimed income and reluctance to seek out more remunerative employment has meant he has contributed $54 a week to the support of the children and also that he has been in arrears in his payments. That child support amount has recently increased to $108 a week following a child support review.

7. The mother describes a number of advantages for herself and the children living in Launceston which are not available to her, and them, now. Firstly, she refers to a shorter commute time to get to work making her more available to the children before and after school. Currently, she works on a permanent part-time basis at [omitted]. Her commute time is approximately one hour each way and the cost of petrol $100 each week. I note this sum is her total petrol cost weekly. On her income of $33,000 gross per annum, this is a significant cost. This element of cost of living is a further advantage, as she perceives it. She believes she will be able to obtain cheaper housing in Launceston and have some equity left over from the sale of her current home were she to put it on the market. None of this is tested and no expert evidence is before the Court. No transaction and removalist costs were considered by her. No job has been obtained by the mother in Launceston, nor job offered to her. The scenario the mother paints could be accurate and it could be wishful thinking. I do note her evidence that she is confident of obtaining employment but has not sought to take up any position because she is unsure whether the children will be able to relocate.  Further, the mother has two close friends, although not particularly long standing, in Launceston who she and the children visited last year. Her children and Ms G’s (one of her friends) son got along very well together.  This was however the first time they had met. The children of course have many friends and, importantly, extended family in Victoria as does the mother, although she is estranged from her mother and sister, a matter to which I shall return. The mother is in a relationship with someone on the Mornington Peninsula, but has not discussed the move in any great detail (in terms of the relationship) with that person. The mother also argued that the schooling opportunities available in Launceston in particular for [X] were superior to that available on the Mornington Peninsula. There was no probative evidence before the Court to support that assertion. There was evidence simply that the parties cannot afford a private school education for their children and that there are suitable State schools available to them in either location. It cannot be said that these vaguely put lifestyle factors which may or may not eventuate, could on their own, better promote the children’s best interests than their continued residence in Victoria, in closer proximity to their father which will produce more regular periods of time spent with him.

8. The mother has no employment in Launceston. She has three days a week employment of long standing duration in Melbourne. Her current employment enables her to be at home by 5pm on the days she does work, and to spend time with the children each Monday and Friday when they are home from school and she is not employed. Her financial position and that of the children has been made secure by her. It is more unknown in Tasmania. Her freelance [omitted] work produces very little income and can be earnt from any location. It is at best $1,200 in a year.  

9. A significant factor in the determination of this case are the wishes of the child [Y] and what weight the Court gives to them. [Y] is of sufficient age and maturity on the evidence, for those wishes to be given considerable weight. [Y] does not want to go to Tasmania because she would miss her father. As Mr P said, of [Y]’s relationship with her father, “She identified strongly with him, feels a special closeness to him, and feels well cared for by him.” He noted [Y]’s wish was to see more of her father, not less.

10. Another significant factor in the determination of this case is the wishes of the child [X]. [X] expressed a wish to relocate to Tasmania. Mr P described it thus (at paragraph 30):-

    “[X] has invested in a move to Tasmania because his mother wants to move. He was dismissive of his father’s concerns and told me that he did not care that his father would miss him, that it would be hard for his father to see him and that he won't get to see other members of his family. He told me, “I don't care if it doesn't work out, I just want to go to Tasmania.” He clearly has a stronger sense of belonging with his mother, experiences a greater sense of acceptance and understanding from her, and finds it easier to communicate with her.”

11. [X] and [Y] have been very stressed by the conflict between their parents and by the input of those extended family members on the father’s side. [X] presented to Mr P with a number of idiosyncrasies. Mr P said (at paragraph 50):-

    “His anxiety, his ruminations, his rambling monologue, his poor eye contact, a sense of social awkwardness and some troubles with empathy were all clear characteristics of his presentation. There is clearly some basis to Mr Pallai’s concerns about the possibility of Asperger’s syndrome.”

12. Following the hearing the parties had an appointment for [X] to be assessed by a psychologist. Both parties agree that [X] should have available to him any supports he needs should he be diagnosed as having Asperger’s syndrome or any other form of Autism Spectrum Disorder. The father has been concerned about [X]’s presentation for some time, though he has never conveyed such concerns to the mother. The mother has not had any concerns. She does not think her son has Asperger’s syndrome, although her evidence was also that [X] himself asked her one day whether she thought he may have a form of autism. She was surprised by the question. She strongly disagreed with Mr P that [X] lacked empathy describing him as “one of the sweetest, most caring children” who had “an awful lot of empathy”. She agreed that [X] had difficulty maintaining eye contact and said that was something she had worked on with him since he commenced school.

13. The parties are themselves very good, loving parents. They love and support their children and their children love them. They each have the capacity and do provide for the emotional and physical needs of their children. Mr P observed [X] to relate warmly to his father and that notwithstanding [X]’s stated anxiety regarding his father, he observed him to engage easily, comfortably, confidently and effortlessly with him.

14. The difficulty for the children is that their parents’ relationship is marred by poor or no communication, and at times hostile exchanges. However, there is no evidence to support the father’s contention that the mother is trying to marginalize him in the children’s lives, and indeed much evidence to the contrary. Mr P did not find the mother to be acting so, despite the father’s assertions. Nor does the Court. Of great concern though for the welfare of the children is the parties’ inability and lack of willingness to speak with each other about matters vital to the children’s welfare. That the father did not convey his concerns as to [X]’s presentation to the mother is breathtaking. That the father and mother have not acted in concert to determine [X]’s secondary schooling in Victoria or Tasmania is highly detrimental to [X]. Even at the hearing of the matter they could not and would not discuss it or seek any orders with regard thereto.

15. The maternal grandmother has an estranged relationship with her daughter because she has difficulty accepting her sexual orientation. The mother has been involved in lesbian relationships since her separation from the father. Despite the maternal grandmother’s hostile attitude toward her, the mother in these proceedings has been content for a relationship to be fostered by the father as between the children and their grandmother. But the father has not simply visited the grandmother with the children. Rather he has left them staying with her for periods during the school term holidays of three or four nights, as he is working and requires them to be looked after. He also thought it gave the children an opportunity to see their maternal aunt and cousins whom they would not otherwise see. He has not spoken to the mother of this, nor indicated to her that they could remain in her care as he was unavailable to care for them. Instead he has placed them in the care of the maternal grandmother who is highly critical of her daughter. This cannot promote their best interests in circumstances where the mother is herself available to care for her children. The father will be required, by order of the Court, to be in substantial attendance himself on any further holiday periods, unless the mother agrees to his care arrangements which he must discuss with her rather than using the children as a conduit of information – which he has done.

16. The evidence of Mr P was very persuasive. In his view, maintenance of the current arrangement allows the children a meaningful relationship with both their parents and allows for the parents to provide to the children the active participation and nurturance they currently both provide. A move to Launceston would be detrimental and difficult for the children in the sense of removing them from all that is familiar. For [Y], that move would produce a great loss in the reduced contact she would have with her father. On the evidence and in part because of the financial constraints of both parties, the children would see their father probably once each month and rarely for any other periods during school terms. Mr P’s evidence was that although [Y] is a fairly adaptable person, and fairly resilient and quite sociable, and so would be “okay” consequent upon the proposed move, it would be better for her if the move did not occur. The relocation would see [Y] dealing with sadness in her life, being the absence of her father. As to [X]’s wishes, he said that it was difficult to unravel the expression of [X]’s wishes from those of the mother’s wishes and that [X]’s relationship with his father was significantly better than he ([X]) described it. [X] has been caught up in his parents’ dispute and it has become overwhelming to him. Mr P’s view was that whether he lived in Victoria or Tasmania, [X] would be fine vis-a-vis his relationship with his parents. The more difficult thing for [X] will be the forthcoming change to secondary school because he has some developmental difficulties. On the evidence, I find both parents are capable of and should be involved in supporting [X] through the next 12 months of transition to high school. That can best be done by there being no relocation.

1. Mr P’s further evidence was that [Y] wants more time with her father generally. This appears to be the basis of the father’s application concerning weekend time. [X]’s expressed view is for less time, although that view is somewhat clouded. The children should at this age still remain together in their time spent with their father. They should perceive their father wants and supports them equally. [X] is very dependent upon his mother, and on entering secondary school will need her support in establishing peer group networks for weekend activities in their local area. The children’s school lives will be lived in close proximity to the mother’s house, rather than the father’s. In addition to this, the father currently does not use the time already available to him in the holidays. It may be that he can re-organise that part of his life, so as to enable him to do so and thereby satisfy [Y]’s wishes to see more of him. The children should continue to alternate their weekends between their parents’ households. In that way their best interests are served.

2. I conclude that it is not in the children’s best interests, for the reasons stated above, for the mother to relocate their residence from Victoria to Tasmania at the present time. [X] still needs both his parents regular input, in particular, in the coming 12 months of transition into a new school. [Y] needs her father’s physical presence on a regular basis, albeit she already has a secure attachment to him.

3. Finally, I add to these Reasons that it is acknowledged that this outcome will of course disappoint the mother. She impressed the Court as a caring and responsible mother who has put her children’s needs ahead of her own and who provides them with a secure and stable home. She was a witness of integrity. She will cope with this decision to the extent that her parenting capacity will not be diminished, as was stated by Mr P, and as is supported by the evidence. The mother may find a relocation within the State is desirable and possible, to achieve the best academic environment for the children in the years to come. There may even be circumstances where living in Launceston with the children can be revisited. But on the facts as they currently are and on the evidence before the Court, in particular that of Mr P, that time is not now.

I certify that the preceding nineteen(19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  15 January 2014