Heath & Heath

FAMILY COURT OF AUSTRALIA

HEATH & HEATH

[2012] FamCA 844

FAMILY LAW – CHILDREN - Relocation

Family Law Act 1975 (Cth)

APPLICANT:

Ms Heath

RESPONDENT:

Mr Heath

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3318

2011

DATE DELIVERED:

4 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

4-8 June 2012 and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Reid Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Pearson Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harland

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED THAT:

The parties have equal joint parental responsibility for the children of their marriage namely M born on … May 1998 and

L born on … February 2003.
The children shall subject to these Orders live with the mother.
The children shall spend time with the father:
(a)from after school Thursday until commencement of school the following Wednesday each alternate week
(b)for half of each school holiday period and in the absence of other agreement in the first half in even numbered years and in the second half in odd numbered years
(c)on the father’s birthday if the children are not already residing with him on that day from 3.00 pm on the day before the father’s birthday until the commencement of school on the day following the birthday if that day is a school day or in the event that it is not a school day at 10.00 am on the day following the birthday
(d)on the mother’s birthday if the children are not already residing with her on that day from 3.00 pm on the day before the mother’s birthday until the commencement of school on the day following the birthday if that day is a school day or in the event that it is not a school day at 10.00 am on the day following the birthday

(e)on the children’s birthdays if the children are not already residing with the father on that day and the birthday falls on a school day both children are to spend time with the father from 3.00 pm until 6.00 pm and if it falls other than on a school day both children are to spend time with the father from 9.00 am until 3.00 pm
(f)on the children’s birthdays if the children are not already residing with the mother on that day and the birthday falls on a school day both children are to spend time with the mother from 3.00 pm until 6.00 pm and if it falls other than on a school day both children are to spend time with the mother from 9.00 am until 3.00 pm
(g)unless otherwise agreed on Christmas Day the children shall spend time with the father from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in even numbered years and from 3.00 pm Christmas Day to 3.00 pm Boxing Day in odd numbered years
(h)unless otherwise agreed if the children are not with their father on Fathers Day the children shall spend time with the father from 6.00 pm on the day before Fathers Day until the commencement of school on the day following Fathers Day
(i)
unless otherwise agreed if the children are not with their mother on Mothers Day the children shall spend time with the mother from

6.00 pm on the day before Mothers Day until the commencement of school on the day following Mothers Day.
(j)on all special occasions referred to above the parent receiving the children will be responsible for collecting the children at the commencement of the period.

Each of the parties will be at liberty to attend and engage in any sporting, after school, recreation, educational or other activity in which the children are involved and shall use their best endeavours to keep the other parent informed of all such activities and provide reasonable notice thereof to facilitate their attendance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heath & Heath has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC3318 of 2011

Ms Heath

Applicant

And

Mr Heath

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings in which the mother of two children seeks an order that she be permitted to relocate their place of residence from Australia to the United Kingdom. The father opposes the orders sought. He says that whatever order is made he will not in the foreseeable future return to the United Kingdom. The mother says she will not return to the United Kingdom absent an approval to relocate the children’s ordinary residence to the United Kingdom.
Each of the mother and the father acknowledges that the children love each of them and that each of them is making a contribution to the attainment by the children of their maximum potential. The father asserts and the mother does not deny that in every respect he is a “hands-on father”. The children she says enjoy their time with him.
Each of the parties has pleaded in the alternative telling the Court what orders would be sought as to contact with the father in the event that the mother is permitted to relocate and in the event that she is not permitted to do so. In broad terms the father seeks that the time presently spent by him with the children be increased and the mother’s view is that substantially the time most commonly allocated so far be continued notwithstanding the increase in age of the children and the apparent ability of the father to parent.
It is the mother’s case that she made a mistake returning to Australia and that she perceives the United Kingdom as home and that is where she wants to be. She asserts that the eldest child, her daughter, also wants to be there. The youngest child says he does not care where he lives providing everyone (including the father) is together.
The mother is clear in her evidence that if she is not permitted to relocate with the children to the United Kingdom she will remain in Australia herself.
The father, who has a new partner, says that a return to the United Kingdom by the children will have a significant adverse effect on the meaningful nature of their relationship with him. He will be reduced to communicating by email, telephone, Skype and letters and on the few occasions that he is able to either go to the United Kingdom or the children can be brought here. The costs of such contact would be considerable and as a result the contact would be limited.
Expert evidence formulated prior to the testing of other evidence on a margin favoured relocation of the children to the United Kingdom. The Court, however, unlike the expert, has heard the evidence tested. It is faced with making the decision as to whether the limitations on the children’s relationship with their father (which would undoubtedly arise in that event) and the inability of the father to properly fulfil his responsibilities as a father and have a meaningful relationship with his children are, from the perspective of the consideration of the best interest of these children, balanced by what is said to be an extinguishing of the mother’s unhappiness at her unfulfilled longing to return to her homeland and the effect that might have on the children’s interests.
The Court also has to determine whether arrangements for the children to spend time with their father have arrived at a time when the interests of the children require a reconsideration of the amount of time available for the father to contribute as he can to his children’s welfare and if so what amount of time is appropriate.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The mother was born in 1964 in the United Kingdom and is currently aged 47.
The father was born in Scotland in 1965 and is currently aged 46.
In 1986 the parties met in the United Kingdom.
In 1989 the parties commence living together in the United Kingdom.
In 1993 the parties marry in the United Kingdom.
In 1995 the parties move to Australia (where they subsequently live for ten years).
Between 1995 and 2005 the mother visits the United Kingdom approximately once every 18 months.
The parties obtained Australian Citizenship.
The parties purchase the matrimonial home at Property P, Suburb Y.
In May 1998, M is born in Australia and is currently aged 14.
In February 2003, L is born in Australia and is currently aged nine.
Between 1998 and 2006 the mother alleges that the father is a very “hands-off” parent and that he rarely helps with the children in any way and does not attend any of their sporting or school events. The father denies this and says he was involved in the children’s care at times when he was not working.
In 2005 the maternal grandfather (in the United Kingdom) is diagnosed with cancer. The parties decide to return to live in the United Kingdom in order to spend time with the maternal grandfather in his last days. The parties do not sell their home in Sydney. The father says they only expected to remain in the United Kingdom for two to three years.
In May 2005 the parties return to the United Kingdom (at the time, M is

nine years old and L is two years old).
On 16 March 2006 the maternal grandfather passes away.
In April 2006 the parties separate in the United Kingdom. The mother and children remain living in the rented family home and the father moves out. The parties put a parenting arrangement in place whereby the father spends Tuesday and Thursday evenings with the children and returns to the matrimonial home on alternate weekends to spend time with the children, with the mother vacating the home on those weekends.
In June 2007 the mother completes training as a teacher.
In September 2007 the mother obtains work as a teacher at L’s school and works there on school days from 8.30 am to 1.30 pm until July 2010.
In 2008 the father says the parties started to plan to relocate to Sydney, but he then obtained a lucrative employment opportunity in the United Kingdom. The father says the mother and the children are keen to return to Australia.
In May 2009 the father completes the employment opportunity, but does not receive immediate payment.
In 2009 the father obtains accommodation with room for the children to stay overnight. The children start spending time with the father on alternate weekends in his home (rather than in the mother’s home).
In May 2010 the father receives full payment for the previous employment and begins to look for employment opportunities in Sydney.
On 1 September 2010 the father secures employment with Company F in Sydney with a contract commencing on 1 January 2011.
On 3 October 2010 the mother and children arrive in Australia on their return tickets and move into the matrimonial home in which the parties lived when they were previously in Australia. Both children finish the school year at V Primary School (the father says they moved to Australia at this time so M could rekindle her friendships before moving to High School).
On 19 December 2010 the father arrives in Australia. The father initially resides in the family home with the mother and children while looking for his own accommodation.
On 26 December 2010 there is an incident between the father and children when the father tells L to eat his breakfast, during which the children allegedly end up in tears.
On 17 January 2011 the father moves out of the matrimonial home to a three bedroom property at Property C, Suburb Y. By agreement, the children start spending six nights a fortnight with the father (Tuesday and Thursday nights every alternate week, Tuesday night and Friday to Monday every other week). The father says the parties rejected the idea of a week-about arrangement because it involved too much movement between houses for the children.
In January 2011, M commences high school at K High School and L commences Year 2 at V Primary School.
In 2011 the mother says she is unable to find work as a Montessori teacher.
Between 3 and 29 March 2011 the paternal grandfather visits Australia.
In March 2011 the parties attend six mediation sessions with Relationships Australia and also attend the “Kids in Focus” seminar.
In March 2011 the mother says each of the children express a wish to her to return to the United Kingdom.
On 18 March 2011 the father says the mother first raises the issue of wanting to return to the United Kingdom when he raises the issue of discussing a property settlement.
On 29 March 2011 the father says that the mother unilaterally alters parenting arrangements and that the children then start spending time with him for Thursday evening every alternate week and from Friday to Monday every other week.
On 16 April 2011, M tells the mother that the father made M unlock her mobile phone and that he checked all of her messages to see if she was telling the truth about things.
In April 2011 the father agrees for M to attend a Royal Wedding party (to celebrate the wedding of Duke and Duchess of Cambridge) on the condition that she run in a Sydney Fun Run with him on 22 May 2011 (which the mother says M did not want to do).
On 9 May 2011 the father becomes angry with M because she refuses to bring a spare key around to his house. The mother alleges the father says to M, “Just remember [M], good things come to good people and bad things come to bad people.”
On 22 May 2011, M and the father run the Fun Run in Sydney.
On 1 June 2011 the mother files an Initiating Application seeking Final Orders, inter alia:
a)sole parental responsibility
b)the children live with the mother
c)permission to relocate the residence of the children to the United Kingdom
d)until the children relocate, that the father to spend time with the children every alternate weekend from Friday to Monday and every other week for dinner on Thursday (or for this regime to continue if relocation is not permitted)
e)upon relocation, if the father is in London, he spend time with the children as above and for a 14 day block each year
f)upon relocation, if the father is in Australia, he spend time with the children:
i)for three weeks in the United Kingdom summer holidays, in Australia, with the father to pay for the children’s flights
ii)for seven days over Christmas every odd year, with the mother to pay for the children’s flights
iii)for a seven day period whenever the father visits the United Kingdom
iv)for seven days in the spring or autumn holidays every even year, in any country, with the father to pay for the children’s flights
g)the children have liberal telephone and Skype communication with the father
h)if relocation is not permitted, that each parent be permitted to travel with the children for six weeks a year in school holiday periods
and Interim Orders, inter alia:
a)relocation be permitted and that orders be made as per above
b)a Family Report be prepared.
In June 2011 the mother searches for Suburb Y (Sydney) accommodation on realestate.com.au and says there are no “three bedroom plus” apartments or houses available in Suburb Y for under $750,000.
In June/July 2011 the mother searches for Suburb W (London) accommodation on foxtons.co.uk and identifies several three bedroom properties for between $460,000 and $750,000.
On 23 June 2011 consent orders are made for the appointment of Dr B as a single expert.
On 27 June 2011 Orders are made for the parties to attend a Child Responsive Program and the appointment of an Independent Children’s Lawyer.
On 18 July 2011 the parties meet with Ms T, Family Consultant.
On 20 July 2011 the parties and children meet with Ms T, Family Consultant.
A Child Responsive Program Memorandum and Children and Parents Issues Assessment is prepared.
On 21 July 2011 the father files a Response seeking Final Orders, inter alia:
a)equal shared parental responsibility
b)equal time through a “week about” arrangement (Thursday to Thursday with each parent and half school holidays)
c)the mother be restrained from relocating the children’s residence more than 20 kilometres from their current schools
d)each party be permitted to take the children to the United Kingdom for three weeks each year during their holiday periods with each parent
and Interim Orders, inter alia:
a)the mother be restrained from relocating the residence of the children to the United Kingdom
b)equal shared parental responsibility
c)equal time through a “week about” arrangement (Thursday to Thursday with each parent and half school holidays)
d)each party be permitted to take the children to the United Kingdom for three weeks each year during their holiday periods with each parent
e)the Independent Children’s Lawyer nominate a psychologist for the children to attend and that the psychologist be briefed with a joint referral letter, the report of Dr B and the pleadings
f)the parties (including the Independent Children’s Lawyer) not communicate with the psychologist unless telephoned by the psychologist and that no subpoena issue to the psychologist.
On 29 July 2011 the mother files an Amended Application in a Case outlining more detailed parenting orders in the event that relocation is not permitted on an interim basis.
On 3 August 2011 the single expert report of Dr B is released to the parties.
The matter was listed for interim hearing. Consent Orders are made in relation to parenting and property. The parenting orders provide for:
a)the Application in a Case and the father’s Response for interim orders to be dismissed
b)the parties to have equal shared parental responsibility for the children
c)the children to live with the mother and spend time with the father:
i)in week one from 3.00 pm to 8.00 pm on Tuesday and from
4.00 pm on Friday to the commencement of school on Monday
ii)in week two from 3.00 pm to 8.00 pm on Thursday.
On 1 September 2011 the father files a Financial Statement and an Amended Response to Initiating Application seeking amended property orders.
In September 2011 the mother and children’s tickets to return to the United Kingdom expire.
On 12 September 2011, Watts McCray files a Notice of Ceasing to Act for the father.
On 23 November 2011 the matter is listed for a [First-Day] Less Adversarial Trial intake.
In January 2012, M commences Year 8 at K High School and L commences Year 3 at V Primary School.
On 3 March 2012 orders are made dismissing the father’s application to discharge the single expert.
The Independent Children’s Lawyer was not in a position to formulate orders for consideration on the first day of the hearing.

The Issues

What are the parenting orders which should be made to foster the best interests of the children given the alternate proposals of the parties after a consideration of the various matters to be taken into account under the Act.

Credit

The father in his evidence was clear and straight-forward. He was responsive to the questions asked and gave evidence in a frank manner acknowledging on a number of occasions matters against interest. He clearly acknowledged that some of the things he had done were on reflection insensitive and could have been done better. He appealed to the Court as generally an honest witness, a witness of truth and the Court so finds him.
The mother’s evidence was given in a strongly labile fashion. She was unresponsive in many of her answers and despite warnings continued to be so.
She conceded that she had altered the text of conversations had with the children where they were reported in her affidavits.
Some of those alterations were to embellish the conversation in a way advantageous to her case. She provided as a statement of the child a statement reported as a conversation which was rather what she thought the children meant by what they said but not necessarily what they said.

On one occasion she reported something which was neither said nor meant.
Notes which the mother asserted were contemporaneous notes from which she had given instructions for her affidavit had either omissions or were different from the material contained in the affidavit.
By reason of these matters the Court found her evidence not to be reliable and, where it conflicted with that of the father, preferred that of the father. In addition, the Court came to the conclusion that otherwise her evidence, particularly of what the children had been said to have said, was unreliable.
The following persons gave evidence and were subject to cross examination:
Ms P gave evidence that she had conversations with the mother and M. Some of the evidence related to discussions between the parties concerning the current dispute and about the mother’s plans upon her return to the United Kingdom. The witness importantly said that L had no reservations about coming to Australia but was surprised that M had come because of her love for London.
Ms E, the mother’s sister, deposed that she and the mother had contact on average once per month either in Suburb W, London or Town U, and the children visited her approximately five times a year. The commuting time between London and Town U appears to be three to four hours and on occasions longer.
Ms E also deposed as to conversations with the mother and gave particulars of her contact with her in the United Kingdom by telephone and in person. She expressed the opinion that the mother returned to Australia because outdoor life was better for the children and the plan had always been to return to Australia, and she stayed to that plan. She confirmed that after the mother returned to Australia that she expressed to her sister her unhappiness about her decision. She also gave evidence of discussions between herself and the mother concerning whether the mother would live in Suburb W or Town U upon her return to the United Kingdom.
The father called his friend Mr G to give evidence. He commented favourably on the father’s ability to parent, saying in effect he is a parent who is firm with the children, a “no nonsense father” who expects standards to be maintained by the children. He observed that if those standards are not maintained he speaks to the children, set out his expectations and asks the children why they are doing what they are doing. He denied he had heard the father shout at the children.
The sister of the father, Ms A, was called to give evidence. She recounts that the father said he would be upset if the children were permitted to return to the United Kingdom to live. She also gave evidence in her affidavit that M expressed to her that she was looking forward to seeing her friends in Australia.
Mr R Heath, the father’s brother, gave evidence and confirmed that the father informed him that he is unable to return to the United Kingdom, and confirmed that the father told him he would not move back to the United Kingdom.
Dr B, who prepared a report in the proceedings, was cross-examined on his report.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order the Court must regard the best interests of the children as the paramount consideration (see section 60CA). In determining what is in the children’s best interests, the Court must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
The Court is required to ensure that any order it makes is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG).
The Court will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
The Court is required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are the Court will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires the Court to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the children’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

The case is one in which the Court is faced with two parents who are good at parenting although different in their style with the father perhaps more directly setting and maintaining boundaries. The mother’s disciplinary style seems more an attempt to appeal to reason although she is not beyond applying some measure of threat (unspecified) in the absence of compliance.
Each of these parents by common accord between them is a good parent.
Each of these parents by common accord between them loves their children.
Each of these parents recognises that the other has different but equally valuable contributions they can make to the development by their children of their full potential.
Neither of the parents says that there should not be a continuing and supportive relationship between each of them and the children. It is rather whether that aim can be achieved in the event that the Court decides that the children should remain in Australia, or relocate to the United Kingdom.
Although the parties differ in their views as to the extent of the time that should be spent by the children with each of them, each of them proposes that in the circumstance where it is practical to do so there should be substantial time spent by the children which each of them.
The evidence is that each of the children loves each of the parents. That is not to say that there have not been occasions of dispute between particularly M and her father. She has on one occasion described herself as loving her father but at that time not liking him. That reaction could well be within normal range for child/parent relationships.
The Court finds that the evidence is that the children do have a meaningful relationship with each parent.
Nothing in the above signifies that there should be any reason why in ordinary circumstances these children would not maintain such a relationship.
However, in the event the mother’s request to relocate their residence to the United Kingdom is acceded to, the children will be removed from direct physical access to their father. It will not be possible for him to put a consoling arm around them nor proximately and immediately cheer their successes and comfort them in their failures. It is not possible for the children or the father to cuddle by computer. It is less likely that his experience and counsel will be sought in matters of concern to the children.
The father will not be there to immediately respond in the event of sickness or accident or illness or problem with school, society or relationships.
The father is likely to become a remote relative communicating by electronic means and visiting occasionally for short periods of time; a pleasant relative but not one where a meaningful relationship with him as father will be maintained. The expert points to the inevitability of this change.
These children by every measure will enjoy a benefit from a meaningful relationship with each of their parents and to do so fully they must have, in the Court’s view, access to and available with immediacy the presence and influence of each of the parents.
There does not appear to be any suggestion that the mother’s sadness at being unable to return to the United Kingdom will impair her relationship with her children. It is not in the Court’s view likely that she will blame or resent them.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It is said in this matter that the children are in danger of psychological harm in the case of both of them from the unhappiness of their mother. The mother is described in the evidence as having a number of symptoms of her unhappiness.
In her evidence she was emotionally labile but quickly recovered stability when necessary.
It is not good that children should have an unhappy parent. They may blame themselves for that fact. This mother believes she made a mistake coming back to Australia.
Although she concedes that she originally wanted to come she found, she said, that she returned to a different situation to the one she had left. That is true. The parties had separated in the United Kingdom and the father had

re-partnered.
The former matrimonial home was sold. She then saw her future, her home and her consolation and support in the United Kingdom rather than in Australia and it seems developed a yearning “just to go home.”
The Court was however much impressed by the mother’s determination in the event her request for relocation was refused to square her shoulders and get on with it. This was, the Court accepts, not just an example of British stoicism but in reality a real and heartfelt expression of commitment to her role as mother and the needs of her children.
The Court finds she will be able with assistance to do this. She will have the assistance of her friends and her therapists here. She has the occupation as mother to keep her busy and the search for employment to also take her attention. She will be able to continue to communicate with her friends and relatives in the United Kingdom by electronic means. She has in the past and could in the future return to the United Kingdom for periods of time to renew direct contact with them.
Indeed the father was prepared to offer some financial assistance with the children’s fares to enable them to return with her to the United Kingdom for holidays so that she can maintain contact with them and the children will have continuing acquaintance with their extended maternal family. It is noted that the father’s family resides in Scotland and that he too will make some arrangements for that extended family’s acquaintance with the children to be maintained. The mother has also co-operated in the past with the maintenance of those relationships.
In the circumstances it is not found that the failure to grant permission for relocation is something which is likely to cause damage or harm to the children.

Additional considerations

(a)any views 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 views

The eldest child M is aware that her mother wishes to move to London and her father is not supportive of that move.
She explained to the expert that her return to Australia presented to her a different situation to the one she had left and many other of her friends had in effect moved on.
She stated clearly that she wanted to return to the United Kingdom. This child presently lives the majority of her time with the mother. The view of the child aligns with the mother. Other evidence suggests that this is not the only matter on which this child is in such alignment. Whilst it is understandable it is probably also indicative that she will realign with her mother’s views as to the future otherwise expressed to the Court in the event that removal to London is refused.
She said absent approval to go she would be sad and angry with her father for a while but that she would cope with living in Australia and would most likely have to move house and change schools and start all over again doing everything she did nine months ago all over again. She was unable to see much in downside in returning to London. She said “that she would continue to love her Dad but would not miss him.” She nevertheless stated that she “wanted her father to be proud of her.”
L reported that he enjoyed a number of activities with his father including soccer which each of them play.
He expressed the view that it was ‘“Ok” in Australia but more “Ok” in England’ and that he knew his father did not wish to go. He wanted however that his family stay together be it in England or in Australia. “If the judge said that they could go but that the father could not due to work commitments then he would ask that they stay in Australia.” He expressed the view that his ideal would be “Dad not to be angry anymore have Mum and Dad not fight and go back to England.”
Of his current schooling L said it was a bit scary at first but now it is fine. He was asked what he would do if he could not return to his old school at Suburb W in the event he went to London. He said, “I would be upset and wait until I could go there.” He said that he had known his English friends longer than his Australian friends. L observed that the longest time he had stayed away from his father was about one month when he and his mother and sister came to Australia before his father came.
The Court in making its determination having regard to the ages of the children will treat their views as informative and carrying some weight but will not give them decisive weight.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The children, each parent concedes, have a close and loving relationship with each of their parents. It is clear that they love their father and he them. The mother concedes in her evidence that the father does things for and with them that she cannot do.
The father has a different style of parenting to the mother and it is not necessarily one that the children prefer.
Nevertheless there is nothing to indicate that it is not a perfectly appropriate, if different, style. It was described by the father and the Court found nothing objectionable in his description of it. It may be that a variation on the style with M may be more productive and the Court commends to the father a consideration of the expert’s evidence in this regard.
The Court accepts the father’s evidence but appreciates that he and the children may see things differently. Children who are being corrected generally do.
The children have good relationships with the maternal extended family particularly that part of it who live in Town U which the mother considers to be one of her options for residence. They will be able to maintain those relationships electronically while resident in Australia and will have the opportunity to renew them in person whilst on holiday in the United Kingdom.
If the mother was allowed to return to the United Kingdom and were to take up residence in Town U, which she indicates is something she is considering, then the maintenance of relationships between the children and their former friends at Suburb W School would have a geographical impediment. It would be in a way which of course is nowhere near as significant as the impediment to the relationship with their friends or their father in Australia however the children will be faced with the need to make and retain new friends in that event.
The children have had contact with their paternal extended family most of whom reside in Scotland. They will be able to continue that relationship with that family perhaps on their holidays to Scotland with the father.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The claims made by the respective parents as to time spent with the children in the event that they remain in Australia are different with the mother proposing the children live with her and spend less time with the father than is sought by the father.
Some of the apparently reasonable requests of the father for additional time with the children, for example in holidays, were not acceded to by the mother.
There is no doubt that the mother misses her children when they are with the father and this may have had something to do with her attitude to his requests for additional time with them. It is however time for an adjustment to those arrangements so that the children might enjoy time with each of their parents and each of their parents have an opportunity to more fully engage with them.
The mother has clearly put the children’s relationship with their father at risk of not being close and continuing in her desire, knowing the father will not follow, to remove the children to residence in the United Kingdom.
This is not a matter which for her has been decisive and ranks a clear second to her desire to return to the United Kingdom.
The Court could only conclude that she regards it as of less importance than her own happiness and perhaps complying with the wishes expressed by M who has aligned with her.
The father’s position is that the children should continue to maintain a close and continuing relationship with each of their parents. He wishes to participate in their lives to a greater extent than has been permitted by the mother hitherto.
The mother clings to the present arrangements for the time spent with the father to continue but nevertheless is clear in her view that at least that time should be spent.
The Independent Children’s Lawyer supports substantial and significant time with the father for the children in the event that they are not permitted to relocate.
d)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 (including any grandparent or other relative of the child), with whom he or she has been living
In the event that the children were to live with their mother in the United Kingdom the nature of the change is in part uncertain.
The mother appears not to have any final arrangements there. Whilst no blame attaches to her for that given the circumstances the fact is that she is unable to say with precision what her final arrangement will be. Her information as to local conditions is derived from a consideration of sales advertisements found on internet sites.
She observes that the cost of housing in Suburb W is higher than in neighbouring suburbs.
If she, for financial reasons, opted to take up residence in a neighbouring suburb then, depending on its location, the school which the children would then attend may or may not be the school they previously attended in Suburb W.
The mother however says that she will live in London if the father returns to the United Kingdom. It is clear on the evidence that the father will not.
If the mother returns to England and the father does not it is likely that she will take up residence in Town U. There the children will have contact with some of the mother’s relatives and their cousins more easily but there it may be more difficult for them to make direct contact with the network of the friends they established in London when they previously lived there. They would then, as now, have contact by electronic means. In the event that they moved to Town U they would be obliged to make new friends at school. In Australia, they have an established network of friends with whom they associate. If the mother moves some distance from the children’s present schools a similar result may occur.

There is little doubt that if these children were to be permitted to return to live in the United Kingdom the most significant change in their lives would be the loss of a quality, meaningful and proximate relationship with their father and a dulling of the effectiveness of his exercising his parental obligation to support and nurture his children and to contribute to their welfare in a way which will enable them to attain their maximum potential. They would lose their most important male role model. They would have this need met, the mother says, by uncles. The children would be deprived of the benefits which the mother readily acknowledges that the father provides in doing things with the children that she could not do and which they enjoy.
The Court sees significant downsides for the children in a return to the United Kingdom as the ordinary place of their residence.
It is suggested that the mother will have a more settled life and greater happiness and that this would operate to the benefit of the children. That may be so but if she resides in London her relatives will primarily be in Town U and Town S. Whilst these are commutable distances it seems unlikely if she resides in London and the children attend school there that she would have other than perhaps monthly physical contact with her relatives since she gave evidence that previously she had seen them on an average of once per month. The mother may if she returns to England annually have almost the same ability and perhaps more ability to have contact with her relatives and the children with their cousins although that contact will be more concentrated. Of course the mother may have contact with her relatives by electronic means in the same way as it is suggested by her that the children might have such contact with their father.
The expert commented that a change might reduce ongoing hostility and conflict between the parties but was apparently unaware that there had been seen of more recent times a better capacity to communicate without that hostility between them being apparent.
There is no doubt that there is disagreement between them as to what is required for the accommodation of the need for the children to have a meaningful relationship with each parent but these proceedings will take that decision from them and also take the capacity to argue that issue for the foreseeable future.
It seems that the father as with the mother having parenting ability will at the end of these proceedings follow the example of the mother square his shoulders and get on with the job in co-operation with the mother of doing the best for these children.
That will, of necessity, involve the extinguishing of conflict and promotion of an enlivened spirit of co-operation and support. The Court was impressed both by the mother’s determination in this regard and the generosity of spirit in the father in offering financial support for the mother to return to England with the children on holidays.
The Court’s decision is that the children will not be permitted to relocate their ordinary residence to the United Kingdom. That decision means that the children will continue to reside in Australia and will primarily live with the mother.
The mother and father it seems are ad idem that, if possible, the children should continue in their present schools.
The mother however expresses the view that this may not be possible depending on where she can procure accommodation. It appears that the funds available to the mother are less than she thought she might have and there will be the costs of these proceedings. The Suburb Y area she says is not within her means.
Her search for affordable accommodation is yet to conclude and the Court is unaware of where she may live given the orders it proposes to make. It has been suggested that accommodation will be available in the northern beaches area within commuting distance from the children’s present schools but the mother expresses the concern that she may have to search farther afield for such accommodation.
There is a possibility in that event that the children for practical reasons might have to change school. That too could happen if the children were to return to the United Kingdom. Such a change would take time to give effect to but M particularly seemed resigned to it as a possibility which she would cope with.
It would of course be desirable for them to maintain the stability of their present schooling and their associations with peers if that is possible. The Court does not consider this disadvantage as one which would persuade it to the view that relocation to the United Kingdom should be permitted.
(e)the practical difficulty and expense of a child spending time with and communicating 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
If the parties continue to reside in Australia it is understood that the mother in search of affordable accommodation may have to move. She has said that she would do all that she could to maintain the ability of the children to continue at their present schools. The father has said that in that event in order to be close to the children he will move too. It seems unlikely that there will be practical difficulty and expense of a child spending time with and communicating with either parent if the children reside in Australia.
In the event of the mother relocating with the children to London there would be a practical difficulty and expense of a child spending time and communicating with their father and the Court takes the view that such a move, whilst leaving the children with the possibility of electronic contact and some physical contact with their father, will substantially affect the rights of these children to maintain personal relations of quality and direct contact with both parents on a regular basis.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
There seems little doubt that both parents have the capacity of provide for the needs of these children. The mother and the children to some extent have complained of the father’s parenting style. The child M says of him that he does not listen. The father has taken steps to improve his style and has given his daughter the reassurance that he does listen and that what she observes is not that he does not listen but rather that he does not always agree. One can readily imagine a child of this child’s age expressing a failure to agree as a failure to listen. The expert says that the parenting styles are different but each parent has full parenting capacity. The Court having seen the parents and heard the evidence finds that this is so.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child M is a child of above average intelligence. She is educationally successful. She is a teenager with all that goes with that period of change and the pursuit of independence. She has a significant English heritage and her mother is English. Her father is Scottish. She has lived a long time in Australia. She will in her parenting have the opportunity under the orders made to benefit from the culture and traditions of those backgrounds. L will likewise benefit. He will continue to benefit from his father’s assistance in his sports and outdoor activities which he apparently enjoys. He will have as will M the advantage of having available both their mother and their father encouraging them and acknowledging their achievements and consoling them in their failures. The Court considers that particularly for L but also for M this is an important part of their life.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This consideration does not apply to this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of these parties has demonstrated a correct attitude to the responsibilities of parenthood. There was sought to be made something of the father’s child support history but there is no evidence that the father has not paid in a permissible way all payments due although it is true that some of them were by credit for other payments made to the children’s benefit. The offer of the father to pay for the children’s airfares to the United Kingdom for a holiday demonstrates that he is prepared to be considerate in the matter of financial support for his children. The Court has no doubt that the mother takes seriously and has fulfilled her responsibilities as a parent.
(j)any family violence involving the child or a member of the child’s family
There has been some discussion of verbal violence. The father has clearly conceded that situations in which he was involved could have been handled better by him. He expresses regret for his conduct in a number of ways. The Court accepts that his regret is genuine. Whilst it is no excuse for his shouting and unseemly words on occasions it is noted that his perspective was that the mother was deliberately frustrating his relations with his children. The mother denies this but her own language on occasions was it seems less than seemly. The Court notes that there appears to be a determination now between the parents to avoid the occasions such as this again and the Court commends them for that.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such order.
(l)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
This is always a hope of the Court. When these parties leave this field of battle littered as it is with the cadavers of cost, time and emotion it is the hope of the Court that they will realise that the greatest losers in conflicts between parents about their children are their children who love each of them. They have a right to that love and each parent must accept that it is valid for the child to express it in relation to the other parent.
Ultimately all a Court can do is make a decision. A child would always prefer to have a resolution to problems. A resolution is in these cases an outcome derived from the hearts and minds of their parents and a determination by each of them to place the interests of the child above their own.
In order to assist the parties in the future to search for such outcomes it is the Court’s hope and suggestion that if required they will adopt extra curial means such as mediation in order to achieve that end.
The orders which the Court now makes are it finds the best it can presently do to avoid further litigation. Much will now depend on how the parties rise to the challenge of recognising that children as they grow have differing needs and there is a need to be flexible in arrangements to meet those needs.
(m)any other fact or circumstance that the court thinks is relevant
The Court does not intend to permit relocation of the children. In that event there is good reason for a continuation of the parties’ joint parental responsibility. The children will by accord of the parties have their primary place of residence with their mother. That has been their history. The mother has said that the children must spend time with their father. As to the quantum of that time there is disagreement between them. The mother says that what has been the case in the past should continue.
The Court, whilst it will establish a framework for time to be spent with the father, notes that each of the parents has to recognise that not only is it important to allow each parent to make their contribution and exercise their parental responsibility for their children, but also for the parents to understand that what is ideal is that there is flexibility in arrangements for children as their needs change and they develop new interests, social contacts and occupations.
The Court finds that the needs of these children are presently better served by the scheme determined by the Court’s orders. It will afford less opportunity for disharmony between the parents since the changeovers will occur at the children’s schools. It will require some discipline and each of the parents keeping in touch with the children’s commitments to homework and extra curricular matters and ensuring that they are able to deal with the transitions without difficulty. Given what has been said about the parenting ability of each of these parents the Court has little doubt that they will be able to accommodate that.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing of all considerations under Section 60CC and the issues and the evidence recited in these reasons the Court concludes that the orders it proposes will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been argumentative violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply and neither parent seeks that in the event that the children reside in Australia which will be the effect of the Court orders.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will afford the father substantial and significant time with the children and the Court finds that to be in their interests at the present time. The orders which it will make will reflect the desirability of affording the parents an opportunity to fulfil their obligations to the children and for the children to benefit from the fulfilment of those obligations. To the extent that the orders required the children to be picked up from school and returned to school the intent is that the Orders will minimise the opportunity for conflict between the parents to the detriment of the children.
The Court therefore will make the orders in relation to parenting as set forth above.

I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 4 October 2012.

Associate:

Date: 4 October 2012

[2012] FamCA 844

4 October 2012

Key Legal Topics

Areas of Law

Family Law