HOWARD & SWANN
[2015] FCCA 1950
•31 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOWARD & SWANN | [2015] FCCA 1950 |
| Catchwords: FAMILY LAW – Parenting – relocation – long standing status quo – different parenting styles – parents have not talked to each other for over five years – mutual dislike and distrust – good enough parenting. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Caravaggio & Caravaggio [2011] FamCA 254 Collu & Rinaldo [2010] FamCAFC 53 McCall & Clark (2009) FLC 93-405 R & R: Children’s Wishes (2000) FLC 93-000 MRR v GR (2010) 263 ALR 368 |
| Applicant: | MR HOWARD |
| Respondent: | MS SWANN |
| File Number: | DGC 2016 of 2009 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 9 February 2015; 10 February 2015; |
| Date of Last Submission: | 23 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 31 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hannan |
| Solicitors for the Applicant: | Grice Legal |
| Counsel for the Respondent: | Mr Burns |
| Solicitors for the Respondent: | Boers Associates |
ORDERS
BY CONSENT
All previous Orders made in relation to the children, X born on (omitted) 2003 (“X”) and Y born on (omitted) 2005 (“Y”), collectively, (“the children”) be discharged.
The father and the mother retain equal shared parental responsibility.
IT IS ORDERED THAT:
The children live with the mother.
The children shall spend time with the father at all times agreed upon between the parties in writing. Failing agreement, the children shall spend time with the father at the times set out below upon the father providing the mother with twenty one (21) days’ written notice via registered post or email:
(a)one weekend of every calendar month, during school terms either in Melbourne or Queensland at the father's election (but will not include the weekend of Mother's Day) with air travel for the children on such weekends to take place between after school Friday departure and 8.00pm Melbourne arrival Sunday (or Monday if a public holiday weekend);
(b)a second weekend of every calendar month, during school terms in Melbourne (this contact will not include the weekend of Mother's Day) with air travel for the children on such weekends will take place between after school Friday departure and 8.00pm Melbourne arrival Sunday (or Monday if a public holiday weekend);
(c)Easter weekend in even numbered years, from after school Thursday until 5.00pm Monday;
(d)for one half of all the children's school Term 1 and 3 (Victorian) holidays being the first half in even numbered years and the second half in odd numbered years;
(e)for the whole of the children’s school Term 2 (Victorian) holidays; and
(f)for a twenty eight (28) day period in each Christmas school holiday period (Victorian) being the first twenty eight (28) days in even numbered years and the last twenty eight (28) days in odd numbered years.
The children (or any one of them) shall only access the internet, use electronic games and view television under the supervision of an adult.
The parties, their servants and agents shall ensure that children shall only address their parents as mother/father or any derivative of same.
IT IS ORDERED BY CONSENT THAT:
Within 6 months from this Order, the mother shall vacate her current premises at (omitted), (omitted)to live in premises in the style of a conventional, 3 bedroom or 4 bedroom family residence.
Notwithstanding any other order, if Easter weekend falls during the children's school holidays in an odd numbered year, the mother's half of the school holidays will be whichever half includes Easter.
For the purpose of calculating and determining school holidays and changeover:
(a)school holidays will commence after school on the last day of the school term;
(b)school holidays will end at 5.00pm on the day immediately prior the first day of the new school term;
(c)if there are an even number of days in the school holiday period, changeover will occur no later than 5.00pm on the last day of the first half of the school holidays;
(d)if there are an odd number of days in the school holiday period changeover will occur no later than noon on the middle day;
(e)in relation to the Christmas school holidays, whether it is an even or an odd numbered year will be determined by the date at the start of the school holiday period; and
(f)if the children are to be collected and/ or returned by anyone other than the father, the mother or any of their family members, written notice must be provided to the other party prior to the collection and/ or return.
The mother and the father equally share the cost of the children’s travel pursuant to Order 4 above in the following manner:
(a)the parent with whom the children do not reside will book their travel arrangements; and
(b)the parent with whom the children reside will pay $125 per return flight per child (plus $20 per unaccompanied flight for Y until he turns 12) to the other parent, or such lesser amount as the other parent may advise if they have secured cheaper fares , within fourteen (14) days of the children having travelled on a relevant flight.
In the event that the children's time with the father is to be spent in Melbourne, handover will occur either at Tullamarine Airport, the mother's residence or the (omitted) at the father's election (as stated in his notice to spend time with the children), unless otherwise agreed.
In the event that the children's time with the father is to be spent in Queensland, handover will occur by the father collecting the children from the relevant Queensland airport, unless otherwise agreed.
The father and the mother be permitted to contact/ communicate with the children between the hours of 7.00pm and 8.00pm each Monday, Wednesday and Friday or such other agreed days when they are spending time with the other parent (with time being in the State in which the children are located) and this contact may be by means of including telephone, text message, internet, email and video calls (such as Face Time or Skype) but not limited to any one of these forms of communication.
For the purpose of communication in Order 13 above:
(a)each party shall provide the other with a mobile telephone number and/ or other relevant details on which the children can be contacted;
(b)each party shall ensure that the mobile telephone or other device on which the children can be contacted is on and charged at all relevant times and facilitate contact and communication;
(c)in the case of telephone or video calls if there is a valid reason for the mobile telephone or other device to be turned off at the relevant times or the parent is unable to answer, the parent who has the children will call or text message the other parent as soon as possible after receiving a message or missed call to allow the children to speak or to indicate that the other parent may call to speak with the children and the other parent will then have an hour from that time to contact the children where reasonable;
(d)the children will be permitted telephone contact without interruption;
(e)the father’s and the mother’s extended families (including the children’s aunts, uncles, cousins and grandparents (biological or step) shall be at liberty to make contact and communicate with the children in a similar way; and
(f)for the purposes of all contact/ communication pursuant to this order, the parent who has care of the children shall facilitate the contact/ communication and thereafter leave the children in a private area for the purposes of such contact/ communication.
The parent with whom the children are spending time will establish and facilitate the children's contact/communication with the other parent on the morning of the following days:
(a)Christmas Day;
(b)Easter Sunday;
(c)the birthdays of the father and his wife and their children and the mother and her husband and their children, which, as at the date of these orders, are noted to be as follows:
(i)the father – (omitted);
(ii)the father's wife, Ms S – (omitted);
(iii)the children's half-brother, A – (omitted);
(iv)the mother – (omitted);
(v)the mother's husband, Mr M – (omitted);
(vi)the children's half-brother, B – (omitted); and
(vii)the children's half-sister, C – (omitted).
The children shall be at liberty to contact/communicate with the parent who they are not with, at any reasonable time that they request, with the party caring for the children to establish, facilitate and allow that contact/communication.
The mother and the father shall not by themselves, or by their servants or agents, allow the children to be left without the supervision or an adult (or a family member who is at least sixteen (16) years of age) until they are at least fourteen (14) years of age, and even then for no more than a half day during daylight hours.
The mother and the father shall not by themselves, or their servants or agents, require the children to supervise their younger half siblings until they are at least fourteen (14) years of age.
The father and the mother may, at their leisure, visit the children at any time they wish during their school, sport and/or extra-curricular activities.
Each party notify the other immediately if either of the children requires urgent medical attention or hospitalisation while in their respective care and advise the other party of the treatment provided and the contact details for the relevant service providers upon request.
This order is sufficient authority to enable each party to obtain any information relating to the children from any medical practitioner or allied health service provider responsible for treating the children.
This order is sufficient to enable each party to obtain copies of the children's school reports, details of their progress and any other information that they request directly from the school in which the children may be enrolled or attend from time to time.
The parties be at liberty to submit applications for the children to attend schools without the other party's approval (in order to secure a place on the waiting list) but that any actual enrolment will be the subject of discussion between the parents, with the parent with whom the children reside being able to make the final decision should the parents not agree.
Neither party shall denigrate and that both parties use their best endeavours to ensure that no third party denigrates the other parent or their partner, friends or family members to or in the presence of or hearing of the children.
The parties keep each other informed in writing of any change to their email or residential address or home or contact telephone numbers within twenty four (24) hours of the date of the change.
The children's names, X and Y, shall remain unchanged.
All prior Orders restraining the removal of the children, X born (omitted) 2003 and Y born (omitted) 2005 from the Commonwealth of Australia be and are hereby discharged.
The Australian Federal Police remove the name of the children, X born (omitted) 2003 and Y born (omitted) 2005 from the Airport Watch List at all points of international arrivals and departures in Australia.
The mother's former solicitors, Belleli King & Associates, shall release the children's passports with the passport of X to be held by the mother and the passport of Y to be held by the father, with each of the parties to provide the passport they hold to the other at least fourteen (14) days prior to any overseas travel notified pursuant to Order 30 below and with the passports to be returned to the holding parent within fourteen (14) days of the child's return to Australia.
If the father or the mother intend to travel outside of Australia with the children, they shall only travel to Hague Convention countries and shall provide the other party with thirty (30) days prior written notice of such travel, such notice shall include the details on how the other parent can contact the children while they are overseas as well as the details of their itinerary, flights and accommodation (including dates, times and address/es).
If the father or the mother intend to travel outside of Australia ('1 without the children, they shall provide the other parent with forty five (45) days prior written notice and the first option to care for the children when they would otherwise be ordinarily in their care during that time of travel.
If the children request a variation to these parenting arrangements, the parties will discuss the proposed variation with a view to making any necessary amendments to these orders and, if they are unable to agree on any such amendments, the parties will attend mediation with a view to resolving the matter, at the equal expense of the parties.
Each of the father and the mother shall attend such counselling with Mr V, Clinical Psychologist (or other such counsellor nominated by him) to assist the parties in communicating with each other in relation to the children including but not limited to exercising equal shared parental responsibility with such counselling will be at the equal expenses of the parties and each party shall request their spouse attend such counselling, if requested by the psychologist/counsellor.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Howard & Swann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 2016 of 2009
| MR HOWARD |
Applicant
And
| MS SWANN |
Respondent
REASONS FOR JUDGMENT
“…out of the mouths of babes…”
This trial involved competing proposals where both parents wanted the children to live with them. There are two children, X who is aged 12 years and Y who is aged 10 years. A very helpful family report was available to the court in this matter, written by Mr V, dated 29 October 2014. It contained eye-opening interviews with the children.
At page 15, paragraph 39, the writer comments on X as follows:
“…any discussion about her parents caused her anxiety level to escalate significantly. She told me that she thought her parents probably married too young, they don’t talk to each other and they don’t like each other, and that she can tell by their tone and attitude when either on the telephone or in each others [sic] physical presence. She also told me tat [sic] they speak badly about each other and that she can just tell from the way they act and from their facial expressions. It mattered little to X what words came from her parents’ mouth, but rather non-verbal communication was clear and conveyed an unmistakable message of restraint…”
She is quoted as saying the following:
“…“I can just tell. I can tell by the way mum talks and the way mum doesn’t talk. It’s not what she says, it’s what she doesn’t say; the message is clear””
In relation to Y, the author said the following at paragraph 43, page 16:
“…He complained that his parents don’t like ach [sic] other and that his mother calls his father names, but when I pressed him on this he told me that he could remember that his mother called his father a “pig” on a single occasion but that it was not a regular or frequent event.”
I was staggered to be told that the parents have not spoken to each other for around five years and only communicated by writing. This case is a sad example how parental distrust and hostility could impinge on the proper emotional development that children are entitled to enjoy over time.
There was another dimension to this trial. The mother’s case could be a study on how not to prepare a matter for trial. Although the mother has remarried and her current husband will have a significant role in the current and future care and welfare of these children, he was not on affidavit until I insisted he should be called as a witness. That affidavit was filed on Day 3 of the trial.
Moreover, the mother filed an updated affidavit on 26 January 2015, some fourteen days before the trial commenced and yet her solicitor overlooked important facts such as:
a)she ceased operating a business in December 2014 from the front of her residence and commenced working part-time, some weeks before the trial, apparently making her more available to the children;
b)her current residence is to be sold and she must relocate in the near future; and
c)numerous other matters including fully answering the husband’s allegations which were facts in issue but were overlooked or simply ignored.
To compound the problem, the mother’s Counsel was only briefed the day before the trial and did not have a conference with her until the morning of the trial.
He had to be granted leave to lead evidence in chief on crucial issues such as the mother’s proposed residence in the future, her current occupation and her work hours and other relevant matters. This lead to time being wasted on matters that should have been detailed in the mother’s affidavit. She filed an Amended Financial Statement on Day 4 of the trial.
Background
The parents had a relatively short relationship being married on (omitted) 2002 and separated in either May or June 2005, (the difference is not significant for the purpose of the trial). They cohabitated therefore for just over 3 years.
As indicated earlier they have 2 children, X born (omitted) 2003 and Y born (omitted) 2005.
Save for some 18 or so months in 2003 and 2004, the father has always resided in Queensland. He now seeks an order for the children to live with him and his current family in Queensland.
The father is aged 34 years, remarried in 2011 and they have one child, A aged 23 months. His wife was pregnant and was expecting that child to be born in the first week of (omitted) 2015. His proposal is that in the very near future his daily household should be him, his current wife, their son A, the newborn child, along with X and Y.
The mother is also aged 34 years, she remarried in 2010 and they have two children, B who is aged 4 and C aged 21 months.
The parties sadly have a history of litigation in this jurisdiction commencing in 2009 with substantive orders having been made on
3 August 2009, 23 November 2009, 17 February 2010, 18 August 2010 and 13 December 2010.
These particular proceedings commenced with the father filing an application on 21 May 2014, wherein he seeks to have the children relocate to live with his family at (omitted), which I am told is close to (omitted), in Queensland.
The mother filed a response on 26 June 2014 seeking that the father’s application be dismissed with costs. She subsequently filed a further response on 26 January 2015 seeking the same above order plus a further order pursuant to s.118 of the Family Law Act 1975 (Cth)
(“the Act”), the latter of which she withdrew in the running. The mother has been the primary carer of the children since separation, a period of nearly ten years. The father has a list of complaints about the mother’s parenting capacity, including but not limited to:
a)her poor accommodation;
b)her lack of physical supervision;
c)her lack of supervision of and assistance with the children’s homework;
d)poor nutritional standards;
e)exposing the children to denigration of the father and the step mother;
f)ongoing emotional abuse;
g)having them care for their half-siblings;
h)ignoring the children’s wishes;
i)not promoting the father’s role; and
j)she does not encourage or facilitate regular telephone communication between the children and the father.
I should note that, in my assessment of the evidence, only (e), (i) and (j) were established to some degree and, having been identified, I believe they are unlikely to reoccur if the mother wants a long-term relationship with these children.
The mother is clearly annoyed to be in court yet again and blames the father for this litigation. She believes his complaints and concerns are based on unfounded speculation or total fiction.
Sadly what is common ground between them is that they do not like each other; more so the mother. With their new partners they have created two warring camps where the children’s best interests and welfare are not the priority, but defending themselves from what they perceive to be unfair criticism or being sidelined as a parent overwhelms their capacity to see the wood for the trees.
List of documents
Applicant father’s documents
The father relied on the following documents:
a)Initiating Application filed 21 My 2014;
b)Affidavit of Mr Howard sworn 19 May 2014 and filed 21 May 2014;
c)Financial Statement of Mr Howard sworn 10 August 2014 and filed 11 August 2014;
d)Affidavit of Mr Howard sworn and filed 23 January 2015 ;
e)Affidavit of Ms S sworn and filed 23 January 2015 ;
f)Affidavit of Ms H sworn and filed 23 January 2015 ;
g)Affidavit of Ms R sworn 22 January 2015 and filed 23 January 2015;
h)Family report by Mr V dated 29 October 2014; and
i)Applicant’s outline of case filed 5 February 2015.
Respondent mother’s documents
The mother relied on the following documents:
a)Amended Response filed 26 January 2015;
b)Affidavit of Ms Swann sworn 25 January 2015 and filed 26 January 2015;
c)Affidavit of Ms Swann sworn 25 June 2014 and filed 26 June 2014;
d)Amended Financial Statement sworn 12 February 2015;
e)Affidavit of Mr M sworn unknown date in February 2015
f)Family report by Mr V dated 29 October 2014; and
g)Respondent’s outline of case filed 5 February 2015.
The applicant’s evidence
Father
The father presented as a likable but unsophisticated. He believed much of what the children had told him and it appeared to me that he did not analyse or reflect on their comments. Further, he did not appear to fully understand how children of this age perceive their world and the effect that a very poor relationship between these parents has on the emotions, demeanour, behaviour and comments by the children.
His complaints were often very simple, for example, the children according to him said that they were not allowed to undertake extra-curricular activities in Melbourne. He said X wanted to do dance gymnastics and tennis and Y wanted to learn the guitar, play tennis, football and do surfing but the mother would not let them.
I asked the father what he did about it and he said initially that he told the children to speak to their mother. I would have preferred that he took the initiative and raised these topics directly with the mother without involving the children. I asked him about raising the issue with the mother and he said he sent her an email and she just ignored it. He did not appear to follow this up.
He said further that he has not be able to speak to the mother, “…for a while now…” and, “…we don’t make joint decisions…”
On schools, the father said that the first he knew that X had enrolled in her current secondary school was when he was told this by his daughter.
In evidence, he referred to, “…inadequate parenting…” by the mother. I asked him what he meant by this phrase and he said that adequate parenting was:
“…being there for your children. And being available for them to assist them with daily activities, such as conflict that arises during the home with other siblings. Being there to support them and provide – support them with homework, and also support them with the tools to be able to perform their homework where they can actually study in a quiet location without the distractions of three other children running around.”
He said that the children had not fully raised with Mr V the “inadequate parenting” or their complaints and wishes that they had told him, because the children would have known that anything discussed with Mr V would be revealed to the mother. He said they would have been scared to tell the expert their true feelings because the mother would find out.
This was raised by me when Mr V was called to give evidence and he said the children might well have been spooked by the comment that he would reveal his discussions with the children to the parents, but he does not believe that explains X’s ambivalence. He went on to say:
“…You see, the words don’t convey the affect. I know what she was like…I dictated this, you know, just after I saw them. I know what she was like, and how she was feeling, how stressed and worried she was about her parents – her parent’s conflict. I…just can’t get past that. I think we – there are all – all sorts of possible explanations. I just don’t think they are the most likely, and if we applied Occam’s razor, your Honour, the mostly likely explanation is the one that’s staring us in the face…”
I suggested to the father that perhaps the children were telling him things they thought he wanted to hear, rather than the truth. He rejected this outright saying that when they made these comments they had tears rolling down their face and they had sincere looks in their faces.
At paragraph 33 of his affidavit filed 23 January 2015, the father details why the children would be better off with him:
“ a. A better physical environment in which they could reside, allowing them to maximise their personal and educational opportunities;
b. Generally greater opportunities and support in relation to their social, recreational, psychological, emotional and educational development;
c. An environment in which they would feel comfortable in maintaining the positive relationship they have with their Mother and her family and would be encouraged to do so, which would further support their psychological and emotional stability;
d. An improved connection to all members of their extended families, including those in both Melbourne and Queensland, which would also assist in providing a sense of certainty and belonging that they do not currently feel as part of a separated family; and
e. Overall a better quality of life, opportunities, family experiences and parental support than they can be afforded in Melbourne.”
There is no doubt in my mind that the father clearly loves his children and that they love him. However he displayed little capacity to reflect upon and analyse, “…the messages…” that he was getting from the children. Moreover, it was obvious that because of the parents’ hostile attitudes and extremely poor communication, he could not properly raise these matters with the mother to clarify what was going on. To a large extent, this led to the current litigation.
It was interesting what Mr V said in Court about this:
“…What becomes apparent pretty quickly, your Honour, is why it is they get stuck. And usually the case is that they invest so much in their own beliefs that they become fixed, and then they are guilty of what I would describe as confirmation bias. They have a fixed set of beliefs and they go out seeking information to support that set of beliefs. It’s very common. We all do that, by the way. But I think you see it here. They’re thinking the worst about each other first. There is not a lot of, “Well, maybe I’m contributing something to this problem.”…I think it’s kind of clear in terms of the dynamics.”
Ms S
This lady presented well. She is a 29 year old (occupation omitted), mother of A and was expecting another child. I found most of her evidence helpful but it could not be said to be objective or always insightful, for example at paragraph 9 of her affidavit sworn and filed 23 January 2015 she said:
“It is clear that Ms Swann has a strong dislike for Mr Howard however the disregard she has displayed from him and his role in the Children’s lives over many years has been abhorrent. He has been met with repeated, unnecessary opposition in trying to exercise his right to have contact with the Children. It seems to stem from some sort of lasting bitterness or hatred from Ms Swann towards Mr Howard, which permeates the Children’s lives and experience.”
[Note: the reference to HIS right to contact.]
Unchallenged affidavit of Ms R
This deponent is a sister of the father. She says at paragraphs 9 and 10 the following:
“Mr Howard is a very loving, car and gentle father. His children’s wellbeing, health, safety and happiness are evident in all that he does and does not do for his children.
Ms S is also very loving and maternal towards X and Y. Her love for Mr Howard was evident in the way she so quickly took to his two children and has loved them unconditionally ever since. She took the responsibility for being a stepparent very seriously from the beginning and continues to maintain an exemplary effort.”
This is an affidavit of 42 paragraphs and yet does not corroborate any of the children’s alleged complaints to the father about the mother or problems with living in Melbourne however it did refer to the “wishes” of the children wanting to reside in Queensland.
Unchallenged affidavit of Ms H
This lady says she is a friend of the father and his current wife. She details at paragraph 10 and 11 the following:
“I can testify regarding Mr Howard’s parenting acumen, specifically his absolute dedication to the livelihood and happiness of all of his children. I have witnessed him consistently parent with patience, upliftment, wholesome judgment, maturity and love. Likewise, Ms S’s parenting style shares these attributes. Of note, I have never heard Mr Howard or Ms S speak unpleasantly or harmfully about Ms Swann in X or Y’s presence.
On many occasions I have observed X and Y whilst in the care of Mr Howard and Ms S. They are relaxed and happy and complete constructive activities. They are provided with support in their educational, physical, religious and social pursuits. I have never heard X or Y complain, dislike or not look forward to their time with Mr Howard and Ms S in Queensland.”
Although a relatively short affidavit, this lady also does not corroborate the father’s allegations about what the children have frequently said to him about their “wishes” of wanting to live with him in Queensland or the mother’s poor parenting.
The respondent’s evidence
Mother
The mother presented as a fairly simple lady and somewhat unworldly. She was a reluctant participant in these proceedings. It was her case that all the allegations made against her by the father and the step-mother had no substance.
She often appeared defensive and occasionally provided ambiguous and unhelpful answers. She clearly does not have the same very high standards of parenting that are embraced by the father. However in my view, it does not follow that she has failed to demonstrate an adequate standard of parenting.
Mr M
This gentleman is a clear supporter of his wife and has only been involved with the Howard children for less than 4 years, prior to the commencement of these proceedings.
In my view he could benefit from undertaking a parenting course to enable him to develop some insight into the emotional needs of the Howard children and the proper role of a step-parent, given the contents of the email he forwarded to the father dated 21 February 2014 which included some of the following comments:
“…There was a time when open and honest communication was deemed by both as fruitful and necessary, but the bickering and inability to compromise brought that to an end. Tonight, immediately, I make an exception…
…I make an exception to address the ludicrous, misplaced and downright insulting claims you’ve raised. Out of courtesy and concern for the children, I will address each of your points, though you should know a flat rejection would suffice…
…We walked them to school for years, a privilege you unfortunately did not share…
…Despite what you may think, we are in a better position to know of their current schooling and education than you are, being primary custody holders, and interacting with this on a daily basis…
…I find this absolutely ridiculous…
…I have told you repeatedly there is no denigration of you or your name in this house. I’ve done it one better – we avoid any mention of you or your circumstances. It’s none of our business and frankly, none of our interest…” (Note how the father is not mentioned in the household of the mother at all. What indirect message are these adults giving the children about their father).
“…We’re working toward a time when all past hurts are forgiven, all misunderstandings breached, and all compromises solved, but until such time, we try our hardest to avoid conflict. To us, in our experience, this has been accomplished by avoiding contact as much as possible…
…I will not even dignify this gross allegation with a response…
…we will not expound any extra effort based on unfounded claims, old grievances, and petty differences…”
I could not be satisfied that any witness told untruths. I was satisfied however they were all generally subjective and probably influenced by what Mr V calls “confirmation bias”.
The family report
As mentioned earlier in my judgment, this was undertaken by
Mr V and was dated 29 October 2014. He was cross examined by both Counsel and in my view, his conclusions which follow, were not compromised or eroded in any way:
“43. Compared to his sister, Y was generally much more concrete in his view of the world. His presentation comparatively, lacked the detail and elaboration. He was much more matter of fact, explaining that his parents separated because they fought. There was little in the way of detail. He showed a unique idiosyncratic perspective on the separation, talking about the impact on him and the problem with travel, that he didn’t like flying and that it was disruptive. He complained that his parents don’t like ach [sic] other and that his mother calls his father names, but when I pressed him on this he told me that he could remember his mother called his father a “pig” on a single occasion but that it was not a regular or frequent event.
44. Y explained that he understood that he [sic] reason for our meeting was to assist in decisions to be made about where he would reside. He thought that the Court would make the decision if his parents couldn't and that that would be based on where the Court thought the best place for him to live would be.
45. Y expressed a preference to reside in Queensland. He explained that his father has a better house, he thought that his father would be able to help him more with homework, that he would be able to simply go to the refrigerator and get food when he wanted, and that there would be more family around to visit. Y seemed philosophical about the prospect that the Court would decide that he would remain in Melbourne, and whilst he stated a preference to live with his father in Queensland, I was not left with the overwhelming impression that this was a desperate wish on his behalf but rather something that he would quite like to do. Much of what Y had to say about his unhappiness in Melbourne had to do with school, school work, the amount of homework that was required of him, the fact that his mother placed pressure on him to complete that homework, that Mr M was in support of her in this regard and that this was not something he particularly like to do. He spoke positively about his parents. He described both of them as loving, caring and fair. He also described his parents' respective partners in positive terms. He identifies strongly with his father and would obviously like to spend more time with his father. I was not left with the impression that was this not to occur that Y would be emotionally devastated, but that he would be disappointed. He spoke about family life as being uncomplicated and happy.
46. Psychological assessment revealed themes of conflict, winning and losing, and about parents unable to resolve their problems. The issue of schooling seemed to be very prominent in Y's presentation . He doesn't like school, would prefer to just be at home, finds school work difficult and is not particularly motivated. Significantly, when asked about general dependency needs, Y identified all of the adults in his life as being emotionally available to him, with most of his primary dependency needs being met by his parents.
CONCLUSIONS:
47. Matters involving relocation are complex at best. Inevitably, from both parents’ perspective, there is merit to their position. Mr & Mr [sic] seemed genuine in their motivation to have the children live with them and provide to them a quality of life, a lifestyle, opportunities, family experiences ad [sic] parental support that they believe are lacking. I am certain given my observation of the children in the company of their father and Ms S, that they have an excellent relationship, and I have no doubt as to the integrity and the motivation of Mr Howard to do what is right for his children.
48. Mr Howard & Ms S were equally resolute that family life for them was happy, that the children were content, that the children are in a happy, stable environment, have friends, go to school, are involved in extensive extra curricular activity, adding that the perception of family life as presented to them from the children is not only inaccurate but self serving on behalf of Mr Howard & Ms S. Ms S in particular described it as ridiculous and crazy to suggest that the children were ignored, not fed, not looked after, burdened with the responsibility of caring for their younger siblings and that this was excessive. Her parenting style is clearly different to that of Mr Howard, but she feels that she expects a reasonable level of cooperation from the children, that it is not unreasonable for her to expect that the older children assist with the younger ones, and that the children are old enough to get themselves to and from school. To a large extent this seems to me to fall within the realm of both normal and different expectations.
49. X and Y are clearly both stressed by the issue of relocation. X in particular is highly ambivalent. She is happy at school, she has friends and she is looking forward to secondary school. She loves her little sister C and particularly enjoys doting on her. She takes a pseudo parental like stance and involvement, but this is with the assistance and support of her mother. I do not consider this to be excessive or burdensome.
50. Y would like to live in Queensland. He sees that there are certain physical and material benefits and has a somewhat idealized view of what life will be like there. School is a source of particular difficulty for Y. He is not motivated and not interested, and perceives his mother and Mr M’s expectations as burdensome and onerous. He believes that life will be easier in Queensland because his father will be more supportive and more understanding; this may or may not be the case.
51. Significantly, one of the issues that was in agreement amongst all family members was that the relationship between Mr Howard and Ms Swann is a difficult one. X in particular was particularly articulate about the unspoken communications conveyed by her parents, the clear message of restraint, the negativity, the hostility, and the anger that they feel towards each other that is deposited in her. Y spoke less about this and generally he was more concrete. I suspect that for both children, they have a clear understanding about the message of restraint and that they are very much triangulated.
52. In some regards this matter is paradoxically simple. If the children were to move to Queensland I am certain that their development would progress well, that they would be happy, they would develop an excellent relationship with Mr Howard & Ms S, that they would quickly adapt and that they would maintain a good relationship with their mother, Mr M and their siblings. It is also my view that the same will continue to be true if they remain in Melbourne, that is, that they will continue to have a good relationship with Mr Howard & Ms S and enjoy the time spent with them. However they also clearly have a sense of belonging, they feel connected, they are a part of the family and quite rightfully, as identified by Ms Swann, there are no real issues of risk, mental health problems, alcohol, violence or anything to suggest that the children's best interests will be served if they are removed, let alone that the children's development or emotional welfare is compromised.
53. As a rule, when trying to establish effective parenting plans, the aim is to minimize loss, maximize time with both parents and to do so in a manner that is developmentally sensitive to each child’s age and stage. The problem with relocation, is that fundamentally, it compromises these basic tenants. From my perspective, the children appear to be doing well, are happy, they are not excessively burdened or troubled, they have an excellent relationship with both parents and I expect that this will continue. The problem is not the children or their level of care, but rather the level of conflict between their parents, the poor communication and the deep chasm that the children feel as a consequence.
54. Obviously a testing of evidence and new information may change these recommendations significantly. Based on the information available, it is difficult to see how a change in the living arrangements would actually be to the benefit of the children; I have no doubt that the children would thrive and do equally well were they to move to Queensland to live with their father, but it is difficult to conclude that they would do better.”
I will be commenting on the evidence of the expert further, particularly in relation to the oral evidence that Mr V gave this court. The parties should note that Mr V also had a discussion with Ms K, a psychologist who counselled the children in Queensland and he said as follows:
“…I think it’s fair to say, by way of summary, that what she had to say really fit very comfortably with what I have to say.”
“Right?”
“That is, that the children were happy, well adjusted. She thought they were a credit to their parents, that the big issue was their parents’ conflict, that she gave feedback to both Mr Howard and Ms Swann separately about her concerns, that she thought they were generally – the children that is – were generally confident and capable. They related well with her. They were friendly and engaged in the session. They were chatty and open. That they worried – they both expressed worry about their parents and their parents’ conflict, that it was upsetting for them to have to choose about which parent to be, that they didn’t wish to upset either parent, that the feedback by Ms K to Mr Howard and to
Ms Swann was that they needed to keep their children out the conflict, not speak negatively to the children about each other. She told me that she tried to give some educative input to highlight the stress caused to children by this kind of conflict. She told me that she encouraged the parents separately to refrain from denigrating each other in the presence of the children and to – as best as possible, to be amicable. She told me that after she spoke to Mr Howard and Ms Swann, that the children reported to her that things were better, that their parents had reassured them that, no matter what the decision, that they would respect that decision and respect their wishes, and that both parents had reassured them that it would be okay no matter what the outcome. She also told me that she had no sense from the children’s presentation that they were neglected or maltreated in any way by their mother or father, and that the children impressed in a very positive manner…”
Relevant legal principles
Section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:
a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child;
b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
a)the child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;
d)parents should agree about the future parenting of their child; and
e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the child’s best interests.
In making any parenting order, the court must to the extent it is possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.
If the court is satisfied that the parents are to have, pursuant to s.61DA(1) of the Act, equal shared parental responsibility, then subject to s.65DAA(6) of the Act, it must turn to ss.65DAA(1) and (5) of the Act to consider equal time, and if that is not appropriate in all the circumstances then ss. 65DAA(2), (3), (4) and (5) of the Act requires the consideration of substantial and significant time.
As stated by the learned Judge in Caravaggio & Caravaggio [2011] FamCA 254 at paragraph 35:
“Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests. Goode & Goode (2006) FLC 93-286.”
Section 60CC factors
The two primary considerations are set out in s.60CC(2) of the Act and they are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
A recent amendment s. 60CC(2A) of the Act, provides that the court is to give greater weight to s.60CC(2)(b).
They will be considered after the relevant matters in s.60CC(3) are looked at (see Collu & Rinaldo [2010] FamCAFC 53).
Additional considerations are:
To the extent that they are relevant, the additional considerations in sub-section 60CC(3) of the Act are:
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 applicant father when giving evidence before the Court and in his affidavit sworn or affirmed 19 May 2014 from paragraphs 80 to 86 (inclusive) said the children have both expressed a clear wish to live with him in Queensland. In his further affidavit sworn or affirmed 23 January 2015 he says at paragraph 71 the following:
“…the impact of the current circumstances on the Children…the clarity and frequency of both of their freely expressed wishes to relocate to Queensland assisted my wife and I in deciding to bring this Application to try and provide the Children with a better circumstance, opportunities and way of life…”
I also note paragraph 28 of the affidavit of Ms R sworn or affirmed on 22 January 2015 and paragraphs 21, 22, 24 and 26 of the affidavit of Ms S sworn 23 January 2015.
It is very important to note that even if the children express this wish to live in Queensland with the father, that is not the end of the matter; the difficult task I have is what weight I give the views and wishes expressed by the children?
I am assisted by the helpful guidelines provided by the decision of R & R: Children’s Wishes (2000) FLC 93-000 (“R & R”) where the Full Court of the Family Court of Australia investigated this topic and made certain comments. Although s.60CC(3)(a) of the Act is not a word for word copy of its predecessor, the former s.68F(2)(a), in my view, the comments of the Full Court in R & R are just as relevant and helpful today as they were when they were first enunciated.
In that case, a significant issue was the wishes of two boys aged 12 and 10 and the time trial and what weight they should have been given. The head note in that case details the following useful guidelines as the views or wishes of children and how the court can go about assessing them:
“…The Full Court in Harrison and Woollard (1995) 18 Fam LR 788, (cited by her Honour as H v W (1995) FLC 92-598) stressed the importance of trial judges giving proper weight to children's wishes but did not say that they should not be departed from. Appropriate and careful consideration must be given to children’s wishes. They should not be simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so…
…Her Honour was not required to determine that the wishes of the children were unsound, founded on improper considerations or influenced by others in order to make orders contrary to their wishes. While those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child's wishes. There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case. It is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests…”
In this case I have the benefit of a family report that was subject to considerable testing in cross examination. The report of Mr V dated 29 October 2014 says as to X on page 15 at paragraph 40 the following:
“…X told me that she understood clearly that the reason for our meeting was about the possibility of a relocation, but also added that neither of her parents have spoken with her about it, even though she can tell it is constantly on their mind. From her perspective it is difficult. She can't decide and it's difficult to know what to do. She also told me that whenever she thought about the issue it caused her upset and that she was deeply ambivalent and uncertain about what to do…”
At paragraph 42, page 16 of the report the author says the following:
“…I was also not left with the impression from X that the wish to move to Queensland was a burning desire. Her recollection was that her brother Y asked if they could live in Queensland and that someone had told her that she and Y could not be separated. X told me that no matter what the decision, if she goes or stays, that she will upset one of her parents …”
When cross examined by Counsel for the father, Mr V turned to the notes he made when interviewing the children and said that he noted he asked her, “…How come you’re coming to see me?...”, which X answered as follows:
“…I don’t really know. I think it’s about the court or something. They’re not allowed to tell us but I think it’s about who we’re going to go and live with. It’s so hard. It’s really upsetting. I can’t decide. I don’t know what to do. I’ve been thinking about it all the time. When I do I just get upset. I feel really unsure. I don’t know what to do. In Queensland, all my family and my dad are up there, but in Melbourne all my friends, and my mum and her family are down here. I think they’re all important to me. Living with dad, it’s lots of fun, and there’s lots of fun. I get to see my cousins. With mum it’s fun too. We go to school, I go to the pool and nana’s a lot…”
Mr V went on to say:
“…What emerges is this little girl who’s caught in between her parents, understanding they don’t talk, they’re in conflict, that she feels she’s the lynchpin, and she’s going to be stressed and anxious by that, knowing that she will upset one of her parents no matter what she chooses…”
The evidence of Mr V is that X did not have a clear, well-stated view about remaining living with her mother in Victoria or living with her father in Queensland, She is described as paragraph 49 of the report as being “….highly ambivalent” about the issue of relocation.
Whereas in relation to Y, the author of the family report set out the following at paragraph 45, page 17:
“Y expressed a preference to reside in Queensland. He explained that his father has a better house, he thought that his father would be able to help him more with homework, that he would be able to simply go to the refrigerator and get food when he wanted, and that there would be more family around to visit. Y seemed philosophical about the prospect that the Court would decide that he would remain in Melbourne, and whilst he stated a preference to live with his father in Queensland, I was not left with the overwhelming impression that this was a desperate wish on his behalf but rather something that he would quite like to do. Much of what Y had to say about his unhappiness in Melbourne had to do with school, school work, the amount of homework that was required of him, the fact that his mother placed pressure on him to complete that homework, that Mr M was in support of her in this regard and that this was not something he particularly like to do…”
When one analyses what Mr V is saying about Y’s views, it is my opinion that he does not interpret them as being formed on the basis of a mature assessment of the benefits and detriments of living in Queensland, when compared to the benefits and detriments of living in Melbourne. I note that there is a reference to Y living in a better house with the father, being able to go to the refrigerator to get food when he wanted and that there would be more family around to visit, along with the fact that the father could help with him with the homework. These do not seem very significant factors upon which to base a view that it is in his best interests to reside with his father in Queensland.
It was the father’s case that over a significant period of time the children have both expressed wishes to remain with him in Queensland and that these wished should be accepted and acted on. The children may well have said this to him, but it does not follow that their wishes or views can be fully relied upon. They may have made these comments at the conclusion of a wonderful holiday and they want that to continue or they are telling the father what they think he wants to hear. I put no weight on these wishes in the absence of expert analysis supporting the allegation.
Counsel for the mother put this topic to Mr V in cross-examination as follows:
MR BURNS: And they know, clearly, that their parents – both their parents wish to have them living with them; is that correct?‑‑‑Yes.
Yes. But on the other hand, is it fair to say they don’t want to upset either parent?‑‑‑Probably.
Yes. So it is probable, is it not, that the children, when they see their father, will be saying what their father wants to hear?
HIS HONOUR: Probable or possible?
‑‑‑See, I think it’s – your, your Honour, this is a really interesting dynamic, because what you have is you have parents who are very split and very divided, and what you have with the children are – are – are mixed, split, and divided feelings. So, yes, I am certain that they tell their parents different things. To say that their child – the child feels that in its – in totality, I think, is to overstate their own beliefs, because I think it’s likely that the children do say things that are in accordance with how their father feels. It’s not that he’s necessarily influencing them, albeit that, you know, there’s probably lots of social psychology evidence to suggest that people influence others extensively, non-verbally, all the time. But just because they say they want to live in Queensland doesn’t mean that they don’t want to live in Melbourne. It’s just a question. And I think it is more likely that they will talk with their father about matters that are in accordance with how he feels.
HIS HONOUR: Queensland topics?‑‑‑I mean, it’s normal. Yes. It’s – it’s – it’s not – it’s not intended as a criticism of – of anyone. It’s just – I think to – to over-invest in what children say, and to not understand the context, is the very fodder of high – of people who are in high conflict. “But the children have said this.” Well, yes, look at what the children are saying elsewhere, and how they’re acting, and how others, who are involved in the children’s lives, perceive them.
The psychologist, Mr V, has read all the relevant material, seen the parties, seen the children and made all proper enquiries. He has the expertise to assist me in determining what weight I put on the children’s wishes or views. An example of this was when Mr V was being cross-examined by the Father’s Counsel and said, “You see, the words don’t convey the affect. I know what she was like. I dictated this just after I saw them. I know what she was like and how she was feeling…”
In all the circumstances, I accept the evidence of Mr V and conclude that I should put little weight on the children’s views.
(b) the nature of the relationship of the child with:
each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
In my view, the evidence is clear that both the children’s parents and the step-parents have an excellent relationship with each of the children. At page 8, paragraph 22, Mr V comments on applicant father’s family as follows:
“Mr Howard & Ms S were seen in the company of the children and this was unequivocally positive. X & Y clearly love their father and obviously have an excellent reiationship with Ms S. They engaged easily, comfortably and confidently. They embraced their father warmly and maintained a lot of physical contact with him. X in particular lounged upon her father, lay on him, hugged and kissed him and was obviously very much relaxed. Y too enjoyed his father's attention and affection, enjoyed playing cooperatively with Ms S and both children related warmly and positively; communication was at a very high level; there was easy reciprocal interaction; Mr Howard & Ms S engaged easily and played cooperatively; there was a real sense of cohesion between them.”
In relation to the respondent mother and Mr M a similar observation is made at paragraph 38, page 14 of the report as follows:
“Ms Swann were seen in the company of the children with her husband and younger siblings. This was obviously a different meeting to that with Mr Howard & Ms S because of the younger children and the level to which their needs tended to dominate the horizon. It is noteworthy however, that X in particular was particularly intent on playing with her younger sister C, and that not only did she entertain C but enjoyed feeding her and looking after her. This was all with the presence and supervision of Ms Swann, and it seemed to me that X enjoyed doting on her younger sister and this was anything other than a chore, burden or responsibility. Y played comfortably and cooperatively with Mr M, playing chess whilst involving his younger brother B who was quite a disruptive influence, but neither Mr M nor Y seemed particularly fussed. My observation of the family was it was busy and noisy, with B shuttling between his parents, C being attended to by Ms Swann and X whilst Y and Mr M tried to maintain focus on a board game; In every regard, this seemed quite normal.”
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
In my view the evidence is that the applicant father has taken every opportunity to be involved in communicating, spending time with and involved in the long term issues in relation to both children. However it appears to me that given the parties poor communication and the fact that they have not actually spoken to each other for around 5 years has meant that in relation to some issues, the opportunity to be fully involved did not present itself. The mother has not consulted with the father fully on some issues and monopolised the decision-making on occasions. A good example of this was in relation to which secondary school X should attend. She was wrong to not fully involve the father in this decision and have her partner sign a document for the school as a “guardian”, when that was clearly a matter for both parents.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
I am satisfied that the mother has maintained the children to the best of her financial circumstances, which from time to time appears to have been stretched. The father has been financially generous to the children and has not only maintained them to the extent that is necessary under the Child Support legislation but has gone beyond that and provided them with financial security and support. It is impressive that over the years he has solely paid for the airfares to see his children; it is indicative of his dedication to their welfare and the clear affection and love he holds for them.
(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;
This is a major issue in this case. At paragraph 40, page 15 of the family report the author comments on X and says the following:
“…From X's perspective, the physical distance of her father's absence in no way minimizes his importance. She told me that both sides of the family are equally important to her and that she expected that his would continue regardless. She told me that living with her father was lots of fun, there is lots of playing and she gets to see her cousins all the time, whereas life with her mother is more about business and going to school and doing the normal things.”
He goes on to say at page 16, paragraph 42 the following:
“…it was also clear however that X is very much “used” to life in Melbourne, that she has good peer relationships, she love her mother, had a good sense of connection to her mother’s family, enjoys looking after her younger siblings, does not feel burdened and sees herself as doing well…”
At page 45 of the same report the author comments on Y and says as follows:
“…He spoke positively about his parents. He described both of them as loving, caring and fair. He also described his parents' respective partners in positive terms. He identifies strongly with his father and would obviously like to spend more time with his father. I was not left with the impression that was this not to occur that Y would be emotionally devastated, but that he would be disappointed. He spoke about family life as being uncomplicated and happy.”
The children appear to have adapted to, and work with the fact that the father lives in Queensland whilst they reside with their mother in Victoria. It is clear that notwithstanding that adaption, they would like to see more of their father and enjoy his company and that of his family. It appears that the current status quo is something that has many positives for the children. I note Ms K describes the children as happy and well-adjusted.
(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;
This is not an issue for this trial as both parties have agreed to meet the equal cost of any airfares for the children and it seems to me that they have the resources to ensure that the children will continue to enjoy frequent and regular periods with both parents and their families, as they have done in the past.
(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; and
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
These sub-headings (f) and (i) are very important topics in this case. I have included them together because they overlap to some degree in this case based on its own unusual facts in relation to poor communication. The parents have not spoken to each other for around five years, and often communicate in a very discourteous and assertive style which has meant that these children have had to put up with their parents and step-parents having a dysfunctional relationship which in turn must have had a negative effect on their emotional wellbeing.
Under cross examination of the father’s Counsel, Mr V talked about Ms K, the psychologist in Queensland who is counselling the children with whom he had a conversation about these parents and this case. Although I have referred to this earlier, her comments are very relevant to these sub-headings. He said:
“…the children were happy, well adjusted. She thought they were a credit to their parents, that the big issue was their parents’ conflict, that she gave feedback to both Mr Howard and Ms Swann separately about her concerns, that she thought they were generally – the children that is – were generally confident and capable. They related well with her. They were friendly and engaged in the session. They were chatty and open. That they worried – they both expressed worry about their parents and their parents’ conflict, that it was upsetting for them to have to choose about which parent to be, that they didn’t wish to upset either parent, that the feedback by Ms K to Mr Howard and to Ms Swann was that they needed to keep their children out the conflict, not speak negatively to the children about each other…
…She told me that she encouraged the parents separately to refrain from denigrating each other in the presence of the children and to – as best as possible, to be amicable…”
If the parents and their partners get nothing else from this court case, they must see the report of Mr V as a current, frozen moment in time that puts a very bright spotlight on their poor, aggressive, negative relationship. They must work very hard in the future to ensure that they communicate verbally in a very civilised and amicable way for the benefit of these children. It is clear that if they continue along the current path that these children will be emotionally under significant negative pressure in their relationship with both parents and step-parents and this cannot be good for the children’s future emotional wellbeing.
The father was concerned about the children’s intellectual development in the care of the mother, given it was common ground the children were having some difficulties at school with their reading, literacy and mathematics.
The mother was substantially cross-examined on this topic and whilst it could be said she should have been more proactive, she is working with the school to overcome these difficulties. But she must inform the father about what is being done in this area so that he can work with the children when they are in his care.
(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;
Not relevant.
(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;
Not relevant.
(j) any family violence involving the child or a member of the child's family;
Not relevant.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Not relevant.
(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;
These parties have been to court too often. In my opinion it is clearly preferable that they should do everything reasonable to avoid further proceedings. Many of my orders are by consent but I will attempt to draft all orders to avoid any further litigation, however, this really is in the hands of the parties. If they have ongoing problems then they must deal with them through counselling and mediation. They must see this court as a last resort.
(m) any other fact or circumstance that the court thinks is relevant.
The most significant issue in this case has been highlighted in the evidence of Mr V, both in his report and when being cross-examined at the Court hearing. He says at page 53 of his report dated 29 October 2014:
The problem is not the children or their level of care, but rather the level of conflict between their parents, the poor communication and the deep chasm that the children feel as a consequence.
I will make an order for the parties to attend counselling and, if they get nothing else from this Court case, they must appreciate their communication has to improve and their disrespect for each other has to dissolve.
In my view, many of the complaints by the father about the mother’s parenting have arisen because of their poor communication. In a normal circumstance of where a child complains to one parent about living with the other, that parent would then approach the other to discuss and air the child’s complaint so it could either be seen to be specious or have some substance and then cured. The parties lack of trust, dislike for each other and poor communication has acted like compost for weeds to grow in a garden that ordinarily would be thriving.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:
“The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship””.
It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:
“…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.”
At paragraph 170, the Full Court said as follows:
“Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”
It then went on to say that there are three possible interpretations of section 60CC(2)(a) of the Act and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.
The ‘present relationship approach’ was defined by the court in paragraph 118 as follows:
“(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).”
The ‘prospective approach’, which I will apply in this case, was also set out at paragraph 118 as follows:
“(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”
In my opinion the children currently enjoy a meaningful relationship with both of their parents, notwithstanding the geographical barrier. It is also my view that the orders I make will maintain that meaningful relationship.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Although a serious problem in the past during cohabitation prior to separation, there are no allegations that this is a current issue for these parents.
The authorities
In Caravaggio & Caravaggio [2011] FamCA 254 the learned Judge said as follows:
“36. Since the 2006 amendments to Part VII there have been a number of cases in which the Full Court of the Family Court has discussed the approach to relocation cases. In particular, Taylor & Barker (2007) FLC 93-345, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, McCall & Clark (2009) FLC 93-405 and Hepburn & Noble (2010) FLC 93-438.
37. In Taylor & Barker their Honours in the majority (Bryant CJ and Finn J) referred to Goode & Goode where the Full Court set out the pathway to be followed in parenting cases. The majority specifically adopted the now oft quoted par 65. In the context of the appellant’s assertion that the trial Judge had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue instead of following the course referred to in Goode & Goode, the majority in Taylor & Barker held there was no substance to this ground of appeal. They held at par 60:
In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.
38. In McCall & Clark the Full Court discussed and incorporated the matters of principle from Sealey & Archer. Relevantly their Honours said:
60. In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
39. And at pars 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
No doubt frequently, as in the instant case, the non-relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.
In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
40. Thus relocation cases are to be approached as follows:
they are parenting cases to be determined in accordance with Part VII;
the child’s best interests is the paramount but not the only consideration;
a relocation proposal should be considered and evaluated in the context of making necessary findings in relation to the relevant s 60CC matters and, where relevant, s 65DAA;
in its application of s 65DAA, and particularly s 65DAA(5), it is appropriate to canvass the advantages and disadvantages of a proposal to re-locate the child.
41. It is still the case that neither party bears an onus to establish that a proposed change or the continuation of an existing arrangement will best promote the best interests of a child. AMS v AIF (1999) 199 CLR 160. Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests. (U & U (2002) FLC 93-112). As with any parenting case subject to affording the parties procedural fairness, the Court is not restricted to their proposals.
42. More recently, the High Court published MRR v GR (2010) 240 CLR 461. This relocation case related to a parent’s proposal to leave Mt Isa with the parties’ child and live permanently in Sydney. The child’s other parent proposed to remain in Mt Isa and applied for equal time orders. At par 9 of their reasons the High Court said:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
43. At par 13 the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
44. And at par 15 the High Court explained:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
Section 65DAA
The parents want to enter into a consent order for equal shared parental responsibility. Given their non-existent verbal communication, I was very concerned about this topic. However, they may have learnt much from Mr V’s report and this litigation. They deserve another chance to co-parent.
In any event, I note the terms of s.65DAA(6). The parents tendered proposed orders, neither of which sought equal time, which I assume related to the fact that in the foreseeable future, the father will reside in Queensland and the mother in Victoria. Equal time is clearly not reasonably practicable. (see MRR v GR (2010) 263 ALR 368).
Conclusion
The children have been in the primary care of the mother since separation. A major issue in this case was the different parenting styles of each of the families. An example of this is detailed below.
It was the evidence of the mother that during the working (school) week, the children “look after themselves…” in the morning (see also the email of Mr M dated 21 February 2014).
It appears that the alarm in the mother’s mobile telephone awakens the children, they then dress themselves and get themselves ready for school, make their lunch and choose what to eat for both their breakfast and lunch. The mother said in cross-examination “..I have two other children that need to be looked after, but I am there.” According to the above-mentioned email, this has been the practice of the children for the last 5 years.
The following was put to her in cross-examination, “..Why should a 4 or 5 year old – do you think it is in their best interests – for them to be responsible for getting up in the morning, getting out of their pjs, into their school uniform, brushing their teeth, brushing their hair, sorting out what food to have for breakfast and packing their own lunches. Do you think that is appropriate?” Answer by the wife, “I have a 4 year old right now that is quite capable of dressing himself and doing that.”
This scenario was put to Mr V, who said:
“I guess it depends on, your Honour, how you measure parenting capacity, you know. You know, one might argue, and I’m not arguing it, but one might argue that in fact she is encouraging independence, self-sufficiency, encouraging the children to act in a responsible manner, giving them a reasonable amount of rope, maybe a little more than some parents would but that’s her parenting style. ….. The thing I’m the most comfortable saying is that, based on how the children present, the children seem to present as though they are psychologically healthy.”
The mother went on to say that she is now working part-time and that in the morning, although the children still get themselves ready, she drives X to school and then on the way back drops B at kinder and Y at his school at quarter to 9.
It is clear that in the father’s household they will be more involved in the children’s day-to-day life and undertaking matters for their welfare, including dressing and food preparation.
However, this case is not simply who is the better parent, but is also about a long-standing status quo that ultimately finds: “…the children were happy, well-adjusted. She thought they were a credit to their parents…the children were generally confident and capable. They related well with her. They were friendly and engaged in the session. They were chatty and open…” [Mr V commenting on the children’s psychologist Ms K’s comments to him.]
Some of the other facts that are significant are:
a)the father and his wife were about to have or now have another child, and his availability and that of his wife in those circumstances to fully care for X and Y full time was uncertain, particularly as the father said he had flexible working hours but his business partner was not on affidavit or called to give evidence to confirm this;
b)X has started her secondary education with (omitted) School at (omitted). She appears to have transitioned to and settled in to this school with little difficulty. The father said she was in a literacy support group and the school was aware of her numeracy problem. I was concerned about changing her school environment, particularly when the father did not provide the Court with all the relevant details of his proposed schools for the children in Queensland;
c)in an answer to a question about Y’s school, the father said, “…I think (omitted)’s has been pretty good. Like, they are trying to work with him. I think they’ve got a reading recovery area, which they’re trying to bring him up.”
d)The mother and her husband are moving from their accommodation at the rear of the shop in (omitted). She agreed to an Order to this effect, which I will make by consent;
e)The father alleged that his parents who live approximately 800 metres from him are available and willing to assist in the care of the children should they live with him. I put little weight on this as neither were on affidavit to confirm what he alleged; and
f)
The mother’s employment has changed. She says she will work
14 – 20 hours per week and it appears she can be more available to the children in the future than in the past.
Mr V, in his report, under the heading of “Conclusions” says the following from paragraph 49:
49. X and Y are clearly both stressed by the issue of relocation. X in particular is highly ambivalent. She is happy at school, she has friends and she is looking forward to secondary school. She loves her little sister C and particularly enjoys doting on her. She takes a pseudo parental like stance and involvement, but this is with the assistance and support of her mother. I do not consider this to be excessive or burdensome. [My emphasis]
50. Y would like to live in Queensland. He sees that there are certain physical and material benefits and has a somewhat idealized view of what life will be like there. School is a source of particular difficulty for Y. He is not motivated and not interested, and perceives his mother and Mr M’s expectations as burdensome and onerous. He believes that life will be easier in Queensland because his father will be more supportive and more understanding; this may or may not be the case. [My emphasis]
51. Significantly, one of the issues that was in agreement amongst all family members was that the relationship between Mr Howard and Ms Swann is a difficult one. X in particular was particularly articulate about the unspoken communications conveyed by her parents, the clear message of restraint, the negativity, the hostility, and the anger that they feel towards each other that is deposited in her. Y spoke less about this and generally he was more concrete. I suspect that for both children, they have a clear understanding about the message of restraint and that they are very much triangulated.
52. In some regards this matter is paradoxically simple. If the children were to move to Queensland I am certain that their development would progress well, that they would be happy, they would develop an excellent relationship with Mr Howard & Ms S, that they would quickly adapt and that they would maintain a good relationship with their mother, Mr M and their siblings. It is also my view that the same will continue to be true if they remain in Melbourne, that is, that they will continue to have a good relationship with Mr Howard & Ms S and enjoy the time spent with them. However they also clearly have a sense of belonging, they feel connected, they are a part of the family and quite rightfully, as identified by Ms Swann, there are no real issues of risk, mental health problems, alcohol, violence or anything to suggest that the children's best interests will be served if they are removed, let alone that the children's development or emotional welfare is compromised. [My emphasis]
53. As a rule, when trying to establish effective parenting plans, the aim is to minimize loss, maximize time with both parents and to do so in a manner that is developmentally sensitive to each child’s age and stage. The problem with relocation, is that fundamentally, it compromises these basic tenants. From my perspective, the children appear to be doing well, are happy, they are not excessively burdened or troubled, they have an excellent relationship with both parents and I expect that this will continue. The problem is not the children or their level of care, but rather the level of conflict between their parents, the poor communication and the deep chasm that the children feel as a consequence. [My emphasis]
54. Obviously a testing of evidence and new information may change these recommendations significantly. Based on the information available, it is difficult to see how a change in the living arrangements would actually be to the benefit of the children; I have no doubt that the children would thrive and do equally well were they to move to Queensland to live with their father, but it is difficult to conclude that they would do better.” [My emphasis]
We spent many days testing the evidence and sometimes obtained new information but the recommendations, comments and views of Mr V in his 19 page report were not eroded. In fact, under cross-examination, Mr V said:
“…what I’m comfortable saying is that based on what I’ve observed of the children, notwithstanding the history as it might be, these two seem to be doing well in relation to both of their parents. And if we look at healthy development and look at healthy development along the parameters of biological, psychological and social, how are they doing? They seem to be doing well. Ms K, who saw them at the behest of their father, said that they seem to be doing well, they seems like nice kids. The school does not seem to have major problems with them, albeit that there is some agreement that at least Y is not that enthusiastic about school. But even then it’s hardly Robinson Crusoe in that regard for a boy of his age to not necessarily be enthusiastic. …It may be absolutely true. What I’m comfortable in saying is, it does appear that notwithstanding everything that has been put, that the children seem to be doing well, and that, to me, the bigger issue is their parents’ conflict “ ‑ ‑ ‑
Well ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ “and their relationship with each other. …this case is garden variety high conflict.”
His Honour: “…. And the thing that jumps out at me and it’s only early with the mother’s evidence, is they have two different parenting styles. And this seems to encourage the conflict, in one sense, because they’re looking at it through two different sets of eyes of how to parent in their own environment?‑‑‑“I would take that a step further. Not only is that correct but they’re then highly critical of the other parent. See, I would argue are they parenting at a standard that is good enough ‑ ‑ ‑
“…. not whether they are parenting to a standard or behaving in a manner that is acceptable to each of them about the other, because they fall well short of that. …..I would be much more concerned about the denigration, manipulation, all of that stuff, than whether they’re getting themselves up for bed or not, you know – up for school or not. It’s just – I just think they’re holding the wrong end of the stick, frankly.”
I accept the recommendations, comments and views of Mr V when giving evidence and in the Family Report dated 29 October 2014. It is my finding that the long-standing and current situation of the mother being the primary carer is good enough to promote the best interests of the children.
Whilst it is clearly not ideal from the father’s point of view, it is adequate parenting in all the circumstances and the parties and their partners must address the poor communication, distrust and conflict which is at the heart of this case.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Associate:
Date: 31 July 2015
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Consent
-
Jurisdiction
0
9
2