Illidge & Norton
[2008] FMCAfam 1255
•21 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ILLIDGE & NORTON | [2008] FMCAfam 1255 |
| FAMILY LAW – Parenting – relocation. |
| Family Law Act 1975, Part VII, ss.60B, 60B (1), (2), 60CA, 60CC, 60CC (1), (3)(c), (e) – (k), 60CC (4), 61DA, 61DAA, 61DAA (1), (2), (5) High Court of Australia, Practice Direction No 1 of 2000: Written Submissions and Authorities: All Full Court Matters Except Removal Applications or Leave or Special Leave Applications |
| A v A: Relocation Approach (2000) FLC ¶93-035 M. Aronson, B. Dyer, M. Groves, Judicial Review of Administrative Action (Third Edition) (Sydney: Thomson – Lawbook Co., 2004) |
| Applicant: | MS ILLIDGE |
| Respondent: | MR NORTON |
| File Number: | CAC 123 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 19 & 20 June 2008 |
| Date of Last Submission: | 24 July 2008 |
| Delivered at: | Canberra |
| Delivered on: | 21 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nash |
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Counsel for the Respondent: | Mr Thomas |
| Solicitors for the Respondent: | Gordon Naylor & Associates |
ORDERS
All previous Orders in relation to the children, [C] born in 1995 and [D] born in 1996 be discharged.
The Mother and Father have equal shared parental responsibility for the children.
The children live with the Mother.
The Mother be at liberty to relocate with the children from Canberra to Sydney.
The children spend time and communicate with the Father as follows:-
(a)During New South Wales school terms each alternate weekend from 6:00pm on Friday evening until 4:00pm on Sunday;
(b)For the first half of the December 2008/January 2009 New South Wales school holiday period, and each alternate year thereafter, and for the second half of the December 2009/January 2010 school holiday period, and each alternate year thereafter;
(c)For the second half of all school holiday periods (excluding the December/January period) during the 2008 New South Wales school holiday periods, and each alternate year thereafter, and for the first half of all school holiday periods (excluding the December/January period) during the 2009 New South Wales school holiday periods, and each alternate year thereafter;
(d)By telephone:
(i)With the call to be initiated by the Father between 5:30pm and 6:00pm each Sunday evening when the children are not otherwise in his care; and
(ii)With the call to be initiated by the Father between 7:00pm and 7:30pm each Wednesday evening when the children are not otherwise in his care.
(iii)Either or both of the telephone calls to occur pursuant to paragraph 5(d) above may occur by way of webcam.
(e)Any additional or alternative times as agreed in writing between the parties.
For the purposes of Order 5 above and in the absence of any written agreement between the parties to the contrary the following Orders apply:
(a)The first half of all school holidays is deemed to commence at 6:00pm on the last day of school;
(b)The second half of the December/January school holidays is deemed to commence at 6:00pm on the Friday in January that falls approximately three weeks after the last day of the school term of the previous year or the middle Wednesday if the relevant school holiday period is for an odd number of weeks; and
(c)The second half of all other school holidays is deemed to commence at 6:00pm on the middle Friday of school holidays or the middle Wednesday if the relevant school holiday period is for an odd number of weeks.
When the children change from one parent’s care to the other’s in accordance with Order 5 above the parent with whom the children have been residing is responsible for delivering them to the other parent at McDonald’s restaurant, [omitted] or another location as agreed in writing between the parties.
On Christmas Day, Easter Sunday and each of the children’s birthdays the parent with whom the children are living will facilitate the children speaking to the other parent by telephone at a time agreed between the parties but failing agreement between 6:00pm and 7:00pm on that day.
If the children are not living with the Mother on Mother’s Day the Father will facilitate the children speaking to the Mother on that day via telephone at a time agreed between the parties but failing agreement between 10:00am and 11:00am.
If the children are not living with the Father on Father’s Day the Mother will facilitate the children speaking to the Father on that day via telephone at a time agreed between the parties but failing agreement between 10:00am and 11:00am.
If the Mother’s birthday or the Father’s birthday falls on a day when the children would otherwise be living with the other parent, that other parent will facilitate the children speaking with the parent having the birthday at a time agreed between the parties but failing agreement between 6:00pm and 7:00pm that day.
Each parent notify the other as soon as reasonably practicable of any serious illness of injury affecting the children, and is at liberty to contact any doctor or hospital treating the children to obtain information.
In the absence of an emergency, each parent is to notify and gain the consent of the other of any proposed medical treatment by a general practitioner or paediatrician or other specialist prior to any medical treatment taking place, provided that consent for this treatment is not unreasonably withheld. Each parent will further notify the other of the name of any medical professional who treats the children whilst the children are in that parent’s care.
The parties communicate with each other via a communication book in relation to, or to facilitate arrangements for the children.
AND IT IS NOTED THAT on occasion, should the Father travel to Sydney and wish to spend time with the children, the Mother will use all her best endeavours to facilitate any time additional to these Orders with the children, upon the Father providing reasonable notice of at least 48 hours prior to that time commencing.
IT IS NOTED that publication of this judgment under the pseudonym Illidge & Norton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 123 of 2008
| MS ILLIDGE |
Applicant
And
| MR NORTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. Professor Patrick Parkinson has provided a recent, helpful overview of relocation cases, post 2006.[1] In the course of his discussion, he comments about the difficulty in advising clients about issues that arise in relocation litigation. As more and more decisions of appellate courts refine the principles to be applied in such contests that difficulty is increasingly palliated – subject of course always to the infinite factual and other variables in play in each particular case and in litigation more generally.
[1] “The Realities of Relocation: Messages from Judicial Decisions,” (2008) 22 Australian Journal of Family Law 35-55.
Wiley & Wiley is a very recent decision of the Full Court of the Family Court.[2] It has cast more light on one particular aspect of the principles previously adumbrated in relocation cases, namely the relevance and impact of a parent’s happiness (and perhaps general well-being) on their capacity to parent, and on the consequential impact on a child of a parent’s happiness, emotional well-being and contentment. The Full Court’s decision is directly germane to the present litigation. While the issues it addresses have been considered in other cases, such as Taylor & Barker,[3] it does so in an even more fulsome manner. As well, Taylor & Barker was a majority decision of the Full Court; Wiley & Wiley is a unanimous judgment. It was, of course, decided after the close of the evidence and submissions in the present case, as well as after Professor Parkinson’s article was published.
[2] Wiley & Wiley [2008] FamCAFC 153 (Bryant CJ, Finn & Thackray JJ). See also the [differently constituted] Full Court decision in Winter & Winter [2008] FamCAFC 159 (Coleman, Thackray & Ryan JJ).
[3] (2007) 37 Fam LR 461 especially at [111] and [113].
Relocation cases are a species of the genus described in family law jurisprudence (statutory and judicial) as `children’s matters’ precisely because they involve parenting orders. Such orders are governed by the requirements of Part VII of the Family Law Act1975 (Cth) (“the Act”). As such, the paramount consideration and judicial lodestar is “the best interests of the child/children.” This is prescribed by s.60CA of the Act as well as a long history of judicial authority.
Ms Illidge, the applicant in these proceedings, is aged 42. She wishes to relocate to Sydney from Canberra with the two girls from her marriage to Mr Norton, the respondent. Mr Norton is 54 years of age. The girls, [C] and [D], are aged 12 and 11 respectively.[4] It is indisputable on the evidence that they have a meaningful relationship with both parents. Indeed, the evidence makes plain that the girls have more recently aligned more closely with their Father. This is especially so with the youngest daughter, [D]; the situation is more equivocal and fluid in relation to the older girl, [C].
[4] In the course of these reasons I refer to [C] and [D] as either “the girls” or “the children.”
The relationship with Ms Illidge was Mr Norton’s third, but his second marriage. He has an older daughter from his first relationship. His third marriage, to Ms B, has also unfortunately, and somewhat recently, ended. Ms Illidge and Ms B clearly know each other both from the time that Ms B became the girls’ step-mother, as well as since both women are involved in litigation in this Court with Mr Norton.[5]
[5] Property proceedings between Ms B and Mr Norton were settled pursuant to Consent orders dated 4th August 2008.
In the course of the trial it was suggested, but not much higher, that
Mr Norton has formed another relationship with Ms Y, who lives in Melbourne but who visits Canberra from time to time and has done so when the girls have been living with their Father. Mr Norton said in evidence that he still loved Ms B,[6] although he confirmed that the relationship with her for the last couple of years was “toxic.”[7] He was aware that in the course of his relationship with Ms B his daughters were subject to bullying.[8]
[6] Transcript (19th June 2008) p.84. He had made the same statement to the Family Consultant, Ms Connor.
[7] Transcript (19th June 2008) pp.82-83.
[8] See Transcript (19th June 2008) pp.80 ff.
A final comment to note by way of introduction relates to something that Mr Norton said in the course of his evidence. While stating that he did not see any benefit for the girls in relocating with their Mother,
Mr Norton nonetheless said to them regarding the proposed move to Sydney: “This is an issue that’s going to be decided in Court. Mum and Dad can’t agree. Whichever way it goes it just can only be but a good thing.” In answer to a question from me arising out of this statement, he confirmed: “… whichever way it goes, it can only be a good thing.”[9]
[9] Transcript (19th June 2008) pp.86 & 87.
I mention the above for a number of reasons. First, to provide some context for the difficult circumstances in recent years with which the parties’ daughters have had to deal, not to mention the parties themselves. Secondly, I note the above to highlight that in the myriad circumstances that he has encountered in recent years in particular,
Mr Norton has exhibited resilience and a determined, controlled, indeed resourceful, response. Clearly he is a resourceful person. I will come back to such traits later in these reasons. They, and others, were commented on by Ms Connor. They, and others, were also the subject of some discussion during the trial.
In these reasons I will deal, in order, with (a) the respective proposals of the parties, (b) the law in relation to relocation, (c) the evidence (i.e. the evidence of the parties as well as from the Regulation 7 Consultant, Ms Connor), and (d) the resolution of the issues in dispute.[10]
[10] I had the benefit of detailed written submissions from the experienced Counsel for both parties. In the case of Mr Nash, for Ms Illidge, there were 8 pages of submissions (in single spacing, filed on 8th July 2008), with a further 3 pages (double spaced, filed on 24th July) in Reply. For Mr Norton, Mr Thomas provided me with 46 pages of single-spaced submissions. They were filed on 18th July 2008 and were nothing if not comprehensive. Alas, the large number of paragraphs were not numbered.For comparative purposes only, the number of pages exceeded the prescriptions of the High Court where submissions must not, without leave, exceed 20 pages. See High Court of Australia, Practice Direction No 1 of 2000: Written Submissions and Authorities: All Full Court Matters Except Removal Applications or Leave or Special Leave Applications, par.7.
A. Proposals of the Parties
As stated in her Counsel’s written submissions filed 8th July 2008,
Ms Illidge proposes that she be permitted to move with the children to the Baulkham Hills area of Sydney, where she would live with her future husband Mr F. In her Minute of Orders Sought filed 19th June 2008, she seeks that both her and Mr Norton share parental responsibility for their children; and that the girls spend time with their father each alternate weekend and half of each school holiday period, with specific times for telephone/webcam communication each week and on special days. Ms Illidge seeks that travel be shared with the changeover point occur at McDonald’s in [omitted], or another location agreed between the parties.
In the Respondent’s Case Outline filed 13th June 2008, Mr Norton proposes in the first instance that Ms Illidge’s relocation application be dismissed and that she be restrained from relocation from Canberra; that the parents have equal shared parental responsibility; and that the week-about shared care arrangement of the girls continue in Canberra as it has since January 2001.
Alternatively, and on the presumption that Ms Illidge chooses to relocate to Sydney without the children, Mr Norton proposes that the children live with him and that they spend time with their Mother each alternate weekend and half of each school holiday period, with
Ms Illidge to undertake all the travel involved in collecting from, and returning the children to their Canberra home address. Like Ms Illidge, Mr Norton proposes specific times for telephone communication each week and on other special days.
B. The Law Concerning Relocation
A summary of the essential legal principles regarding relocation cases is set out in my earlier judgment in F v F.[11] Subject to adding appropriate reference to, and any relevant comment on, appellate authority that has appeared since that judgment, for ease of reference, I set out that summary.[12] Beginning at paragraph [7], the summary is as follows:
[11] (2008) 38 Fam LR 52.
[12] In offering the following summary, I do not claim it to be the first of its kind. Among other summaries, Kirby J provided nine (9) general principles in relocation cases in AMS v AIF (1999) 199 CLR 160 at pp.206-211 [141] – 150]. These nine general principles were adopted by Brown J in Mazorski v Albright (2008) 37 Fam LR 518 at pp.520-522.
There is a growing body of judicial authority that provides the relevant legal principles to be applied in relocation cases, and the issues that regularly arise concomitantly in them, such as parenting orders.[13] Drawing from the authorities listed, those principles may be summarised as follows:[14]
[13] This note has been amended from the original lengthier footnote. Chronologically, relevant appellate authorities include: AMS v AIF, AIF v AMS (1999) 199 CLR 160; Martin and Matruglio, (1999) FLC ¶92-876; Paskandy and Paskandy (1999) FLC ¶92-878; A v A: Relocation Approach (2000) FLC ¶93-035; H and L (2000) FLC ¶93-036; U v U (2002) 211 CLR 238; D and SV (2003) FLC ¶93-137; P & P (2005) FLC ¶93-239; Bolitho and Cohen (2005) FLC ¶93-224; H and H (EA 73 of 2004) [2005] FamCA 805; Goode v Goode (2007) 36 Fam LR 422; Godfrey & Sanders (2007) 208 FLR 287 (Kay J); Morgan & Miles (2007) FLC ¶93-343 (Boland J); Taylor & Barker (2007) 37 Fam LR 461 (Bryant CJ & Finn J, Faulks DCJ dissenting); Sampson v Hartnett (No 10) (2008) 38 Fam LR 315; Winter & Winter [2008] FamCAFC 159. Among judgments at first instance in relocation matters, see W v R (2006) 35 Fam LR 608 (Carmody J); W & R (2006) FLC ¶93-251 (Carmody J: international relocation); M v S (2007) 37 Fam LR 32 (Dessau J); Mazorski v Albright (2008) 37 Fam LR 518 (Brown J). Overseas authority of less proximate relevance but which discuss similar principles include Gordon v Goertz (1996) 134 DLR (4th) 321 & Payne v Payne [2001] Fam 473.
[14] Generally, it may be said that the decision in A and A in effect re-states and slightly refines the principles outlined by Kirby J in AMS. Those two decisions were re-visited and encapsulated in the High Court judgment in U v U, which in turn is summarised, refined and applied by the Full Court of the Family Court in Bolitho v Cohen. My summary is a distillation of the principles set out primarily in these cases. In particular, I note that in Bolitho v Cohen the Full Court said [71]: “In U v U the High Court reaffirmed that the “overarching issue” is to ensure that any parenting order is in the best interests of the particular child,” and further [72] that the High Court in U v U “has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals … including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.” The most recent appellate authority of the Family Court in relation to the principles to be applied in “relocation” cases – Morgan & Miles, Taylor & Barker, Sampson v Hartnett (No 10), Wiley & Wiley and Winter & Winter - have not altered in any way, it seems to me, the above summary. If anything, they have confirmed the principles outlined, especially the pre-eminence of the paramount interests of the child, as well as the importance of freedom of movement (accented by the High Court in AMS v AIF, and at least impliedly in Taylor v Barker and Wiley & Wiley), and the happiness and contentment of the parent who proposes to relocate (directly accented in AMS v AIF, Taylor v Barker and especially and most recently in Wiley & Wiley).
a) In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A, [91]; cf. P v P, [48]).
b) The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[15] Hayne J, [171]; Bolitho v Cohen, [71]; P v P, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; A v A, [67] cf. Goode v Goode, [72]).
[15] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
c) Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. P v P, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[16] Freedom of movement, however, takes second place to the paramount interests of the child.
[16] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised at [26] the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85]. See also the comments of Bryant CJ and Finn J in Taylor & Barker at [84-113], and the Full Court of the Family Court in Wiley & Wiley..
d) There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e) The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par.85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f) Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation” [93]).
g) In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; P v P, [40]).
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children. In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt.”
For the purposes of these proceedings, the most relevant Full Court decisions remain Taylor v Barker and the very recent judgment in Wiley & Wiley. In the former case, the Court (Bryant CJ & Finn J) said, at [111]: “The factual matrix in which his Honour’s conclusions were reached, namely that the mother had a child and wished to marry the father of that child and live with him and both children in a family unit, was an important background.” After referring to the `difficult and finely balanced decision’ of FM Brewster, their Honour’s went on to say, at [113]: “In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment.”
In the latter, most recent case, the Full Court unanimously took a similar approach, notably in relation to passages quoted from
FM Brewster’s judgment at first instance. At [32] of the Full Court’s judgment, the following passages are taken from his Honour’s judgment. They are instructive not only for the Court’s consideration of and comment on them, but also because I respectfully and gratefully adopt their application in this case. As quoted by the Full Court, his Honour said:
55. … On balance I am of the opinion that the impact on the children (albeit that my findings as to that impact are based on inference and not objective evidence) were the mother forced to remain in [T] dictates that their best interests would be served were they to live with their mother in [S].
56. I acknowledge that the conclusion I have outlined in the previous paragraph is laconic in the extreme. I state a conclusion but do not explain how that conclusion was arrived at. But I do not believe I can do better than I have. I have to balance the advantages, insofar as the best interests of the children is concerned, of the mother (and of course the children) remaining in [T] with the advantages of the mother (and the children) living in [S]. But how do you compare them? It is akin to comparing apples and pears. It is impossible to qualitatively compare the two. The decision as to where the balance lies falls to me to assess. I have found that it lies in favour of the mother being permitted to relocate. Essentially that is a value judgment which is incapable of analytical explanation. It is, to quote Kirby J in AIF v AMS [sic] (1999) FLC 92-852 at p 86,043 a situation where there is a great deal of “judgment, discretion and intuition” involved.
In this case, as the evidence showed, Ms Illidge has put her marriage to Mr F `on hold’ so that the girls and Mr Norton can continue to enjoy their relationship. She has done so for the last six years. Such restraint and discretion is unusual, to say the least, in family law matters.
C. The Evidence
The Evidence of Ms Illidge: Ms Illidge and Mr Norton married in 1989 (the relationship having commenced in 1986). They separated under the one roof in November 2000. Ms Illidge left the matrimonial home towards the end of 2001. Since that time, she and Mr Norton have shared the care of the girls, effectively on a week about basis. This shared-care arrangement was understandably complicated somewhat when Mr Norton married Ms B in 2001, which marriage lasted until mid-August 2007.
For some years, Ms Illidge has been in a relationship with Mr F. It is their intention to marry later in 2008. Mr F also gave evidence in these proceedings. From the unchallenged evidence, Ms Illidge and Mr F proceeded with very significant caution in introducing the girls to their Mother’s new companion and intended husband. It may be reasonably observed that such discretion is rather uncommon in family law proceedings.
Ms Illidge currently works in the public service. If permitted to relocate to Sydney, she would seek employment but has no firm prospect currently. She said in evidence that she would await the outcome of these proceedings before exploring employment opportunities in Sydney.[17]
[17] Transcript (19th June 2008) p.32.
In evidence, Ms Illidge acknowledged the importance of the girls maintaining a relationship with their Father should she be permitted to move to Sydney with them.[18] At the same time, she also recognised and acknowledged that if allowed to relocate, the girls would likely “grieve” in the process of adjusting to a new city and the physical distance between them and their Father. She maintained that the relocation was and would be in the children’s best interests. She also said that she would stay in Canberra if she was not permitted to relocate with the girls.[19]
[18] See, for example, her evidence at Transcript (19th June 2008) pp.9, 10, 12 & 42.
[19] Transcript (19th June 2008) p.28.
She said that she would encourage the girls’ relationship with their Father. She would do this by, among other things, facilitating telephone contact, and providing copies of school reports.[20] I assume also that, given the ages of the girls, that such facilitation would include electronic communication via email and web-cam-based means of communication.[21]
[20] See, for example, Transcript (19th June 2008) p.16.
[21] See the discussion at Transcript (19th June 2008) p.36.
Ms Illidge agreed with a proposition that I put to her that she would have no difficulty with an order for equal shared parental responsibility. She said that she “would welcome that.”[22] She acknowledged that the girls had friends at their respective schools in Canberra, and that the schools proposed they attend in Sydney would be a little larger than they currently experience. She also acknowledged that in the Report of Sue Connor the girls expressed views (a) that they wished to remain in Canberra, and (b) that they perceive to have some difficulty in communicating with her but not with their Father. These matters, especially the views of the girls, will be considered further when I canvass Ms Connor’s evidence.
[22] Transcript (19th June 2008) p.37.
I accept the statements and evidence generally of Ms Illidge. She presented as a thoughtful and gentle person who would genuinely put the interests of the girls first. She has consistently done so. This was particularly evident in her statement that if orders were made that prevented her relocating with the girls, she would remain in Canberra. Among other things, I understood and accept this statement as a genuine appreciation of the sacrificial nature of parenthood.[23]
[23] I should note here Ms Connor’s evidence which observed Ms Illidge’s “reserved” approach to parenting in the context of the current dispute whereby Ms Illidge has sought not to put pressure on the girls. This has led, up to a point, to a degree of withdrawal of the girls in talking with their Mother. See Transcript (20th June 2008) pp.109-111 & 119.
That virtue was forcefully expressed in the joint judgment of Gummow and Callinan JJ, in U v U (previously quoted in this judgment under the section entitled “The Law Concerning Relocation” at [10]) where their Honours stressed: “The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[24] In the same case, Kirby J emphasised the importance to consider the long-term interests of the child rather than just focusing on the short term.[25]
[24] U v U (2002) 211 CLR 238 at [92].
[25] Ibid at [164]. His Honour said: “It is also highly desirable that courts, such as this Court and the Family Court of Australia, should consider such cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”
In an earlier significant High Court decision also involving relocation, Hayne J warned of the importance of focussing on the interests of the child rather than solely on whether one parent should be permitted to relocate. Commenting on the appeal that was before the High Court, his Honour said: “By turning it into an inquiry about whether she should be permitted to move, attention was distracted (wrongly) from what would promote the welfare of the child.”[26]
[26] AMS v AIF (1999) 199 CLR 160 at [219].
In a number of respects, this case was conducted, to a significant degree, with the focus on Ms Illidge’s hope to relocate. While understandable, it sometimes did not put the best interests of the girls at the forefront of the discussion. I will come back to that in due course. That said, I took Ms Illidge’s evidence as clearly putting the interests of the girls first and foremost in her life, even to the extent of delaying further her marriage to Mr F until some time in the future so that she could remain in Canberra to be closer to them. Her focus was on the best interests of the girls. In this respect, she would sacrifice her life so that the girls could and would remain geographically closer to their Father. Thus, in this light, Ms Illidge could also be said to be sacrificing her life for the girls as well as even for Mr Norton. I have no doubt that her evidence and intentions in this regard are completely genuine. Similarly, I accept her evidence that she would promote the girls’ relationship with their Father.[27] I move to consider the evidence of Mr Norton.
[27] This is a relevant consideration under s.60CC(3)(c) & (i).
The Evidence of Mr Norton: Mr Norton’s evidence may be said to be a little more complex than that given by Ms Illidge. In giving it that description, I make no criticism of complexity or the nature of his evidence per se. I will deal with a number of particular issues or facets of his evidence to explain the descriptor I have given, and more importantly to address issues that relate specifically to the orders to be made that are in the girls’ best interests.
The first matter to address relates to his alternative proposed orders. They have been set out earlier in these reasons; I need not repeat them. The effect of them is clearly that the girls would live with him in Canberra and spend every alternate weekend with their Mother in Sydney. However, all transport for this to occur would be the responsibility of Ms Illidge and her husband. This aspect of these proposed orders was canvassed with Mr Norton at a little length in cross-examination.
Mr Norton did not see that there would be any safety issue for his daughters in Ms Illidge driving for many hours (picking the girls up in Canberra and returning them immediately to Sydney on a Friday evening, and doing the reverse on a Sunday afternoon).[28] For my part, what is more telling is the somewhat clinical approach to the relationship with Ms Illidge that this proposal manifests. By this I mean that Mr Norton seems to take the view that if Ms Illidge wishes to move to Sydney it comes at a price, included in which is all the cost (financial and physical) of transportation of the girls so that they can spend time with their Mother. The large amount of travel by one parent alone would patently impact upon a number of things, not least the capacity of `the driving parent’ to have the wherewithal to spend quality time with the girls.
[28] Transcript (19th June 2008) pp.59-62.
In this respect, in my view, Mr Norton’s approach or attitude to travel, having regard to the best interests of the children, is relevant to this Court’s consideration of s.60CC(3)(e) and (i), as well as s.60CC(4).[29]
[29] For completeness, I should note that Mr Norton was less than impressed with a suggestion that changeovers take place half-way between Canberra and Sydney. His concern in this regard, even if they were to occur at a very public venue, is that he has dealt with patients who have been involved in such things but which have led to “toxic circumstances” between the parties. He did also say that he would of course comply with any such order regarding changeovers. Transcript (19th June 2008) p.61.
In the course of cross-examination, a number of matters were canvassed regarding Mr Norton’s relationship with Ms Illidge regarding the care and welfare of the children. Without needing to go into them in any great detail, they are instructive in a number of respects. First, there was discussion about Mr Norton’s decision to discontinue paying for the girls’ after-school care in 2005. His email correspondence with Ms Illidge was referred to. He said that he was simply wishing to bring the matter to a head to resolve the matter. He disagreed with Counsel for Mr Nash that he was dictatorial.
A second matter concerned an incident involving an inoculation for [D]. In quite direct language, Mr Norton advised Ms Illidge by email that he did not agree with her decision to have [D] inoculated without consulting him. She confirmed that she had done so on the basis that he had agreed with the children being inoculated when they were infants. He warned Ms Illidge that if she did such a thing again he would take action in the Family Court. Although he has no medical qualifications, Mr Norton indicated to the Court his concern about the possibility (remote or otherwise) of the girls having a `toxic shock’ reaction to the vaccine.[30]
[30] Transcript (19th June 2008) pp.67-72. Mr Norton also said (in the same range of questions) that when discussing the matter with Ms Illidge he was further upset because he found her response to be flippant. He said in consequence that he “felt a need to have to make a stand about this.” He also conceded that with more time that he would probably re-write the letter “in a whole range of ways.” Finally, he did not agree with the proposition put to him that his attitude to Ms Illidge, exhibited in the correspondence in question, was “overbearing.”
I venture two comments here. First, if there was a risk of `toxic shock’, it is curious that vaccination was seemingly permissible when the children were infants but not when they were older. Secondly,
Mr Norton seemed to stress in the email correspondence that he had not given any such permission “since our separation.” This would seem to lead to a possible inference that his injunction was related at least as much to post-separation relations as to concern about the children. It also might be observed that certainly the tone and directness of the correspondence, while not offensive, was less than conciliatory.
For abundant caution, and given the context, I note here that there will be an order that in the absence of medical emergency each parent is to notify the other of any medical treatment proposed for the girls. It will be qualified that any relevant permission in relation to that treatment shall not be unreasonably withheld.
A third matter relates formally to the cost of orthodontic work for the girls. The context of and matters addressed in the correspondence surrounding it are not insignificant, again perhaps most relevantly in relation to s.60CC(3)(c) and (i) as well as s.60CC(4). I do not think it is necessary to comment on the exchange in any detail. It is sufficient to set out the full exchange in the Court, including the extract from another email. It speaks for itself. Thus:
MR NASH: Mr Norton, if you go to the annexures at page 50 in the bottom right-hand corner you will see it, I hope?‑‑‑Yes, I have it.
An email of Sunday 19 October 2003?‑‑‑Yes.
From you to Ms Illidge?‑‑‑Yes.
Without taking you through it in detail, the issue there is about dental and orthodontic work and the cost thereof, isn't it?‑‑‑Yes, it appears to be, yes.
And who is to be responsible for the cost, or half the cost, or whatever the issue may be?‑‑‑Well, I assume so. I haven't read that, but, yes.
Thank you. On the second page of that email at page 51 of the documents, in the first full paragraph, you say this to Ms Illidge:
I think that all of this comes down to -
I think it should be read -
a simple issue. As you have said to me on a number of occasions, you were the one who wanted children. Despite my protestations and calls to not go through with the pregnancies, you decided to anyway. I have accepted this and I believe that I have done a very good job in turning a negative into a positive. I love our children and I am very committed to them and I have done my very best for them. You yourself have said this to me on occasion. However, what this comes down to is that you cannot have your cake and eat it too. It was your decision (not mine) to have children, and now you must live with the responsibility of that decision. I require you to meet your obligation and responsibility in meeting your half of the costs of the children -
and then you go on about the orthodontic work. Now, that's a pretty clear attitude about Ms Illidge and the children, isn't it, and whose responsibility you see lying where; do you agree?‑‑‑It depicts one of my attitudes -there's a number of them - yes.
It depicts an attitude that, in effect, I want to suggest to you, is pretty clear, and it says that, "Well, if you wanted to have children and I didn't, and we did, despite me doing the best for them, you can't have your cake and eat it too. It was your decision, now you must live with the responsibility."?‑‑‑Well, there's a piece of information that's left out of there that doesn't make that make sense.
That is?‑‑‑Ms Illidge fell pregnant with the second child, our family doctor suggested that that was pretty close to the first child and it would certainly make a lot of difficulty. I suggested to Ms Illidge that perhaps one of our options might be that we perhaps consider an abortion and have a child a couple of years further down the track to make life a bit easier, simply because our family doctor said that that might be an option to consider. However, removing expletives, her words were, "No, I don't want to do that. I'll do it my way."
Well, you see, in the first full paragraph on that page you say:
As you have said to me on a number of occasions you were the one who wanted children, and despite my protestations and calls to not go through with the pregnancies -
plural -
you decided to anyway.
?‑‑‑Well, again, it's - - -
So it seems out of your own mouth you're saying you weren't happy with either pregnancy and you wanted them aborted; am I right?‑‑‑As you pointed out, the way I've written my emails - I obviously should write them better. However, the point is, the contention between the birth of the second child and the closeness between the two of them, and the pressure that it would place on the parents and the children and the likelihood are my concerns. It was a contentious issue between Ms Illidge and I.
Are you telling his Honour in all seriousness that that's what we should read into the intention behind those very clear words in your email?‑‑‑No, no, no, I am agreeing with you, Mr Nash. I am saying that she must take responsibility for her part of our decision making processes.
Her part of it being her decision to have children, a decision that she must now live with the responsibility of, according to you?‑‑‑Well, it was my decision to agree.
Not an overbearing attitude, according to you, expressed in that part of the email?‑‑‑I will admit freely that I've been upset with a number of the lack of communications that have taken place between Ms Illidge and I; some of the telephone discussions I have found upsetting; and yes, I am guilty of writing an email that's emotionally driven - it certainly does have emotion in it, a range of them, actually.
Now, what's the answer to my question, please?‑‑‑I'm sorry, could you repeat the question?
Yes I could, if you'd answer it. Not an overbearing attitude in that part of the email, according to you?‑‑‑I think it's forthright as opposed to overbearing.
I note that Mr Norton described his exchange with Ms Illidge in relation to the cost and responsibilities regarding the girls as “forthright” rather than “overbearing.” One may cavil with the adjective(s), but it was nothing if not direct. And accepting that it was correspondence from late October 2003, it was, in my view, at least bordering on being overbearing. It was also quite some time after separation. In the light of other examples already noted, and others still to come, it exhibits to me a clinical and calculated approach, if not more, concerning relationships.[31] It would border on the tawdry (or worse) to comment on Mr Norton’s remarks about not wanting the children, at least initially. He put it well, and in a most understated way, when he commented: “It [i.e. having children and or having them close together] was a contentious issue between Ms Illidge and I.”[32]
[31] In the course of her detailed Report, Ms Connor recorded Mr Norton describing his marriage with Ms B as sounding “cold and ruthless” but that his approach was “logical.” See Report (par.5.18).
[32] Transcript (19th June 2008) p.74.
A fourth matter canvassed in cross-examination relates to Mr Norton’s separation from Ms B and related concerns. Two issues arise here. Stated summarily, they are that (a) the girls did not confide in
Mr Norton for two years about the bullying in the household when
Mr Norton was married to Ms B, and (b) Mr Norton did not inform
Ms Illidge that he had separated from Ms B and that he asked the girls to inform their Mother of this occurrence.[33] I leave these matters generally to speak for themselves. In my view, they are but part of the larger and somewhat complex relationship that has existed between
Mr Norton and Ms Illidge since the end of their relationship. The exchanges exhibit again the somewhat clinical and calculated approach to the relationship, and related matters, by Mr Norton.
[33] These matters are traversed at Transcript (19th June 2008) pp.74-84. In one exchange [p.78], Mr Norton said: “[Counsel] Do you consider it appropriate to have left the burden of that decision [the separation from Ms B] of whether to tell their mother or not about your separation to a 13 year old and an 11 year old? [Mr Norton] Yes, I do.” Mr Norton obviously knows his daughters. However, as I have already intimated, for my part, I would be concerned about leaving such decisions or discussions to 11 or 13 year old children, with or without instruction and or counselling.
In making such an assessment I do so without intending to be hypercritical. Nor should I be taken to suggest that he was untruthful, and certainly in no way malevolent. I do not. Whether by nature but at least almost certainly by professional training and practice, Mr Norton presented as a man given to very deliberate action (in word and deed), with every action and word weighed and considered very precisely. He stated that he wished to have time to consider his position regarding his separation from Ms B before speaking with Ms Illidge. This is understandable. However, for my part it still poses some questions about leaving the children in a difficult position when he knew that they would be speaking to their Mother. It would be highly unlikely that they would not speak to her about their Father separating from his wife and the difficult circumstances in which that had occurred.
The penultimate matter to consider in Mr Norton’s evidence relates to a particular matter that arose out of his separation from Ms B and the relationship with the girls the subject of these proceedings.
Following a series of questions relating to the girls being bullied by
Ms B and a step-sister, an incident was explored regarding [D] asking her Father not to tell Ms B about her disclosures regarding bullying until after dinner on the day of the disclosure to her Father. Mr Norton promised [D] that he would follow [D]’s request. As events transpired, Mr Norton said that he felt pressured by Ms B and told her about [D]’s disclosure. This action clearly breached [D]’s confidence. He readily admitted that it “was a very dumb move.”[34]
[34] Transcript (19th June 2008) p.82.
Mr Norton confirmed that he separated from Ms B only after he became aware of Ms Illidge’s proposal to move to Sydney. It flowed from these questions that “the resolution” of the relationship with Ms B was that they separated. Put simply and bluntly, the cost of the resolution of the (long-term) bullying of his daughters by Ms B and a step-daughter was at the cost of his marriage to Ms B.[35]
[35] Transcript (19th June 2008) p.84.
Mr Norton agreed with the proposition that his daughters know about Mr Norton “sacrificing” his marriage to Ms B, and thereby they are “pretty grateful” for removing them from a “toxic situation.”[36]
[36] Transcript (19th June 2008) pp.84-85. As will be readily apparent, “toxic” was or became a regularly used adjective in multiple arenas of discourse. In the course of Ms Connor’s evidence, she agreed with the proposition that [D] had a “sense of owing her father … for ending his marriage to Ms B and her feeling sorry for him as a consequence [and that] those matters being at least factors contributing to that degree of anxiety.” Transcript (20th June 2008) p.99. See also the Report of Ms Connor, dated 17th May 2008, Exhibit B, par.7.11.
I do not doubt the accuracy of Mr Norton’s evidence in this regard. That said, the girls’ “gratitude” would doubtless relate as much to being removed from the bullying behaviour generally they had experienced at least as much as that they had endured it for two years without their Father being aware of it or them confiding in him about it. It obviously was very unfortunate that they felt either that they had to endure it (and do so for so long unchecked) and or that they could not or would not speak to their Father about it. In such circumstances, their gratitude is more than understandable.
Finally, in relation to this matter, Mr Norton agreed that the girls’ views regarding their Mother’s proposal to relocate (canvassed below in the evidence of Ms Connor) are likely, to some degree, to have been coloured by their “gratitude” to Mr Norton for removing them from their long and very difficult home situation.[37]
[37]Unsurprisingly, Mr Norton was asked questions about the proposed relocation of Ms Illidge to Sydney. He acknowledged that there would be some advantages, such as better employment prospects when the girls were older. He also volunteered adverse effects related to “extra pollution and crime and traffic, of course.”[38]
[38] Transcript (19th June 2008) p.87.
While a number of his answers to various questions were, in my view, very controlled and most deliberately considered, I thought
Mr Norton’s answers and or comments in relation to questions concerning Ms Illidge’s happiness and the consequential effect(s) on their daughters was utterly genuine and much less the subject of restrained and almost scrupulous deliberation.[39] For example, in answer to a question from me, he readily accepted that it would be to the girls’ advantage if their Mother was married to Mr F and that “having their mother in a settled, happy, contented relationship would be to their [the girls’] advantage…?”[40]
[39] In using terms such as “controlled deliberation” I should not be taken to be suggesting that Mr Norton was not truthful in his answers. Rather, and not surprisingly, given his professional qualifications and experience, he was very disciplined in his answers, which suggested a very ordered process of preparation prior to and during the hearing.
[40] Transcript (19th June 2008) p.87.
When I put a similar question to Mr Norton regarding his own relationship difficulties, and once they were resolved that too would be in the girls’ best interests, he opined, in my view, most reasonably: “I would also add that once this Court case is settled, which I’m sure has been as stressful for Ms Illidge as it has been for me, both of us will probably be in a much more psychologically settled and comfortable state, which can only benefit the children.”[41] In my view, these answers were the most natural and almost spontaneous of all those given by Mr Norton. They did him more credit than anything else.
[41] Transcript (19th June 2008) pp.87-88. I should also add here that Counsel for Ms Illidge indicated that any extra time that Mr Norton was in Sydney and wished to spend with the girls, and which was outside the formal orders of the Court, would be readily facilitated. Ibid.
Both aspects of the psychological and emotional well-being of the children’s parents, that is, (a) both parents living in a situation that is conducive to their long-term happiness, and (b) the readily and properly acknowledged more settled circumstances of parties when litigation is concluded, are important matters in this case. I will come back to them in the conclusion to this judgment after I consider the evidence of Ms Connor.
D. Evidence of the Regulation 7 Consultant, Ms Connor
Unsurprisingly, Ms Connor’s evidence centred on her detailed Report of May 2008, which became Exhibit B in the proceedings. And because the Report was more critical of Mr Norton than Ms Illidge, unsurprisingly she was examined at greater length and with quite some force by Counsel for Mr Norton. I will note her formal recommendations in the Report first before considering her evidence in cross-examination.
Ms Connor’s Report was comprehensive. She is a family consultant of very extensive experience. Her recommendation was simple (Report: par.9.1): that [C] and [D] relocate to Sydney with their Mother, and have every second weekend and half holiday contact with their Father.
Challenge to the Report
One particular matter, not directly related to the relocation itself, should be mentioned at the outset. In the course of her Report,
Ms Connor said (par.5.33): “Mr Norton’s formal test could not be interpreted because of validity concerns. His tendency to portray himself in the best possible light was evident when he was interviewed as well as in his test performance.”[42] Unsurprisingly, given
Mr Norton’s professional background as a [mental health professional], Ms Connor was cross-examined by Mr Norton’s Counsel at a little length about this conclusion.
[42] At the conclusion of the section of her Report concerning “Psychological Testing”, Ms Connor said (p.30): “Mr Norton’s score on the Positive Impression (PIM) validity scale was highly elevated suggesting he attempted to portray himself as exceptionally free of the common shortcomings to which most individuals will admit. The validity of the PAI clinical profile had to be seriously questioned and no other clinical interpretations were carried out.”
Without becoming pre-occupied with this line of cross-examination, the contest in this regard may be summarised by noting that Ms Connor agreed that there were other psychological tests available to her that may have rendered a different result to those that led to her conclusion just noted. However, the reality is that she used a psychological test that is regularly used by other family consultants who regularly give evidence in this Court, and in the Family Court. Ms Connor confirmed that she began work as a family consultant to the Family Court in 1976, that she is formally qualified to a `master’s level’ in clinical psychology, and has given evidence in Courts for more than 30 years.
Mr Thomas (for Mr Norton) submitted that Ms Connor’s evidence should at least be discounted if not be treated as unreliable for a number of reasons.[43] First, he submitted that her failure to appraise the PAI test was procedurally unfair to Mr Norton. It “constitutes a real denial of natural justice and due process.”
[43] Mr Thomas’s written submissions in relation to the PAI testing run from pp.22-25. Similar issues are also addressed in pp.25-28.
In evidence Ms Connor agreed that she could have tested Mr Norton further but she did not do so. On a number of occasions she confirmed that she had formed an opinion (for example, in relation to Mr Norton’s explanation for his separation from Ms B, which she thought was somewhat simplistic and that there was more to the explanation than given by Mr Norton) but had little or no formal evidence, such as a test result, to confirm or verify her assessment or opinion.[44]
[44] See, for example, the various and extended exchanges between Ms Connor and Mr Thomas, Transcript (20th June 2008) pp.111 ff.
Mr Thomas further submitted that because there were a range of questions and other avenues that could have been pursued by
Ms Connor in relation to the further exploration of the PAI testing of Mr Norton, such as using a PAI Interpretive Explorer computer module, her evaluation and conclusions of Mr Norton did not come within the parameters prescribed by the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles.[45] In that case, Heydon JA said: “… the weight to be given to the opinions of experts is to be assessed in the same way as the weight to be given to other witnesses. This cannot be done unless the intellectual basis of the opinion is laid out.”[46]
[45] (2001) 52 NSWLR 705.
[46] Ibid., at [82]. See also [64] & [85], and Cross on Evidence (J.D. Heydon) (Seventh Australian Edition) (Sydney: LexisNexis Butterworths, 2004) [29045] – [29084], and Re Doran Constructions Pty Ltd (in liq) (2003) 194 ALR 101 at [59] – [60].
In my view there are a number of flaws in Mr Thomas’s submission in this regard. First, as Ms Connor said on more than one occasion, she did not use the PAI Interpretive Explorer computer module. It was not her practice to do so. Secondly, while she acknowledged that she used another computer program to assist in the analysis of the data from the PAI test, and accepting Mr Thomas’s point made in cross-examination that it was not a formally tested program, as a clinical psychologist of very long and high standing, she was entitled to use the method of analysis that her experience suggested was best or most appropriate in family law proceedings. It would appear from his letter-head that, notwithstanding the very broad range of areas in which he offers his professional services, Mr Norton’s expertise does not include formal assessments in relation to family law proceedings.[47] For the sake of completeness, it will be noted that he offers services in relation to “family” and “counselling.” He provided no evidence, nor was he examined on his expertise, in this regard.
[47] Mr Norton’s letter-head advertises his professional services to deal with the following: “Pain, Depression, Anxiety, Stress, Individual Counselling, Family, Relationships, Child & Adolescent Development, Personal Development, Sexual Dysfunction, Staff & Training, Anxiety & Depression, Medico-legal Assessment, Spiritual Counselling.” It is unclear, but was not explored, why “depression and anxiety” appear twice in this material.
Thirdly, and most importantly, as Ms Connor stated on more than one occasion, and implied in answer to other questions, her assessment was based not just on the PAI test. Indeed, because it was, in her professional opinion, invalidated, her assessment was based primarily if not solely on her appraisal of Mr Norton from her interview with him, and in the light of her 30 years’ experience as a clinical psychologist in family law matters. In my view, that experience is sufficient to meet the Makita test outlined above. As well, the fact that the invalidated PAI test results were not relied upon by Ms Connor is also, in my view, sufficient to rebut any submission that Mr Norton was denied procedural fairness. Moreover, Mr Norton could have, provided the Court with expert evidence about the PAI test and or any other matter concerning Ms Connor’s Report about which he was concerned but chose not to do so. In those circumstances he can hardly complain about lack of procedural fairness.[48]
[48] It may also be remarked that Ms Connor is and was not a `decision-maker’ but an expert giving expert evidence in the light of her qualifications and experience. Matters of procedural fairness are usually confined to procedures and decisions of “decision-makers” rather than to expert witnesses. Generally, see M. Aronson, B. Dyer, M. Groves, Judicial Review of Administrative Action (Third Edition) (Sydney: Thomson – Lawbook Co., 2004) Chapter 7 “Procedural Fairness: the Scope of the Duty.” More summarily, see P. Cane, L. McDonald, Principles of Administrative law: Legal Regulation of Governance, (Melbourne: Oxford University Press 2008) pp.128-146.
Fourthly, as just stated, no expert evidence was proffered on behalf of Mr Norton to challenge, rebut or to critique either Ms Connor’s methodology or her assessments. It is one thing to test her evidence in cross-examination. This occurred and did so very thoroughly. It is quite another thing to challenge that expert evidence formally with alternative expert evidence. This did not occur. In such circumstances the Court is entitled to accept Ms Connor’s well-tested but otherwise unchallenged expert evidence.
Another ground of attack on Ms Connor’s Report related to her [alleged] failure to assess the `level of maturity of the children’ and `the likely effect of relocation upon the relationship between the father and the children.’ In cross-examination, Ms Connor acknowledged that she did not specifically address the former, or the possible effect of the relocation of the children on the relationship with their Father.[49]
Mr Thomas submitted that because of this failure to address these matters specifically, the Report was fundamentally flawed.
[49] Transcript (20th June 2008) pp.104 & 105.
I do not accept the first ground of attack. Ms Connor did formal assessments of each of the girls. These assessments are set out in her Report (Attachments 3 & 4). As well, Ms Connor interviewed both girls. On either or both of these bases, it cannot be said that she failed to assess `the level of maturity of the girls.’ As well, she concluded (par.8.6 of the Report) that the wishes of the girls “are not of long duration.” She noted their various levels of anxiety and distress. All such matters are, in my view, directly relevant to her assessment of the children’s level of maturity and her recommendation reflects an appreciation of such an assessment.
The same general comment can and must be made in relation to the criticism that her Report did not address specifically the likely effect of relocation on the girls’ relationship with their Father. Indeed, her formal testing of the girls considered the Bene-Anthony Family Relations test (Children’s Version), the Revised Children’s Manifest Anxiety Scale, as well as the Child Behaviour Checklist. Given that (a) the whole case was about Ms Illidge’s application to relocate with the girls to Sydney, and (b) the girls were patently aware of it and the respective views of their parents, it is (respectfully) bordering on the illogical to suggest that there was no evaluation of the likely impact of the relocation on the girls’ relationship with their Father. The testing and interviews were all predicated precisely on this proposal and the possibility and the risks and benefits inherent in it occurring. True it is that an exhaustive or detailed analysis of any and every permutation of the impact of the relocation on each parental relationship with the girls was not carried out. However, in my view, the specific context of the case, and therefore the context of the assessments and interviews, challenges the submission that no relevant assessment of the impact of relocation was undertaken. For these reasons, I also reject the second ground of attack on the Report.
In my view, Ms Connor’s Report and the testing she conducted speak for themselves. They are, of course, supplemented or complemented by her oral evidence, and my own assessment of the parties, to which I have already referred. I move to the substantive issues canvassed in her evidence. Given how much has already been traversed, I will do so as summarily as possible.
Trial Evidence of Ms Connor
Regarding Mr Norton, Ms Connor said that she observed him to be a dominant character and someone not easily thwarted, that he had an “unstable relationship history”, and that he had told the children that he put them first, and by association that the girls were the reason for the break up of his third marriage.[50]
[50] Transcript (20th June 2008) pp.97, 120 & 122.
She said that the girls would inevitably be aware of their Mother’s unhappiness if she was unable to relocate to Sydney, but thought that she would be a “sufficiently competent parent” to be alert to that in her parenting.[51]
[51] Transcript (20th June 2008) p.98.
In relation to the respective parenting styles and related issues,
Ms Connor noted that Mr Norton was empathetic to the children, while Ms Illidge had a more reserved approach to parenting, although, as noted earlier in these reasons, this latter observation was qualified on the basis that it should be viewed in the context of the current litigation. She considered that the Mother’s reserve would change after the litigation was resolved. Ms Connor regarded Ms Illidge as warm, sympathetic and supportive of the children.[52]
[52] Transcript (20th June 2008) pp.109, 111 & 119.
In relation to the views of the children, Ms Connor observed that [D] was aligned with her Father (which she saw as an example of
Mr Norton’s ability to influence), that [C]’s wishes had changed and were now more equivocal, although she thought that living with her Father would be better. All of that said, Ms Connor confirmed her reservations, set out in paragraph 8.6 of her Report, about the views of the girls. At that paragraph, Ms Connor said:
Although both girls seemed aligned with their father and are stating a preference to reside with him, I have reservations about the wisdom of acceding to their wishes and consider they have been covertly influenced by their father to come to these wishes. The wishes are not of long duration – in September last year, the girls wanted to reside with their mother to the extent that they refused to return to their father’s. [D] was showing signs of anxiety and both girls were distressed. In my opinion neither daughter wanted to upset their father, who unlike their mother, was now by himself.
It is important to quote also the following paragraphs from
Ms Connor’s Report. In the light of the other evidence, I accept
Ms Connor’s observations already stated, and those which follow. They provide a good summary and assessment which I accept from my own observations and general assessment of both parties during the course of the trial. In particular, I note the following from the Report:
Mr Norton has a busy [omitted] practice. His availability to his daughters is necessarily curtailed. Ms Illidge, on the other hand, proposes working part-time only in Sydney and Mr F will be able to work flexible hours near home and at times from home. (par.8.7)
Both girls like their mother’s fiancé, Mr F and he indeed impressed as a caring man who emphasised his wish for the girls to have a settled, family oriented lifestyle. (par.8.9)
In conclusion I am not convinced, despite their current expressed wishes, that the girls’ best interests in the longer term will be served by them remaining in Canberra with their father. Their mother offers them long term stability and in my opinion has a greater ability to allow them just to be children without involving them in adult conflicts and issues. She will be available to them to assist them in the transition to Sydney. (par.8.10)
Resolution: Application of Law & Facts
In this section I proceed in two parts. First I address the summary of principles gleaned from relocation cases as set out earlier in these reasons, which are taken from my earlier summary in F v F, modified as appropriate in the light of recent Full Court authority. Secondly, I address the “legislative pathway” prescribed by the Full Court in Goode v Goode, and again referred to by the Full Court in Keach & Keach. Unsurprisingly, there is some overlap between the two parts.
Relocation Principles & the Evidence
“In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides.” This is clearly the case here. There is no single factor that is utterly persuasive or determinative of the resolution of the issues in this case. Indeed, in many respects, the factors are finely balanced. And, as with all relocation cases, there will be an impact on the children and their parents. That said, it should not be seen, as is usually the case in commercial cases, that one side “wins” and the other side “loses.”
“The over-arching issue is to ensure that any parenting order is in the best interests of the child. This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child.” This statement of principle is, of course, a paraphrase of the legislative prescription in s.60CA of the Act regarding the best interests of the children being the paramount consideration in making parenting orders.
The recent, fulsome discussion by the Full Court in Wiley & Wiley is of significant assistance in resolving these proceedings. I will defer consideration of it until the next section when I deal with “the legislative pathway.”
“Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. Freedom of movement, however, takes second place to the paramount interests of the child.” In this regard, Ms Illidge has put her relationship with Mr F “on hold” for six years. She has done so to ensure that the girls have been able to secure and to continue a meaningful relationship with their Father.[53]
[53] Because there is no “custodial parent” in these proceedings, I need not consider specifically the principle that there is no presumption in favour of such a parent to reside where he or she wishes.
As I have already indicated, it could also be argued that such a sacrificial approach has benefited not only the girls but also Mr Norton. Couched in terms of sacrifice or “cost”, Ms Illidge has paid a very high price to continue her relationship with Mr F. He too has borne this cost directly. In my view, she should be permitted to relocate and to marry Mr F. Her well-being in a settled relationship, which has already endured six years of significant, partial but regular separation, is very significant. In being permitted to relocate, as Mr Norton readily accepted, she would be significantly more settled. Such a positive disposition and solid home environment would be very much in the girls’ best interests. In my view, the girls’ relationship with their Father would not be compromised by living with their Mother in Sydney. It is sufficiently strong to withstand any short-term strains that would come in any adjustment that will necessarily flow from the relocation.
For ease of reference I note again the Full Court’s comments in Taylor v Barker, at [111] and [113], regarding `finely balanced’ fact situations – which this case is – and that often one factor will usually be decisive. In that case, as in this one, a critical factor was the Mother’s desire to marry her new partner. In this case, Mr F cannot now (respectfully) be described as “new” because he has been waiting patiently for six years to marry Ms Illidge and commence fully their life together as a married couple. In my view, the girls’ happiness and contentment and their best interests generally are intrinsically connected with their Mother’s happiness and contentment. This was formally recognised by the
Full Courtin Taylor v Barker and most recently in Wiley & Wiley.
“The applicant who seeks to relocate need not establish “compelling reasons” for such a move. Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests.” In relation to the latter it is for the Court to determine what is in the children’s best interests. The matters canvassed in the previous two paragraphs deal with important reasons concerning the relocation.
“Transport and modern means of telecommunication may be relevant factors in making proper arrangements as between a child and his or her non-resident parent.” In this case, the children are clearly of an age when modern means of communication will ensure that they have ready and easy communication with their Father.
“In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child.” I will take a few moments to deal with the respective options available in this matter.
Mr Norton proposes two options: that the girls remain with him and the current shared-care arrangement continue with Ms Illidge, who would, by choice or otherwise, [thereby] continue to live in Canberra where she is currently employed full time in the public service. His alternative proposal is that the girls live with him and spend defined time with their Mother, upon her relocation to Sydney. In this latter proposal, according to Mr Norton, as I have already indicated, all the driving would be done by Ms Illidge.
In relation to both of these proposals the burden would essentially fall entirely on Ms Illidge. In the first option, she would continue to be deprived of her full-time marriage with Mr F, which has already been put on hold for six years. In the second proposal, all the travel burden would fall on Ms Illidge.
From the girls’ perspective, both options would result in them remaining in their Father’s care, in their current school, and with their current circle of friends. It would also mean that they would, in all likelihood, face either an increasingly despairing Mother constantly thwarted in her desire to marry and live with Mr F in Sydney, where he enjoys significant employment and salary, which seemingly would not be procurable to the same degree, in Canberra.[54] Alternatively, the girls would spend time with their Mother only after she had driven both ways, to and from Canberra. In my view, both options would place the all the sacrifices of parenthood unfairly on Ms Illidge. That would, to some degree, inevitably, flow on to the children. Neither case is in the girls’ best interests.
[54] In evidence, Mr F confirmed that his level of employment, including its benefits, with [omitted] was not transferable to Canberra. Transcript (19th June 2008) pp.50 & 52 53. It was also not disputed that the girls enjoy a good relationship with Mr F.
The option proposed by Ms Illidge, allowing her to relocate with the girls and spend defined, regular time with their Father, poses obvious positives for Ms Illidge, but some obvious negatives for Mr Norton. Clearly a relocation with the girls will necessarily diminish the quantity of time that Mr Norton spends with them. As well, any move away from Canberra will necessarily involve some adjustment on the girls’ part in changing schools and in relation to their various friendship groups. But to put this latter part positively, their range of friends is more likely than not to expand with friends in Sydney as well as in Canberra. As well, I recall Kirby J’s admonition in U v U, cited earlier in this judgment, to focus on the longer term welfare of the children than on the short term. In my view, living with a contented Mother in Sydney with regular and otherwise unfettered time with a most resourceful Father is in the girls’ best interests. I move to consider the “legislative pathway.”
The Legislative Pathway
I begin with a consideration of the presumption of equal shared parental responsibility pursuant to s.61DA. Fortunately there are no issues of violence or other considerations that would militate against there being an order for equal shared parental responsibility. Such an order will be made. Such an order brings into play s.65DAA. I will come back to this section after considering s.60B and s.60CC.
Brown J in Mazorski & Albright neatly summarised the fundamental objects and principles found in these pivotal sections of the Act. They are set out early in her Honour’s judgment in what might be described as the “twin pillars” analogy. Respectfully and gratefully I adopt Brown J’s summary from [3] – [6] of her judgment:[55]
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[55] Brown J’s comments are, of course, a something of a summary of the more expansive discussion by the Full Court in Goode v Goode, particularly at [65] – [82]. See also the discussion by a differently constituted Full Bench in Keach & Keach (2007) FLC ¶93-353 (Bryant CJ, Finn & May JJ), especially at [24] ff.
The objects of s.60B(1), and the principles set out in s.60B(2), are reinforced and enfleshed in s.60CC(2) with respect to the primary considerations of the benefit to the child of having a meaningful relationship with both of the child’s parents, and the “additional considerations” set out in s.60CC(3). I move to consider those additional considerations.[56]
[56] Unless otherwise required, I will follow each of the paragraphs in s.60CC(3) seriatim without necessarily referring to each paragraph reference.
I have already noted Ms Connor’s assessment of the girls’ views, and the degree of circumspection she commends to the Court in acceding to them. Given their ages, the difficult circumstances in which they have lived for the last few years, and the shift in their perspective in recent times, I accept that a degree of caution in placing significant weight on their views is warranted.
I have also noted that it is common ground that each parent has a good and meaningful relationship with each child. I also accept that the girls are, to varying degrees, currently more aligned with their Father than with their Mother. I have also noted previously one particular reason for this, being Ms Illidge deliberately taking a more reserved approach to her relationship with the girls so as not to put more pressure on them at this time. I need not repeat other matters previously canvassed on the girls’ relationship with each parent.
In relation to sub-paragraphs (c) and (i), I note that there have been times of difficulty in communication between the parents, and some decisions that certainly should properly `raise eye-brows’ (such as leaving children barely in their teens to decide when and what to tell their Mother about their Father’s separation from his wife). However, for the most part Ms Illidge and Mr Norton have developed what might be described as a business-like working arrangement with respect to their willingness and capacity to facilitate and encourage a close and continuing relationship between the girls and the other parent. My assessment of both parties, and supported by Ms Connor’s general comments, is that each of them has the wherewithal to continue this support and encouragement of the girls’ relationship with the other parent. I also have no doubts about the capacity of both parties to continue to exercise their responsibilities of parenthood that have the best interests of the girls as the paramount consideration.[57]
[57] These remarks also are relevant to, and reflect my consideration of, s.60CC(4).
In my view, I have also addressed in various parts of these reasons the likely impact of the children moving to Sydney with their Mother. Undoubtedly, in the short term, there will be practical changes regarding school and friendship groups. Likewise, there will be some impact on the quantity of time that Mr Norton spends with the girls. However, having regard to his resourcefulness, to which I have regularly referred, and to the extremely good relationship that the girls enjoy with their Father, I have no doubt that Mr Norton will make every effort to ensure that the diminution of time is both compensated for with even greater quality time with the girls, as well as his readiness to take advantage of any opportunity to spend extra time with them, something already formally offered on behalf of Ms Illidge in the course of the trial. Having regard to the long-term, as I am required to do, I consider that the relocation to Sydney will be in the girls’ best interests.
There will certainly be a practical difficulty, and some expense, associated with the children spending time with their Father consequent on the girls moving to Sydney with their Mother. Fortunately, the distance between Sydney and Canberra is not huge. Driving between the two cities can be shared between the two families rather than one family doing it all. Subject to any other arrangement, change-over can be specified for some convenient mid-point. Similarly, ready access to various electronic means of communication will facilitate on-going and meaningful dialogue between the girls and the parent with whom they are not residing at any one time.
No question was raised during the trial about the capacity of either parent to provide for any of the needs of the girls. This is relevant to s.60CC(3)(f) and (g).
Section 60CC(3)(h), (j) & (k) have no application to these proceedings.
Having regard particularly to Mr Norton’s views, noted at the outset of this judgment, regarding the decision of the Court resolving things according to the criterion of the girls’ best interests, and no less importantly his wide-ranging capacity on many fronts, the orders I propose are the least likely to result in further litigation.
It remains, in the light of the above, to consider the operation of s.65DAA. By and large, because of the distance involved, s.65DAA(5) is the most relevant in the circumstances. In acceding to the application to relocate, the practical reality militates against there being an order for equal time. Similarly because of distance, the capacity for the girls to spend “substantial and significant time” with their Father is compromised, except for school holidays. On these matters I gratefully and readily adopt what my learned colleague FM Brewster said, which was seemingly endorsed by the Full Court, in Wiley & Wiley, especially at [27] to [32].[58] Also gratefully, I accept and respectfully adopt the Full Court’s more formal discussion in that same judgment, beginning at [53] through to [73].
[58] Paragraph [32] of the Full Court’s judgment was cited earlier in these reasons. See [15], at pp.8-9.
Conclusion
In AMS v AIF Kirby J said, at [145]:
… the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. … One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. (internal citations omitted)
In these proceedings, for the reasons set out above and in the light of established appellate authority, not least (a) that which Kirby J espoused in AMS v AIF especially with respect to freedom of movement and the capacity to re-establish one’s life relatively unfettered by judicial and other interference, (b) in accordance with recent authority of the Full Court of the Family Court in Taylor v Barker and Wiley & Wiley, as well as (c) having regard to Mr Norton’s very good relationship with the girls, and (d) having regard to the “large element of judgment, discretion and intuition”[59] involved in matters of this kind, in my view, the best interests of the girls are served by residing with their Mother in Sydney and spending liberal time with their Father, either as agreed or, in the absence of agreement, as determined by the Court as set out in the orders made in these proceedings.
[59] The words quoted are also from Kirby J’s judgment in AMS v AIF at p.211 [150].
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 21 November 2008
Transcript (19th June 2008) pp.84-86. [D] is recorded by Ms Connor as saying to her Mother that
Mr Norton has made “so many sacrifices for us.” As already indicated, I will consider Ms Connor’s evidence shortly.
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