JANE & JANE
[2012] FamCA 1029
FAMILY COURT OF AUSTRALIA
| JANE & JANE | [2012] FamCA 1029 |
| FAMILY LAW – CHILDREN – Family Violence and Abuse – where the father physically abused the children and perpetrated acts of family violence against the mother in the past – where the father had refrained from abuse and family violence for more than two years – where the father no longer posed an unacceptable risk of harm to the children – where the father remains subject to an amended family violence order FAMILY LAW – CHILDREN – Parental Responsibility – where the parents have equal shared parental responsibility - where the presumption of equal shared parental responsibility did not apply by reason of past abuse and family violence – where the mother and father both demonstrated a capacity to communicate and negotiate major long-term issues relating to the children – equal shared parental responsibility allocated FAMILY LAW – CHILDREN - With whom the children spend time – where it is in the children’s best interests and reasonably practicable for them to spend unsupervised time with the father on an expanding basis, graduating to substantial and significant time, on the condition that he undergo further psychological therapy and not inflict corporal punishment upon them – where the amount of time the children spend with the father is contingent upon the proximity of his residence to theirs – where the children live with the mother – where a family violence order for the protection of the mother and children against the father remains in force FAMILY LAW – CHILDREN – Relocation – where it was in the children’s best interests for them to relocate to the United Kingdom with the mother, in circumstances where the father would also move to the United Kingdom – where the children had meaningful relationships with both parents – where both parties encouraged the children’s relationships with the other parent – where there was no demonstrated financial disadvantage through relocation to the United Kingdom – where final parenting orders could be enforced in the United Kingdom pursuant to the 1996 Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children |
| Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002) Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA, 65DAA, 65DAC, 65DAE, 67ZC, 68B and 114 | |
| AMS v AIF (1999) 199 CLR 160 Goode & Goode (2006) FLC 93-286 Hepburn & Noble (2010) FLC 93-438 Jacks and Samson (2008) FLC 93-387 L v T (1999) FLC 92-875 Malcolm v Monroe (2011) FLC 93-460 Marriage of Sedgley (1995) 19 Fam LR 363 McCall v Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Sampson v Hartnett (No 10) (2007) FLC 93-350 Taylor v Barker (2007) FLC 93-345 U v U (2002) 211 CLR 238 | |
| APPLICANT: | Mr Jane |
| RESPONDENT: | Ms Jane |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 736 | of | 2011 |
| DATE DELIVERED: | 10 December 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 19, 20, 21, 22 & 23 November 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R. Haricharan |
| SOLICITOR FOR THE APPLICANT: | Hunter Family Law Centre |
| COUNSEL FOR THE RESPONDENT: | Mr C. Boyd |
| SOLICITOR FOR THE RESPONDENT: | Fielden & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K. O'Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All former orders relating to the following children (“the children”) are discharged:
(a)B, born on … January 2000;
(b)C, born on … June 2001;
(c)D, born on … March 2003; and
(d)E, born on … February 2005.
The mother and father shall have equal shared parental responsibility for the children.
The children shall live with the mother.
Unless otherwise agreed, subject to the father’s compliance with Orders 10 and 11 hereof, the parties shall take all reasonable steps to ensure that the children spend time with the father as follows until 30 June 2013:
(a)Whilst ever the father lives within 30 kilometres of the mother and children:
(i)From 9.00 am until 5.00 pm each Saturday; and
(ii)From 5.00 pm until 8.00 pm each Wednesday.
(b)Whilst ever the father lives more than 30 kilometres from, but within 250 kilometres of, the mother and children:
(i)From 9.00 am until 6.00 pm each Saturday.
(c)Whilst ever the father lives more than 250 kilometres from the mother and children:
(i)During school terms, from 9.00 am to 5.00 pm each alternate Saturday, commencing on the first Saturday of each school term; and
(ii)During school holidays, from 9.00 am to 5.00 pm on the first, third, fifth, and seventh days of the holidays, commencing in the first school holiday period after 31 January 2013.
Unless otherwise agreed, subject to the father’s compliance with Orders 10 and 11 hereof, the parties shall take all reasonable steps to ensure that the children spend time with the father as follows from 1 July 2013 until 31 December 2013:
(a)Whilst ever the father lives within 30 kilometres of the mother and children:
(i)During school terms:
(A)Each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on the first weekend of each school term; and
(B)From 5.00 pm until 8.00 pm each Wednesday.
(ii)During school holidays, for one-half of all school holiday periods, being the first half in holidays falling or commencing in odd numbered years and the second half in holidays falling or commencing in even numbered years.
(b)Whilst ever the father lives more than 30 kilometres from, but within 250 kilometres of, the mother and children:
(i)During school terms, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on the first weekend of each school term; and
(ii)During school holidays, for one-half of all school holiday periods, being the first half in holidays falling or commencing in odd numbered years and the second half in holidays falling or commencing in even numbered years.
(c)Whilst ever the father lives more than 250 kilometres from the mother and children:
(i)During school terms, from 5.00 pm on Friday until 6.00 pm on Sunday on the third and sixth weekends of each school term; and
(ii)During school holidays, for one-half of all school holiday periods, being the first half in holidays falling or commencing in odd numbered years and the second half in holidays falling or commencing in even numbered years.
Unless otherwise agreed, subject to the father’s compliance with Orders 10 and 11 hereof, from 1 January 2014 the parties shall take all reasonable steps to ensure that the children spend time with the father as follows:
(a)Whilst ever the father lives within 30 kilometres of the mother and children:
(i)During school terms:
(A)Each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each school term; and
(B)From 5.00 pm until 8.00 pm each Wednesday.
(ii)During school holidays, for one-half of all school holiday periods, being the first half in holidays falling or commencing in odd numbered years and the second half in holidays falling or commencing in even numbered years.
(b)Whilst ever the father lives more than 30 kilometres from, but within 250 kilometres of, the mother and children:
(i)During school terms, each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each school term; and
(ii)During school holidays, for one-half of all school holiday periods, being the first half in holidays falling or commencing in odd numbered years and the second half in holidays falling or commencing in even numbered years.
(c)Whilst ever the father lives more than 250 kilometres from the mother and children:
(i)During school terms, from 5.00 pm Friday until 6.00 pm Sunday on the third and sixth weekends of each school term.
(ii)During school holidays, for one-half of all school holiday periods, being the first half in holidays falling or commencing in odd numbered years and the second half in holidays falling or commencing in even numbered years.
Orders 3-6 inclusive are suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.
(b)On the Mother’s Day and Father’s Day weekends, during which periods the children shall live with the mother on the Mother’s Day weekend and spend time with the father on the Father’s Day weekend.
For the purposes of implementation of Orders 4-6 inclusive, the school holidays are deemed to commence on the first day following the last day of school term in the State (foreign or Australian) where the children are then living, the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school in the State (foreign or Australian) where the children are then living, and the mid point is the day halfway between those first and last days.
Unless otherwise agreed, for the purposes of implementing the time spent by the children with the father:
(a)Pursuant to Orders 4, 5(a)(i)(B), and 6(a)(i)(B) hereof, the father shall cause the collection and the return of the children from and to the venue nominated by the mother not less than seven days in advance; and
(b)Otherwise, the father shall cause the collection of the children from the mother at the commencement of their time with him at the venue nominated by the mother not less than seven days in advance, and the mother shall cause the collection of the children from the father at the conclusion of their time with him at the venue nominated by the father not less than seven days in advance.
The parties are restrained from causing or permitting the infliction of corporal punishment upon the children.
The father shall do all such things and sign all such documents as may be necessary to continue therapeutic treatment with a psychologist, for as long as is deemed necessary by that psychologist and his treating general medical practitioner, and for that purpose:
(a)The father shall meet the cost of such treatment;
(b)The father shall inform the mother of the names and contact details of his current general medical practitioner and psychologist; and
(c)The father will waive confidentiality and irrevocably authorise his general medical practitioner and psychologist in writing to confer with the mother to confirm whether the father diligently attends his appointments and is compliant with his treatment regime.
The parties have leave to provide sealed copies of these orders to:
(a) The father’s current general medical practitioner;
(b) The father’s current psychologist;
(c)Any other person who provides medical or therapeutic services to the father; and
(d)The principal of any school attended by the children.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone or Skype with:
(a)The father each Wednesday when the children are living with the mother (unless Orders 4(a)(ii), 5(a)(i)(B) or 6(a)(i)(B) apply, in which case the communication is suspended), between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.
(b)The mother each Saturday and Wednesday when the children are spending time with the father pursuant to Orders 5(a)(ii), 5(b)(ii), 5(c)(ii), 6(a)(ii), 6(b)(ii) or 6(c)(ii), between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
(c)The parent with whom the children are not then staying, on each child’s birthday, between 6.00 pm and 6.30 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jane & Jane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 736 of 2011
| Mr Jane |
Applicant
And
| Ms Jane |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
As is sometimes want to occur, the complexion of these proceedings changed markedly by the time the trial was reached.
Shortly prior to the trial the mother foreshadowed her desire to leave Australia with the children and relocate permanently back to the United Kingdom, from where the parties and the children had emigrated some years before. The father opposed the relocation. He desired that the children remain living with the mother in Australia.
That issue overlayed the pre-existing issues between the parties, which included the state of the father’s mental health, whether the father posed any continuing risk of harm to the children by his subjection or exposure of them to abuse and family violence, and the willingness of the mother to promote the children’s relationships with the father.
The mother proposed that the time spent by the children with the father, whether in Australia or the UK, should always be the subject of supervision, whereas the father proposed that the time spent by the children with him should be expanded and the requirement for supervision discarded.
Background
The parties were both born and raised in the UK. They commenced cohabitation in 1998 and were married in April 2000.
The four children of their marriage were born in January 2000, June 2001, March 2003, and February 2005. The children are now aged twelve, eleven, nine and seven years respectively.
The family emigrated from the UK to New Zealand in March 2007[1] and then moved on to Australia in November 2008.[2]
[1] Single expert report, page 2; Mother’s affidavit, Annexure N (para 3)
[2] Father’s first affidavit, paras 8, 10
The parties separated while living in Australia in April 2010.
Following separation the children remained living with the mother, but spent time with the father over the following months on an ad hoc basis pursuant to arrangements made informally between the parties. By October 2010, the mother required that the time spent by the children with the father be supervised by an independent supervisor, with which requirement the father complied.[3]
[3] Father’s first affidavit, paras 21-22
The father commenced these proceedings several months later in March 2011, following which the parties reached agreement upon interim parenting orders.
On 13 July 2011 the Court ordered that the children live with the mother and spend supervised time with the father for two hours each fortnight. The supervision was provided by an independent supervisor. Provision was also made for the children to communicate with the father by telephone each Tuesday evening.
Those orders were adjusted on 24 August 2011 when provision was made for the children to spend several hours of supervised time with the father each weekend. The increased time was accommodated by the appointment of an additional independent supervisor.
The need for supervision of the time spent by the children with the father was, at least initially, not controversial. The mother did not wish to terminate the children’s relationships with the father altogether, but was concerned for their safety due to the father’s past abusive behaviour.[4] The father admitted his behaviour had caused the children to be fearful of him and that supervision of their time with him was necessary for them to regain their trust in him.[5]
[4] Mother’s affidavit, paras 172, 174
[5] Father’s first affidavit, para 26
There was no dispute between the parties about the children’s residence, it being conceded the children would continue to live with the mother, irrespective of whether that is in Australia or in the UK.
The debate centred around the amount of time the children should spend with the father and whether it should continue to be supervised indefinitely. The mother considered the supervision should remain in place indefinitely because it was too early to be satisfied the father no longer represents an unacceptable risk of harm to the children,[6] but the father proposed dispensation of supervision because he no longer presents such a risk to the children.[7]
[6] Mother’s affidavit, para 130
[7] Father’s first affidavit, para 27
That issue was just as important wherever the children may live with the mother, since the father intended to live in relatively close proximity to them either in Australia or the UK. Although it was not his preference, the father was prepared to relocate permanently back to the UK in order to permit the children’s regular interaction with him.
Proposal and primary evidence of the father
The father began the trial pressing for the orders set out in his Further Amended Initiating Application filed on 6 November 2012, which provided for:
a)The parties to have equal shared parental responsibility for the children;
b)The children to live with the mother;
c)The children to spend time with him, without supervision, for four nights per fortnight, for half of school holiday periods, and on other special occasions; and
d)The children to communicate with him twice each week by telephone or Skype.
During final submissions the father abandoned his proposal and instead adopted the proposal of the Independent Children’s Lawyer.
The father additionally proposed restraint of the mother from causing the children to reside outside Australia and the imposition of certain restrictive conditions upon overseas travel by the children. However, if the children were able to live in the UK with the mother, the father proposed that the same orders apply to regulate the children’s expenditure of time with him.
In support of his position the father relied upon his primary affidavit filed on 14 September 2012 and, with the consent of the mother and Independent Children’s Lawyer, the first 24 paragraphs of his supplementary affidavit filed in Court on 19 November 2012.
Proposal and primary evidence of the mother
The mother pressed for the orders set out in her Amended Amended Response (sic) filed on 10 October 2012. The mother’s proposal was for:
a)Her to have sole parental responsibility for the children and for the children to live with her in the UK;
b)Subject to the father living in the same country as the children, the children spending supervised time with the father each alternate weekend, during school holidays, and on other special occasions, but subject to nomination of the days and times by the professional supervisor;
c)In the event of the father and children living in different countries, the children spending supervised time with the father when he travels to the UK on days and at times nominated by the professional supervisor; and
d)The children communicating with the father once per week by Skype if living in different countries, but in any event, their communication by telephone each week and by email.
At the commencement of final submissions the mother tendered a minute of some modified and additional orders she sought.[8] Of most significance was her revised proposal for the imposition of various conditions upon the allocation to her of sole parental responsibility for the children.
[8] Exhibit M13
In support of her position the mother relied upon her affidavit filed on 14 September 2012.
The mother sought, but was denied, leave to rely upon the affidavit of the maternal grandmother sworn on 12 November 2012, a copy of which had been recently distributed to the father and Independent Children’s Lawyer, but not filed.
Proposal and evidence of the independent children’s lawyer
The Independent Children’s Lawyer did not begin the trial with any settled position, but at the commencement of final submissions tendered a minute of the orders she proposed,[9] which essentially provided for:
a)The allocation of equal shared parental responsibility;
b)The children to live with the mother, but restraint of the mother’s relocation of the children from Australia to the UK, and imposition of restrictive conditions upon the children’s travel outside Australia;
c)The children to spend unsupervised time with the father on a gradually expanding basis culminating, in about 14 months time, with a regime under which the children spend time with the father on alternate weekends, on midweek evenings in alternate weeks, during school holidays and on other special occasions;
d)The expansion of the children’s time with the father being dependent upon the father providing to the mother reports from his doctor and psychologist and obtaining suitable accommodation; and
e)Regular communication between the children and father by telephone and Skype.
[9] Exhibit ICL 36
The Independent Children’s Lawyer adduced evidence from the two independent supervisors who had supervised the time spent by the children with the father. That evidence comprised the affidavits of Ms F and Mr G, both of which were filed on 13 November 2012.
Additional evidence
In addition to the evidence adduced by the parties and the Independent Children’s Lawyer, the Court was invited to take into account:
a)The Memorandum of the Family Consultant, Ms H, dated 20 May 2011;
b)The Family Report of the Family Consultant, Ms I, dated 24 November 2011;
c)The updated Family Report of the Family Consultant, Ms I, dated 19 November 2011; and
d)The report of the single expert psychiatrist, Dr J, dated 7 May 2012, annexed to his affidavit filed on 24 May 2012.
The Family Consultant, Ms I, and the single expert were both cross-examined, but the Family Consultant, Ms H, was not.
Literally dozens of documents were tendered in evidence, it being contended they were material to the issues in dispute, but barely a handful were mentioned in final submissions. Documents should only be tendered if they are relevant and carry probative value, and further, the Court is entitled to expect an eventual explanation about the significance of the exhibits to vindicate their tender. The tender and subsequent ignorance of dozens of exhibits, as occurred in this case, should rightfully be deplored. It is an advocate’s role to sift relevant and probative evidence from the dross, not shovel it all uncritically on to the Court in some vain hope it might somehow mean something to someone.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
The same principles apply in situations of an intended relocation of residence by one party with the children. In Taylor v Barker (2007) FLC 93-345 the Full Court confirmed (at [53]) that the proposed relocation of the children to a geographically distant place should be considered as just one of the proposals for the children’s future living arrangements, rather than as a discrete issue. The Full Court also held (at [60]) that a relocation proposal must be evaluated not only in the context of findings about what is in the children’s best interests under s 60CC of the Act, but also in the context of s 65DAA of the Act, which mandates consideration of the children spending equal, or alternatively substantial and significant, time with the other parent in the event of the allocation of equal shared parental responsibility.
Best interests of children – primary considerations
Section 60CC(2)(a)
It was uncontroversial that the children have meaningful relationships with the mother from which they derive benefit and that the preservation of those relationships must be ensured. So much was obvious from the parties’ agreement that the children must remain living with the mother, wherever their residence is to be established.
Similarly, there was no real debate about the quality of the children’s relationships with the father. The mother acknowledged the children love him, miss him, and enjoy spending time with him.[10] The mother’s concession was consistent with the view formed by the Family Consultant both in November 2011[11] and more recently at the consultation in November 2012, and was also consistent with the impressions formed by the independent supervisors who have supervised the children’s visits with the father.[12]
[10] Family Report 24/11/11, para 72
[11] Family Report 24/11/11, paras 111, 115
[12] Affidavit of Ms F, paras 13, 21; Exhibit ICL4, paras 7-14; Exhibit ICL5;
It is generally accepted that, apart from cases of abusive relationships, children benefit from the development of good relationships with both their parents (see U v U (2002) 211 CLR 238 at 285-286). The mother contended this case fell into the exceptional category, where considerable caution needs to be exercised in how the children’s meaningful relationships with the father are permitted to develop so as to protect them from abuse and family violence perpetrated by him. Consequently, the mother emphasised the pre-eminent importance of the evidence which must be considered pursuant to s 60CC(2)(b) of the Act.
Section 60CC(2)(b)
The risk of harm to the children posed by the father was said to arise from his past subjection or exposure of them to abuse and family violence. That asserted risk was the only reason why the mother insisted upon supervision of the time spent by the children with the father, and she believed the interim supervision had so far satisfactorily served its purpose.[13]
[13] Mother’s affidavit, para 174
The mother contended that the risk of harm to the children was unacceptably high by reason of the protracted history of the father’s violent and abusive behaviour. The father conceded he had been violent and abusive in the past, but there was disparity in the parties’ perceptions about the severity of the violence and abuse. The father also contended that any risk of harm he formerly posed to the children had now abated.
In the event of discrepancy in the evidence I accept the mother’s version of historical events in preference to the father’s. The mother was more assured about the accuracy of her evidence and she was the epitome of restraint and moderation. While the father was generally a reliable witness, openly acknowledging his behaviour had been reprehensible, he still tended to diffuse his culpability and exaggerate the extent of his reformation. My conclusions about the father’s demeanour more closely coincide with the views of the second Family Consultant[14] than those of the first Family Consultant[15] and one of his counsellors.[16]
[14] Family Report 24/11/11, paras 8, 9, 18, 26, 118
[15] Memorandum 20/5/11
[16] Exhibit F2
The following factual history is therefore established on the balance of probabilities.
Although the mother contended the father had always acted towards her in an intimidatory and domineering way, she did not adduce evidence about any frank episode of violence before 2005.
In 2005 the father was so aggravated he deliberately punched a wall inside the family home, causing a hole in the wall with approximate dimensions of 30 by 20 centimetres. That occurred in the presence of the mother and children.
In 2005 the father deliberately kicked the freezer drawers and smashed one of the drawers. That occurred in the presence of the mother and children.
In 2005 the father deliberately smashed the third child’s remote control car. That occurred in the presence of the mother and two of the children. Over a period of years around that time the father intermittently destroyed the children’s toys and pictures in their presence.
In 2006 the father pushed the mother into a wooden door frame causing injury to her elbow.
In 2006 the father grabbed the mother’s wrist and said to her “I could just snap this”.
In September 2007 the father deliberately swerved the family car several times near the edge of a steep hill causing the mother and children to scream in fear. That occurred because the father was angry with the children arguing in the back seat.
In February 2008 the father became frustrated, said to the mother “I would love to throttle you” and then threw a screwdriver, causing it to lodge in a wall near the third child’s head. Some minor damage was occasioned to the wall.
In June 2008 the father shoved the second child in the back, causing her to fall over and become upset.
In July 2008 the father was frustrated with the family dog and threw objects at it. The incident was witnessed by the children and they were all distressed.
In January 2009 the third child repeatedly disobeyed the father’s directions to move away from the first floor banisters. The father vigorously dragged the child away from the banisters causing distress to the child and redness and bruising to the skin on his back.
In May 2009 the third child’s disobedience at a church fete so incensed the father that he delivered a blow with his clenched fist to the child’s abdomen, which winded the child and caused him considerable distress. Some days later bruising was evident on the child’s stomach.
In January 2010 the mother and father argued in the kitchen. The father pinned the mother against the kitchen bench, causing her back to arch backwards over the bench, and held her wrist. The children were watching and were highly distressed.
On another occasion in January 2010 the father pushed the mother forcefully in the back, causing her to fall to the floor in the presence of the children. Although the father tried to pass the incident off as an accident, at least one of the children realised it was deliberate and said “stop hurting mummy”.
In March 2010 the father picked the family dog up by the skin on its back and threw it into the swimming pool. The children witnessed the incident and were distressed.
In March 2010 the father was angry with the children arguing in the back seat of the family car and reacted by swerving the car so that it mounted the verge.
On two further occasions in April 2010 the father was aggravated by what was occurring inside the family car and reacted by driving erratically. On one occasion he deliberately and violently swerved the car off and back onto the road and on the second occasion he drove at high speed towards a wall and only swerved at the last moment to avoid a collision. Such events caused the mother and children to be frightened.
In April 2010 the father called two of the children insulting names and threw his keys at the wall in anger.
In April 2010 the father was frustrated by the third child urinating in his bed. He changed the linen and forcefully pushed the sullied sheets into the mother’s abdomen causing the expulsion of air from her lungs. That incident was the catalyst for the parties’ final separation. The mother directed the father to leave the home immediately, which he did. They have never resumed cohabitation.
At or about the time of separation, realising that his behaviour towards the mother and children was disgraceful, the father set about improving his parenting performance. He said he wanted to “break the cycle of abusive behaviour” and “prove to myself I’m a good Dad”. Throughout 2010, 2011 and 2012 he undertook numerous courses designed to educate him about domestic violence, matrimonial separation, parenting skills, and relaxation.[17] The father also sought out counselling from two separate counsellors[18] – one being a Christian counsellor and the other a psychologist – which he continues to receive even now. He also accepted a referral to a psychiatrist for his mental health review,[19] who he consulted on three separate occasions.[20]
[17] Father’s first affidavit, paras 41-47, 53-54
[18] Father’s first affidavit, paras 51-52
[19] Family Report 24/11/11, para 30
[20] Single expert report, page 4
Although the father had earlier undertaken some courses in New Zealand intended to curb his anger, they had not achieved their objective.[21] His behaviour after moving to Australia was as bad, if not worse, than it had been before. The father conceded in cross-examination that his behaviour became “particularly bad” from early 2010 until the matrimonial separation in April 2010.
[21] Mother’s affidavit, paras 124, 127, 133
The father’s more recent participation in such courses and therapy has probably not completely transformed him from abusive brute to genteel sophisticate, but there has certainly been substantial improvement in the way the father handles his anger and frustration.
The suggestion that the father assaulted the third child after having partially completed the “Taking Responsibility” program in 2010[22] was either an erroneous reference to the father’s assault upon the third child at the church fete a year before in May 2009 or a reference to the father’s abusive behaviour towards the third child by striking and disparaging him in April 2010. The evidence remained unclear.
[22] Family Report 24/11/11, paras 28, 31, 70
In June 2010 the parties took the children to a hobby shop. The third child resisted instructions to leave the shop so the father aggressively manhandled him out to the car. The vigour of the father’s conduct caused the child to be distressed and to suffer reddened marks to his skin.
Since the incident at the hobby shop in June 2010 the father has not been involved in any physical altercation with the mother or the children. The instances of aggression which have occurred since that time have been infrequent and have been confined to verbal confrontations.
In August 2010 the father was frustrated by his perception the mother was unreasonably restricting the children’s time with him and so he yelled in the presence of the mother and children “you’re making me suicidal” and “you’re making me want to fucking kill myself”.
In November 2010 the father berated the mother for delivering a suitcase of clothes to him, even though she did so at his request.[23]
[23] Exhibit M7
Following the parties’ separation some months before, the mother complained to police about the father’s past violent behaviour and the police successfully sought a family violence order on her behalf. The order was made by the Local Court of NSW at Newcastle on 15 June 2010 for a period of 12 months.[24] The police later successfully extended the order, in a slightly modified form, on 23 June 2011 for a period of two years.[25] The father was successfully prosecuted on two separate occasions, in July 2011 and June 2012, for contraventions of the family violence order,[26] but it is common ground the contraventions simply comprised instances of the father contacting or approaching the mother or children.[27] The contraventions were not episodes of physical or verbal abuse.
[24] Mother’s affidavit, para 60
[25] Mother’s affidavit, para 62
[26] Mother’s affidavit, paras 65, 85; Father’s first affidavit, paras 88, 92
[27] Family Report 24/11/11, paras 32-36; Exhibits F4, M9, M10, M11
While the mother is understandably frustrated by the father’s contraventions of the family violence order and has lost trust in his capacity to comply with Court orders, it is evident that violent and threatening conduct has not been a feature of the father’s behaviour towards her or the children for well over two years.
However, the mother is unable to forget the past. The adversity of her experience renders that understandable. Close physical proximity to the father causes her anxiety, which manifests in palpitations, shakes and perspiration.[28] She still has nightmares and remains concerned the father is unable to change his ways.[29] She fears the correlation between the everyday stressors of life and the father’s violent behaviour will never be broken and that, without the imposition of supervision, she and the children will always be hostage to the father’s unpredictable rage and liable to be hurt.[30] I accept that the mother’s fear is genuine, but that does not mean it is now reasonably held.
[28] Mother’s affidavit, para 74
[29] Mother’s affidavit, paras 123, 130
[30] Mother’s affidavit, paras 132-133; Family Report 24/11/11, para 72
The Family Consultant expressed views which tend to vindicate the mother’s fear. The Family Consultant was concerned the father would not be able to manage his behaviour “appropriately and safely” in future when confronted by misbehaviour by the children,[31] but that opinion carries limited weight for several reasons – it was expressed over a year ago when the father’s rehabilitation was not so advanced, the comment is best characterised as an admonition of caution rather than an opinion about a probable future occurrence, the chance of such occurrence is a question of fact about which the Family Consultant has no special expertise, and the Family Consultant’s comments in cross-examination appeared to represent moderation of her earlier caution. While the Family Consultant was right to venture cautious views, assessments of probability about future events are ultimately matters for the Court based on the totality of tested evidence.
[31] Family Report 24/11/11, para 120
Although the Family Consultant recommended that the children should continue to spend time with the father in supervised circumstances,[32] perhaps only on an interim basis,[33] a year has now passed unremarkably since she offered those views in the first Family Report and she acknowledged that the requirement for supervision should be discarded if the Court concluded the children are “not at an unacceptable risk of harm in the father’s care”.[34]
[32] Family Report 24/11/11, paras 124-126
[33] Family Report 24/11/11, para 129
[34] Family Report 24/11/11, para 128
In the context of the father’s frequently violent conduct towards the mother and the children prior to separation and the absence of such behaviour for some years since, on any objective view, the father has successfully demonstrated a substantial change which he has managed to sustain for a prolonged period. It could no longer be fairly contended that the father poses an unacceptable risk of harm to the children by his subjection or exposure of them to abuse or family violence. The risk has now all but been eradicated, despite the mother’s subjective apprehension to the contrary.
Any residual risk of harm to the children, thought to still exist, can be satisfactorily attenuated by the imposition of an injunction precluding the father from inflicting corporal punishment upon them and making the observance of that injunction a condition of the children’s expenditure of time with him. The need for supervision of the children when with the father has passed.
Best interests of children - additional considerations
Section 60CC(3)(a)
In May 2011, all four children reported to the first Family Consultant that they missed the father and wished to spend more time with him, although none then wished to spend overnight time with him.[35]
[35] Memorandum 20/5/11, page 2
In November 2011, the children uniformly reported to the second Family Consultant that they enjoyed spending time with the father, but each of them expressed apprehension about such time not being supervised.[36] At that time the Family Consultant concluded the children did not have complete trust in the father to contain his anger and considered their apprehension should properly be accorded significant weight.[37]
[36] Family Report 24/11/11, paras 80, 83, 88, 92, 98, 101, 108, 123
[37] Family Report 24/11/11, paras 115, 121, 123
When the children saw the Family Consultant more recently in November 2012, they all re-iterated their desire to spend more time with the father[38] and, with the exception of the youngest child, were either expressly or inferentially much less concerned about the need for supervision when with him.[39] The children’s general impression about the need for supervision having abated is consistent with objective appraisal of the evidence.
[38] Family Report 19/11/12, paras 8, 16, 21, 25, 27, 41
[39] Family Report 19/11/12, paras 7, 9, 20, 25, 28, 29, 34, 41, 43
In relation to the separate question about their prospective relocation to the UK, the children uniformly reported their desire to relocate,[40] but there are several reasons why little weight should be accorded to the children’s views in that regard.
[40] Family Report 19/11/12, paras 5, 10, 18, 22, 27, 36, 38
First, the eldest child is still only 12 years of age and the Family Consultant gleaned the impression she had “not…fully entered adolescence psychologically at this stage”,[41] meaning that she and the younger children do not have the cognitive development to understand the full significance of the views they were invited to express.[42]
[41] Family Report 19/11/12, para 45
[42] Family Report 19/11/12, para 44
Second, when the children were most recently invited to express their views to the Family Consultant they all believed that the father was also prepared to relocate back to the UK. The Family Consultant considered that may have influenced their views.[43]
[43] Family Report 19/11/12, para 3
Third, the children apparently knew nothing of the mother’s proposed relocation with them until they met with the Independent Children’s Lawyer on or about 15 November 2012 when that prospect was revealed to them.[44] Following that meeting, when the children were collected by the mother, they immediately raised the matter with her and she discussed the proposal with them. The mother conceded in cross-examination the children would have imputed from that conversation her own desire to relocate to the UK. The inference is readily available that the children would then have formed favourable views about the relocation which were consistent with the views they believed were held by their primary caregiver.
[44] Exhibit ICL4, para 3
Section 60CC(3)(b)
The nature of the children’s relationships with the parties is already sufficiently addressed pursuant to s 60CC(2)(a) of the Act.
It is common ground the children have positive relationships with members of both the extended maternal and paternal families, but because of their residence in the UK, their personal contact with them has been limited.[45]
[45] Family Report 24/11/11, para 4
Sections 60CC(3)(c), (4)
There is little doubt the mother actively promotes the children’s relationships with the father. Significantly, it was not submitted to the contrary.
The mother’s commitment to the retention of the children’s relationships with the father is demonstrated by several simple examples. When the parties separated, despite her concerns about the risk of harm posed by the father, the mother proactively negotiated with the father for the children to spend supervised time with him.[46] The fact that the children all still dearly love the father is testament to her tolerance of their relationships with him. The mother even arranged for the children to present gifts to the father on his birthdays and on Father’s Days.[47] More recently, the mother initiated investigation of the long-term supervisory services available for use by the children and the father in both Newcastle, Australia[48] and in the vicinity of the village in the UK to where she wishes to relocate.[49]
[46] Mother’s affidavit, paras 171-172
[47] Family Report 24/11/11, para 47
[48] Exhibit ICL34
[49] Exhibit ICL35
The father is also willing and able to promote the children’s relationships with the mother, as is obvious from his acknowledgement that the children should continue to live with the mother.
Section 60CC(3)(d)
The orders, which enable the mother to relocate with the children to the UK, could have entailed significant change and required considerable resilience from the children for them to satisfactorily adapt. However, concern of that ilk is substantially ameliorated, if not eradicated, by the willingness of the father to also relocate back to the UK.
As a result of the father’s concession, the children will be accompanied by both parents when relocating back to the country of their origin, to live in broadly the same region in which they formerly lived, surrounded in relative proximity by members of both maternal and paternal families.
The relocation will certainly disrupt the therapeutic relationships the four children have with various counsellors and treating medical practitioners, but that is not likely to be problematic. Concern to the contrary is merely speculative, since there is no evidence of any probable adverse repercussions. The change from medical providers in Australia to medical providers in the UK is unlikely to be a ruction with which the children cannot cope, even though the third child is said to suffer from an adjustment disorder, because the interruption is liable to be relatively brief. The parties both undoubtedly desire the best for the children and would certainly ensure they are afforded comparable services in the UK to those they receive in Australia.
The change wrought by the dispensation of supervision of the time spent by the children with the father is unlikely to unsettle the children. Although they have some residual anxiety about it, they are desperate to see more of him. They will soon discover from their association with him, in the absence of supervision, that it is now unnecessary.
Section 60CC(3)(e)
Given that the father will also relocate to the UK there will be no practical difficulty or expense involved in the children moving between the parties – there was certainly no evidence or submission about any difficulty or expense.
It is the mother’s intention to live in the village of K,[50] situated in the midlands of the UK, slightly north of L Town and about two hours driving time south of M Town.[51] The mother initially considered a move back to M Town,[52] but later discounted that idea.
[50] Mother’s affidavit, para 54
[51] Exhibit M6
[52] Exhibit ICL3
Initially the mother and children will live with the maternal grandmother in her home, but the mother intends to find their own accommodation in or around K Village. The maternal aunt and her children live in M Town. The paternal grandparents, paternal uncle and his children also live in or around M Town.[53]
[53] Father’s first aff, para 33; Father’s second aff, paras 4-7, 19; Mother’s aff, para 54
The father indicated he may decide to live in M Town too, which is the area in which he has already made employment applications and in which he has friends,[54] but as the mother observed, he is not obliged to do so. He is free to live as close to K Village as he chooses. The parties lived in L Town for some years around the time they were married,[55] and the mother was not challenged about her assertion that the father has a “professional network” in L Town.[56]
[54] Father’s second affidavit, paras 13, 14, 18, 23, 24
[55] Exhibit M5 (marriage certificate); Father’s second affidavit, para 9
[56] Mother’s affidavit, para 54
If the father chooses to live in or around K Village then he will be very close to the mother and children. If he chooses to live near M Town, or almost anywhere else in the midlands of the UK, he will be within about two hours driving time of the mother and children. Those distances do not present practical or financial impediments to the children spending substantial and significant time with the father.
Section 60CC(3)(f)
I am satisfied that each party now has the capacity to provide for all of the children’s physical, intellectual and emotional needs.
The mother has always had that capacity, but the father formerly lacked the capacity to meet the children’s emotional needs because of his abuse of them and his commission of family violence upon the mother in their presence. He has regained his capacity to cater to the children’s emotional needs.
It was faintly submitted for the mother that denial of her desired relocation with the children to the UK would diminish her parenting capacity and thereby deleteriously affect the children (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371), but I reject that argument. There was no evidence to that effect even from the mother, let alone from any psychological or psychiatric expert. There must be a proper evidential basis for finding that the mother’s capacity would be impinged as alleged (see Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]), and there was none. On the contrary, the mother impressed with her stoicism and resilience.
Section 60CC(3)(g)
The mother contended the father’s background of psychological instability grossly impaired his parenting capacity. She does not believe that his past psychiatric evaluation and his participation in psychological therapy and educational courses have produced any material improvement in his condition.[57]
[57] Mother’s affidavit, para 127
During the course of the proceedings the father agreed to submit to psychological and psychiatric evaluation by the single expert because of the mother’s professed concern.
Pursuant to consent orders made in March 2012, the father consulted the single expert in May 2012. The single expert subsequently reported his provisional diagnosis of the father’s psychological health in the following terms:[58]
…[the father] has suffered episodes of depression in the past. It is probable he has had a recurring Major Depression, although the differential diagnosis would include a moderate to severe recurring Adjustment Disorder. [The father] is not currently depressed and he does not attract any specific psychiatric diagnosis at this time.
…the extreme anger he has demonstrated in the past with all the associated behavioural problems occurred primarily in the context of a depressed mood rather than a problem arising primarily from his personality.
[58] Single expert report, pages 6-7
The single expert considered the father was vulnerable to the development of further depressive episodes and therefore “strongly recommend[ed]” that he continue to see a counsellor and obtain a referral back to a psychiatrist in the event of becoming depressed again.[59] The Family Consultant agreed the father should continue such treatment.[60]
[59] Single expert report, pages 7-8
[60] Family Report 24/11/11, para 128
Despite the mother’s belief to the contrary, the evidence does not support any finding that the father’s psychological condition permanently detracts from his competence as a parent. He remains prone to recurrence of depression through stress, and may be more susceptible than most to such psychological ill health, but his susceptibility can be adequately controlled by continued counselling and further psychiatric intervention if ever required. With respect to the prospect of ongoing counselling the father said “I have no problem with that at all”. In fact, he proposed a notation to the Court’s orders recording that he would attend counselling for as long as deemed necessary by his “treating counsel” (sic).[61]
[61] Further Amended Application, Notation 18
The father’s submission to ongoing counselling can be ensured by making his participation a condition precedent to the children spending time with him (see LvT (1999) FLC 92-875 at [51]). Verification of the father’s compliance can be ensured by requiring the father to furnish the mother with the contact details of his doctor and counsellor and to waive his therapeutic privilege, so that the mother may periodically inquire from the doctor and counsellor about his participation in and compliance with any recommended counselling regime.
Sections 60CC(3)(h), (6)
Neither the parties nor the children are Indigenous Australians.
Sections 60CC(3)(i), (4)
Self-evidently, the father’s past commission of abuse and family violence demonstrated a grossly impaired attitude to the children and the responsibilities of parenthood. He has, however, rectified his attitude.
The mother’s attitude to the children and the responsibilities of parenthood has been exemplary. Despite being the most influential person in the children’s lives she has not misused her power to try and manipulate the children or the proceedings. The mother formed the intention to relocate back to the UK with the children in August 2012, following the loss of her employment in early July 2012. She instructed her lawyer to notify the father’s lawyer of her proposal,[62] but she said nothing of it to the children. The children still knew nothing of her proposal until they were independently informed of it by the Independent Children’s Lawyer on 15 November 2012, just days before the commencement of the trial. No doubt the mother’s motivation was to avoid use of the children as tactical pawns to further her cause and to avoid disturbing their sense of stability if the relocation was thwarted. Either way, her decision was laudable. She placed the children’s interests ahead of her own on an issue of utmost importance to her.
[62] Exhibit ICL3
Section 60CC(3)(j)
The issue of family violence involving the parties and the children is adequately addressed pursuant to s 60CC(2)(b) of the Act.
Section 60CC(3)(k)
A final family violence order was made against the father for the protection of the mother and the children by the Local Court of NSW at Newcastle on 15 June 2010.[63] The order was varied and extended on 23 June 2011 for a period of two years.[64]
[63] Exhibit M1
[64] Exhibit M1; Father’s first affidavit, para 85
The family violence order permits the father to contact the mother or children in accordance with the terms of any parenting order, but forbids the father from approaching within 100 metres of the mother’s residence or place of work. The family violence order is therefore consistent with the orders made by this Court.
I am not inclined to adopt the recommendation of the Family Consultant to restrain the father from attending the children’s school and extra-curricular events pending expiration of the family violence order.[65] The family violence order, which generically restrains threats, intimidation and stalking, offers sufficient protection to the mother and children and is enforceable before a State court, as demonstrated by the two prior successful prosecutions of the father for contravention.
[65] Family Report 24/11/11, para 131
Section 60CC(3)(l)
The mother, without rebuttal by the father or Independent Children’s Lawyer, drew attention to the adoption by the UK of the 1996 Hague Convention (styled the Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children).
The UK became a signatory to the Convention on 1 April 2003 and ratified it on 27 July 2012. The Convention entered into force in the UK as from 1 November 2012.
As a consequence of the legal enforceability of the Convention in the UK, the parties accepted that the orders made by this Court may now be registered and enforced in the UK. Both parties stated during cross-examination their intention to abide by the orders made by this Court.
In such circumstances, the prospect of further litigation in relation to the children seems remote, regardless of the orders made.
Section 60CC(3)(m)
The father currently has secure employment in Australia, which generates income of $132,000 per annum[66] and enables him to pay child support to the mother of $600 per week.
[66] Father’s first affidavit, para 70
The father is fearful he will not be able to find substitute employment in the UK which is as well remunerated and enjoyable. Nonetheless, he has already made applications for employment in the UK, and been interviewed for one position,[67] which he said would generate income of GBP £45,000 per annum. He has not yet been informed of the outcome of the interview.
[67] Father’s second affidavit, para 16
The mother has recently lost her employment. Her efforts to find other comparable work have been fruitless. She has been informed by recruitment agents that her job prospects are liable to be better in the UK than in Australia. She has procured the contact details for her former employers in the UK and intends to approach them about employment if these proceedings result in her being able to relocate back to the UK.
By reason of her unemployment, the mother currently receives Centrelink income of $500, which when added to weekly child support of $600, means her total weekly income is $1,100. Her rental commitment is $415 per week.
By comparison, without her own wage or child support from the father, the mother would receive welfare income equivalent to AUD $800 per week in the UK. No doubt that figure would be increased by receipt of some child support from the father. Her weekly rental commitment in the UK, when she eventually moves out of the maternal grandmother’s home, would not likely exceed GBP £250 (approximating AUD $375) per week.
In broad terms, the financial position of the children in the UK is therefore likely to be comparable to that in Australia.
There was some debate during the trial about the father’s termination of the family’s private medical insurance some months ago, just prior to his trip back to the UK, but the dispute was arid. The mother declined the father’s offer to maintain the insurance, for reasons explained by her solicitor to the father’s solicitor,[68] so there was no reason for controversy. In any event, the retention or dispensation of private medical insurance was not a factor which would materially influence the issues at stake in the proceedings.
[68] Exhibit ICL6
There was another discrete dispute between the parties about the children’s school enrolments. In the event of the children remaining resident in Australia the father sought that the children attend local Christian schools[69] and the mother sought that the children be enrolled respectively at local State public schools.[70] The mother’s position on the matter was superfluous because she proposed her allocation of sole parental responsibility for the children, which if successful, would have permitted her to make that decision unilaterally.[71] The argument is otiose in view of the orders which enable her relocation with the children to the UK.
[69] Further Amended Application, Order 10
[70] Amended Amended Response, Order 14
[71] Amended Amended Response, Orders 1, 15
Parenting orders
The presumption of equal shared parental responsibility does not apply because of the past commission of abuse and family violence by the father (s 61DA(2)). However, although not presumptively, equal shared parental responsibility for the children may still be allocated to the parties if the evidence warrants such an outcome.
The parties are both highly intelligent and are able to communicate with one another successfully. They have ably proven their ability to confer and negotiate issues of major long-term importance to the children. For example, they amicably negotiated arrangements for the children to spend time with the father following separation for nearly 12 months before these proceedings were commenced. After the proceedings were instituted they reached agreement on interim parenting orders in July and August 2011. They also reached agreement upon the supervisors who would be used to supervise the children’s time with the father. There was a steady stream of email correspondence between them over all manner of issues concerning the children, including the medical appointments they would attend and the schools at which they should be enrolled, for some 12 months after separation until the mother’s solicitor requested the father to desist.[72] The family violence order currently in force expressly permits their interaction through email.[73]
[72] Father’s first affidavit, para 66
[73] Exhibit M1
The parties did not agree upon all the issues that they discussed, but importantly, they were at least able to communicate in writing and engage in a constrained but reasonably constructive dialogue in an effort to compromise. That is all that the law requires of them in the exercise of equal shared parental responsibility (s 65DAC).
I accept the submissions of the father and Independent Children’s Lawyer that the parties should have equal shared parental responsibility, and reject the mother’s submission for her to have sole parental responsibility, notwithstanding its consistency with the Family Consultant’s opinion.[74]
[74] Family Report 24/11/11, para 126
It was uncontroversial that the children should remain resident with the mother. However, the allocation of equal shared parental responsibility renders it obligatory for the Court to consider making orders for the children to live with the father for equal time, or alternatively, for the children to spend substantial and significant time with him (s 65DAA).
It is not in the children’s best interests for them to live with the father for equal time. The father acknowledged that because he does not seek it. In any event, such an outcome would be contrary to the submissions of the mother and Independent Children’s Lawyer and the recommendations of the Family Consultant.
The mother submitted that neither was it in the children’s best interests to spend substantial and significant time with the father, because the need for continuation of supervision would preclude the children spending such extensive amounts of time with him.
The father and Independent Children’s Lawyer both submitted that, while it was not in the children’s best interests to currently spend substantial and significant time with the father, it would become so after gradual expansion of the time they spend with him over the next year or so. That submission had the conditional support of the Family Consultant.
The only reason for the imposition of supervision was to guard against the risk of harm the father formerly posed to the children through their subjection or exposure to abuse and family violence. The finding that such unacceptable risk no longer exists removes the only reason for retention of supervision.
As the Family Consultant observed, retention of supervision would necessarily limit the relationships the children enjoy with the father and may eventually lead to their loss of those relationships.[75] That is not an outcome that can be countenanced when, firstly, the children will benefit from promotion of their relationships with the father, and secondly, the single reason for the imposition of supervision is now redundant. The time has now arrived to discard the requirement for supervision, and in circumstances where supervision is discarded, the Family Consultant recommended the time spent by the children with the father should be expanded on a graduating basis.[76]
[75] Family Report 24/11/11, para 122
[76] Family Report 24/11/11, para 128
I am attracted to the submission of the father and Independent Children’s Lawyer that a regime should be imposed under which the children eventually spend substantial and significant time with the father. That is because the father no longer presents an unacceptable risk of harm to the children, it is in their best interests to spend more time with him, and such a regime is also reasonably practicable, so long as the parties continue to reside in reasonably close proximity to one another.
The only reason they may not continue to live in reasonably close proximity to one another is if the mother relocates with the children to the UK and the father either remains in Australia, or if he also relocates to the UK, he chooses to live in an area geographically distant from the mother. That is a decision entirely within the control of the father.
Proceedings such as this, involving the prospective relocation of the children’s residence, sharply focus the conflict between the best interests of the children to know and have regular interaction with each parent and the interests of parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210).
The mother wants to relocate to the UK with the children, irrespective of the father’s intention, but if that possibility is foreclosed she will remain in Australia and retain her role as the residential parent.
It is undoubtedly true that the father would prefer the whole family to continue living in the locale of their current residences in Newcastle, Australia, where he has stable employment and a generous income,[77] but there is no ambiguity about his intention. In the event the mother and children are able to relocate to the UK the father will also do so, regardless of whether he is able to arrange employment there. He has reported that intention to his counsellors, the Family Consultant and, most importantly, the children.[78] He also gave sworn evidence to that effect.
[77] Father’s first affidavit, para 32
[78] Exhibit ICL4, para 7; Family Report 19/11/12, paras 6, 19, 27, 42
Neither party is required to demonstrate compelling reasons for their decision to either move to the UK or stay in Australia (see U v U at 261; Malcolm v Monroe (2011) FLC 93-460 at [83]). The Court’s decision about any restriction upon the mother’s place of residence with the children is informed by all of the evidence, whilst recognising that the children’s best interests are the paramount but not sole consideration. When weighing the advantages and disadvantages of the competing options, it is the advantages and disadvantages to the children, rather than the parties, which are most compelling (see McCall v Clark (2009) FLC 93-405 at [88]).
The reasons expressed by the father for the desirability of the children’s continued residence in Australia were confined to them being settled at school, having good friendships, and enjoying the outdoor lifestyle.[79] Those reasons are not particularly persuasive, either individually or in aggregation, because the children are unlikely to be denied those same benefits in the UK.
[79] Father’s first affidavit, para 36
For reasons already explained under the rubric of s 60CC of the Act, the children will respond favourably to relocation with the mother to the UK, especially in the knowledge of the father’s commitment to also do so. The changes to their existing routines are unlikely to daunt them. They are returning to familiar circumstances with positive attitudes and will see much more of their extended maternal and paternal families. I do not conclude that the children will be much better off in the UK, but I do conclude that they will be no worse off than they are in Australia. No aspect of the evidence justifies a finding that the children’s interests are best served by restraining the mother from relocating their residence to the UK.
Having reached that conclusion about the children’s interests, the parties’ interests should also be considered.
Relocation to the UK will not be a wrench for the father. When he applied for a divorce on 11 November 2011 the father declared in his application that he did not regard Australia as his home and did not intend to live indefinitely in Australia.[80] Even if he intended to remain living in Australia for some protracted period, he clearly did not intend it to be his permanent country of residence. In these proceedings the father deposed to his intention to apply for Australian citizenship,[81] but he has not done so. He said in cross-examination, implying some equivocation, only that he “may do”.
[80] Exhibit M5
[81] Father’s first affidavit, para 61
The father recently visited family and friends in the UK. He consulted his counsellor upon his return and reported that he was sad about his separation from family and friends in the UK.[82] When the father consulted the single expert earlier this year he made mention of only his friendship groups in the UK and New Zealand. He said nothing of any friends in Australia.[83] There seems little doubt the father would settle seamlessly back into social life in the UK.
[82] Exhibit M3
[83] Single expert report, page 5
Finding substitute employment remains a concern for the father, but that is really no greater a concern for him than it is for the mother. She may not be able to command work which is as well remunerated as that which the father is capable of commanding, but her desire to be employed and earn income in the UK is just as strong and just as worthy as the father’s. The level of the father’s income in the UK is not likely to have any significant bearing upon the children, whose physical needs will satisfactorily be met in any event.
The single expert noted that the father seemed to have strong “therapeutic alliances” with his two counsellors, the loss of which might herald a period of emotional instability for the father, but no reason was advanced as to why the father could not capably form similarly strong therapeutic alliances with other counsellors in the UK.
The father is now well aware of his emotional shortcomings and is vigilant to avoid psychological relapse. Although disturbance of the father’s current employment and therapy would induce some stress and increase the risk of his relapse, the single expert and Family Consultant overtly declined to quantify the increased risk. Indeed, the improbability of his relapse is the very reason why it is now safe to dispense with supervision. It would be duplicitous of the father to argue the improbability of his relapse in order to achieve the dispensation of supervision, but conversely, assert the probability of his relapse in order to scupper the idea of relocation to the UK.
By comparison, restraint of the mother from relocation to the UK would be a bitter blow for her. Although such an outcome would not likely impair her parenting capacity through emotional collapse, she would certainly be sorely disappointed. She is much less inclined to the idea of remaining in Australia than the father is to the idea of his relocation to the UK.
The mother admitted she had previously deposed in an earlier affidavit filed in these proceedings to the contentment of both her and the children in Newcastle, Australia, at which time she envisaged no change of residence. But it is an unremarkable fact of life that people do change their minds about relationships and living arrangements, and the mother has now changed her mind about the location of her residence with the children.
The parental burden has fallen heavily upon the mother’s shoulders because of the past marginalisation of the father in the children’s lives. She has borne the responsibility for ensuring the children’s attendance at all of their paediatric, orthopaedic, neurological, general medical and psychological appointments. Her employment became redundant in July 2012 and she has been unable to secure alternate work. Those circumstances have caused her to conclude she and the children would be better off in the UK, with emotional, practical and financial support from the maternal family, and in particular the maternal grandmother.[84]
[84] Mother’s affidavit, paras 36-37,40-42, 44, 46
The mother has no such support in Australia. The father admitted in cross-examination he had deposed in an earlier affidavit to the fact that the mother has no family or ties in Australia, so her desire for such support in the UK must be unsurprising to him. He understands the importance of family support, because that was one reason why the family moved from L Town to M Town when they all still lived in the UK.[85]
[85] Father’s second affidavit, para 10
If the mother secures employment in the UK, as she hopes to do, then the maternal grandmother will be able to assist her by caring for the children when the mother’s work commitments preclude or impede her availability for the children. The mother will also be all the more needy of emotional support to cope with the idea that the children will be spending unsupervised time with the father, contrary to her wishes.
The general availability of family support to the parties, including such things as reliable quality child care, financial assistance, and emotional support, are important considerations (see McCall v Clark at [131]-[135]; Hepburn & Noble at [43], [49]-[64]).
If compelled to continue living in Australia, the mother’s poor financial circumstances would preclude her regular trips with the children to the UK to visit family members.[86] The father knows the high cost of such visits,[87] but he cannot apparently offer any additional financial assistance to the mother as an inducement for her to remain in Australia beyond a contribution of unspecified magnitude towards a trip to the UK once every two to three years.[88]
[86] Mother’s affidavit, para 49
[87] Father’s first affidavit, para 35
[88] Father’s first affidavit, para 37
On balance, the evidence favours an outcome under which the mother is free to relocate her residence with the children from Australia to the UK. The children’s interests might be better served, but will certainly be no less well served, living in the UK rather than Australia. The move will be beneficial for the mother, and while disappointing for the father, not inordinately so.
The mother sought an order “permitting” her to relocate the children on a permanent basis to the UK.[89] No such order is made. An order framed in terms “permitting” a party to relocate, as opposed to “restraining” a relocation where appropriate, is not a parenting order within the meaning of s 64B nor a mandatory or restrictive injunction under ss 68B or 114 of the Act, and is accordingly not a proper exercise of the Court’s power. The nature of the orders that may be made by the Court within the ambit of power found in those provisions of the Act was discussed by the Full Court in Sampson v Hartnett (No 10) (2007) FLC 93-350. The mother is free to relocate with the children because she is not restrained from so doing.
[89] Amended Amended Response, Order 4
The children will be able to enjoy spending substantial and significant time with the father, after an introductory period of graduated expansion.
The time spent by the children with the father is graduated over the next 13 months, consistently with the submissions of the father and Independent Children’s Lawyer and the opinion of the Family Consultant. However, the graduations are both less frequent and more pronounced over that period. The different regime proposed by the father and Independent Children’s Lawyer, entailing smaller and more frequent incremental changes, had no evidential foundation and so is no more attractive than the regime now ordered. The Family Consultant observed “nobody has a glass ball”. On the assumption she was referring to a crystal ball and the inability to prophesise, I agree with her.
Since the father is apparently yet to make a final decision about where he will live in the UK, the orders need to be sufficiently flexible to accommodate different scenarios concerning the distance between their households. The orders therefore arbitrarily provide different regimes depending upon whether the father lives within a radius of 30 kilometres, 250 kilometres, or more from the mother’s residence with the children.
If the father lives in L Town or some other township within 30 kilometres of the mother, then the children will spend substantial and significant time with him. If he chooses to live further afield, such as in M Town, the regime is curtailed to some degree. If he chooses to live even further away, such as in London, then the regime is necessarily more restrictive. The correlation of those restrictions to those distances is intended to reflect the practical consideration of travel times endured by the children and the parties.
As earlier indicated, the orders provide that the time spent by the children with the father is conditional upon, firstly, the father observing the injunction not to physically discipline the children, and secondly, permitting the mother to satisfy herself about his continuing submission to therapy as recommended by his doctor and therapist. For that purpose, the orders permit the parties to provide copies of these orders to the father’s doctors and counsellors, in similar but not identical terms to the proposals of the mother[90] and Independent Children’s Lawyer.[91]
[90] Exhibit M13, Order D
[91] Exhibit ICL36, Order 20
The Court has no power to make an unconditional final order in the terms proposed by the mother compelling the father to undertake psychiatric therapy for a stipulated period.[92] Such an order is not an injunctive order under ss 68B or 114 of the Act, nor a child welfare order under s 67ZC of the Act, nor a parenting order under s 64B of the Act (see L v T (1999) at [49]-[60]; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).
[92] Amended Amended Response, Order 22
The orders require the parties to notify one another of the venues where they are to exchange the children. Given the intention of the parties to shortly relocate to the UK, no evidence was adduced from which the Court can presently stipulate appropriate venues for changeovers. I reject the idea of the Independent Children’s Lawyer that changeovers can occur at the mother’s home.[93] The mother remains fearful of the father and the existing family violence order precludes the father from approaching within 100 metres of the mother’s residence or place of work.
[93] Exhibit ICL36, Order 7(c)
The remaining orders are uncontroversial.
The Independent Children’s Lawyer proposed the imposition of a family violence order,[94] presumably because the Family Consultant agreed with her proposal in cross-examination that such an order should extend beyond the date of expiration of the current order in July 2013. I decline to make such an order. First, the terms of the proposed order partially replicate the existing family violence order. Second, the order attempts to curtail contact between the parties, which is inconsistent with the Independent Children’s Lawyer’s proposal that the parties should be free to contact each other in writing in order to properly exercise equal shared parental responsibility.
[94] Exhibit ICL36, Order 17
The mother sought an order restraining the father from attending the children’s educational, sporting and extra-curricular activities without the mother’s consent.[95] I decline to make such an order. The father’s behaviour is restricted by the current family violence order and in any event he has equal shared parental responsibility for the children.
[95] Amended Amended Response, Order 16
I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 10 December 2012.
Associate:
Date: 10 December 2012
Affidavit of Mr G, paras 33-34
Key Legal Topics
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Family Law
Legal Concepts
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Procedural Fairness
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