Jeffreys and Jeffreys
[2007] FMCAfam 1084
•18 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JEFFREYS & JEFFREYS | [2007] FMCAfam 1084 |
| FAMILY LAW – Relocation – need to protect children from parental conflict – concerns about willingness and capacity of one parent to foster relationship with other. |
| Family Law Act 1975, ss.60B, 60CC, 60I, 61DA, 65DAA |
| Bolitho & Cohen (2005) FLC 93-224 U & U (2002) 211 CLR 238; (2002) FLC 93-112; |
| Applicant: | MS JEFFREYS |
| Respondent: | MR JEFFREYS |
| File Number: | WOC 264 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 1 November 2007 |
| Date of Last Submission: | 26 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Heard McEwan |
| Solicitor advocate for the Respondent: | Mr David |
| Solicitors for the Respondent: | Hansons Lawyers |
ORDERS
That the children of the marriage B born in 1998 and S born in 1999 live with the Mother.
That the Mother be permitted to reside in Canberra with the children.
The parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children
Each parent have the sole responsibility for making decisions about the day to day care, welfare and development of the children when the children are in their respective care.
The Father spend time and communicate with the children as follows:
(a)During school term each alternate weekend commencing from Thursday evening should the father be able to facilitate this and their attendance at school on Friday or alternatively from after school on Friday at a time agreed by the parties to 6:00 pm on Sunday except as agreed between the parties.
(b)In the event that 5(a) falls on a public holiday long weekend should the father be able to facilitate this then such time that the children spend with the Father shall be extended to the extent of the public holiday on the basis that if the public holiday falls on a Friday then the Father shall collect the children from after school on Thursday and if the public holiday falls on a Monday then the Mother will collect the children at 6:00pm on the Monday.
(c)For one half of the ACT Christmas holiday period as agreed but failing agreement for the first half in the years ending in an odd number and the second half in years ending in an even number.
(d)For the period from the conclusion of school on the Thursday prior to Good Friday to 6:00pm on Easter Monday in each year ending in an odd number.
(e)Subject to Order 5(a), 5(d) and 5(e) for the whole of the ACT school holiday periods at the conclusion of terms 1, 2 and 3 each year with the Father to collect the children at 9am on the day following the last day for students and the Mother to collect the children at 6:00pm on the Saturday prior to the first day for students except as agreed between the parties or where a pupil free day falls on the Monday, then the mother will collect the children at 6:00pm on the Sunday prior to the first day for students.
(f)The father’s time with the children be suspended on any weekend which includes Mother's Day and in substitution the father will spend time with the children on the following weekend at the same times as set out in 5(a) above.
(g)The mother’s time with the children be suspended on any weekend which includes Father's Day and in substitution the mother will spend time with the chilrden on the following weekend at the same times as set out in 5(a) above.
(h)Alternate weekend time with the father to commence on the weekend immediately following the conclusion of the school holidays.
(i)Such further times as the parties may mutually agree.
The Father’s weekend time spent will the children shall be suspended during school holidays and over Easter.
That for the purposes of Order 5(f) school holidays are deemed to commence on the day after school finishes for students and conclude at 6pm on the second last day of the school holidays.
The Father shall collect the children from Canberra at the McDonalds Restaurant [X] at the commencement of his time and the Mother is to collect the children at the McDonalds Restaurant [Y] at the conclusion of the children’s time with the father.
That the Mother make the children available for telephone conversations with the Father between 6.00pm and 7.00pm two days per week as agreed between the parties, with the Mother to text the Father prior to contact to notify the children’s availability.
That both parties hand to the children unopened all letters, mail, email and any items addressed to the children by the other parent or their immediate family.
That both parties give authority for the children’s school and medical practitioners to give to the other parent all information regarding the education or welfare of the children as requested by them.
That the parties do all things necessary to ensure that the children are enrolled in therapeutic counselling for the period deemed necessary by the counsellor and that both parents be at liberty to discuss all issues in that regard with the children’s counsellor.
That the children are not left unattended at the family home or any other place without appropriate supervision.
That each party be restrained from consuming alcohol to excess during periods when the children spend time with them.
That each party ensure that no pornographic or x-rated material or items are kept on the premises at which the children are living or may have access to.
The father have liberty to apply before me within 28 days to have Order 15 above set aside.
Both parents are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the Child; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a)The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b)The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Jeffreys & Jeffreys is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
WOC 264 of 2007
| MS JEFFREYS |
Applicant
And
| MR JEFFREYS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about B who is 9 years old, and S who is 8 years old. Their parents are locked in an intense conflict in relation to them. Their mother, Ms Jeffreys, wants the children to live with her in Canberra. Their father, Mr Jeffreys, wants the children to live week about with each parent, provided they reside within 50 kilometres of each other. The father’s case was conducted on the basis of the mother moving back to the [S] or [I] regions of New South Wales, as he was not prepared to move to Canberra. However, it was clearly implicit that the alternative order that he sought was that the children continue to live with him and spend time with the mother.
There is intense conflict between the parents, and the children are hopelessly caught in the cross-fire. Whilst the tangible manifestation of the conflict was a dispute about with whom and where the children would live, I was left with the profound impression that there are many unresolved emotional issues between the parents, all of which are having a potentially adverse impact on the children.
Background
The applicant mother is 37 years old. She works in Canberra as an officer with [a government agency]. The respondent father is 36 years old. He is self employed, and lives in the [I] region of NSW. The parents started living together in about 1989 and married in January 1998. They had numerous separations, the last of which took place on 5 August 2006. The evidence indicates that their relationship was a turbulent one. They both had strong personalities in their own way. They argued a lot. They fought frequently. The fighting sometimes became quite physical and I find (for the reasons set out below) that the wife was often the victim of family violence. He was physically aggressive at times. She was verbally aggressive at times. They each contributed in their own way to events that rapidly escalated. His physical violence was inexcusable. Her verbal aggression was inappropriate. Both the mother and the father have acted in a manner in the presence of their children that is nothing less than shameful. Whilst B and S have weathered the storm reasonably well to date I am concerned about their future well being. In terms of each parents’ individual parenting of the children there is little to be concerned about. However there is much to be concerned about as regards their ability to co-parent.
Between August 2006 and March 2006 the children were in the equal shared care of their parents. The mother then moved to Canberra, and since then she has spent time with the children each alternate weekend and during school holidays.
Ms Tonkin of counsel appeared for the mother, and Mr David, solicitor, appeared for the father. It was common ground that there should be equal shared parental responsibility.
Issues
These cases are commonly referred to as relocation cases, but from a legal perspective they are really an application for a parenting order the effect of which might be for children to relocate from one geographical area to another, as a result of living with a parent. I need to make an order that is in the best interests of B and S. That relatively simple statement in fact masks enormous complexity. In order to work out what is in the children’s best interest on the facts of this case, it is useful to set out a number of questions by reference to the legislation:
a)Do the children have a meaningful relationship with the parents, and what impact will the competing proposals have on that meaningful relationship? (s.60CC(2)(a))
b)Do I need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence? If so, how do I so protect them? (s.60CC(2)(b))
c)Have the children expressed views that are relevant to this case, and if so what weight should I give to those views? (s.60CC(3)(a))
d)What is the nature of the relationship between the children and their parents and other persons including grandparents? (s.60CC(3)(b))
e)Are the parents willing and able to facilitate and encourage a close and continuing relationship between the children and the other parent? (s.60CC(3)(c) and (4))
f)What is the likely effect of any changes in the children’s circumstances including the effect on the children of separation from a parent? (s.60CC(3)(d))
g)Is there practical difficulty and expense associated with the children spending time with a parent such that it substantially affects the child’s right to maintain personal relations with both parents on a regular basis? (s.60CC(3)(e))
h)Are there any issues about the capacity of the parents to provide for the needs of the children? (s.60CC(3)(g))
i)Are there any concerns about the attitude to the children, and to responsibilities of parenthood, demonstrated by the parents? (s.60CC(3)(i))
j)Has there been family violence involving a child or a member of the family, or is there a family violence order? (s.60CC(3)(j) and (k))
k)On the facts of this case what is the result of a consideration of an order for equal time or substantial and significant time? (s.65DAA)
I propose to deal with the applicable law first, then the expert evidence, and to then deal with the rest of the evidence by reference to the questions I have set out above.
Applicable Law
Even in a relocation case the orders sought are governed by Part VII of the Act. The objects and principles underlying Part VIII are set out in ss.60B(1) and (2):
(1) The objects of this Part are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
e)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
f)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
h)parents should agree about the future parenting of their children; and
i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The child’s best interests are paramount: s.60CA. How a child’s best interests are determined is set out in s.60CC. I must consider these matters. There are primary considerations set out in s.60CC(2):
(2) The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are additional considerations set out in s.60CC(3):
(3) Additional considerations are:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child: t
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
As I am required to make a parenting order, a presumption of equal shared parental responsibility applies, subject to the terms of s.61DA:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
As this section states, the presumption may be negated under subsection (2) if there are reasonable grounds to believe that there is abuse or family violence. The presumption may be rebutted under subsection (4) if it is not in the best interests of the child for there to be equal shared parental responsibility. The effect of subsection (4) is to require consideration of the primary and additional considerations in s.60CC(2) and (3).
If, as in many cases, the presumption of equal shared parental responsibility applies, either because that is what the parents agree to, or it is not negated or rebutted, then I am required to apply s.65DAA and to consider the child spending equal time, or substantial and significant time, with each parent.
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
d)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
e)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
f)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
g)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
h)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
i)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
j)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
k)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
a)how far apart the parents live from each other; and
b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
d)the impact that an arrangement of that kind would have on the child; and
e)such other matters as the court considers relevant.
It is apparent from this section that, once again, I must consider what is in the child’s best interests (pursuant to s.60CC(2) and (3)) and what is reasonably practicable (as defined in s.65DAA(5)).
In my previous decisions of J & R [2007] FMCAfam 181, H & H [2007] FMCAfam 27, and M & K [2007] FMCAfam 26 I set out my understanding of the effect of this legislation on the law relating to relocation. There have been a number of later Full Court cases, and I discuss those below.
I adhere to the discussion in these earlier cases of the meaning of the term “meaningful involvement”, though I recognise that in the Full Court’s decision in Godfrey & Sanders (2007) FamCA 102 Kay J, sitting as the Full Court, made obiter comments at paragraph 36 suggesting a different interpretation. His Honour suggested that the legislation aspires to promote a meaningful relationship, not an optimal one, and that a diminution in the quality of the relationship does not necessarily mean it is no longer meaningful. I accept that the differences in approach are significant. One of the differences is that my interpretation of what constituted a meaningful relationship is based on the social sciences, as I set out in my earlier judgments. In each case it will be a question of assessing the nature and quality of the relationship between parent and child, and the degree to which the relocation diminishes that relationship. On the facts of some cases, the meaningful relationship is not diminished at all. An example of this is the decision of Dessau J in M & S [2006] FamCA 1408. In Godfrey & Sanders (2007) FamCA 102, Kay J obviously found that any post-relocation diminution of relationship was not, on those facts, significant. I very much doubt if His Honour meant his comments to apply generally. The children in that case were 11 and 7. But if the children were much younger, for example, relocation might have caused a greater diminution in the quality of the relationship between them and the non-relocating parent. It is also unfortunate that His Honour did not have the benefit of contrary submissions as to what constituted a meaningful relationship on the facts of that case.
It is also relevant to consider whether a meaningful relationship can be maintained through what has been described as “virtual visitation”. The term was used in two recent articles appearing in volume 36 Family Law Quarterly[1] and encompasses the use of telecommunications technology such as webcam and email. Innovation in telecommunications has resulted in children being able to communicate with their parents orally, visually, and in writing, almost at will. Virtual visitation orders are not uncommon, even in relocation cases. Dessau J in M & S (2006) FamCA 1408 accepted this form of communication at paragraph 93 of her judgment.
[1] Sarah Gottfried, Virtual Visitation: The wave of the Future Communication Between Children and Non-Custodial parents in relocation cases 36 Family Law Quarterly 475, Kimberly Shefts, Virtual Visitation: The next Generation of Options for Parent-Child Communication 36(2) Family Law Quarterly 303
On the facts of that case it was clearly appropriate as the child in questions was not only familiar with but experienced in virtual visitation.
There is a real danger in relocation cases in putting too much weight on the availability of virtual visitation. Can a child have a meaningful post-relocation relationship with the non-relocating parent when that relationship depends on virtual visitation? The Family Law Council had some real concerns about virtual visitation at paragraph 4.12 of its Relocation report dated May 2006[2]. I doubt very much whether the social science approach to meaningful relationship, that emphasises emotional closeness and authoritative parenting in the diverse contexts of parent-child interaction, lends itself to virtual visitation.
[2] Family Law Council Report, “Relocation”, Canberra, May 2006.
From a legislative perspective, s.60CC(3)(e) seems to emphasise “personal relations” and “direct contact” rather than impersonal and indirect forms of contact. Moreover the definition of “substantial and significant time” in s.65DAA(3) emphasises not just the quantitative aspect of time, but the qualitative aspect of opportunities to be involved in daily routines and special events.
Virtual visitation, for some children, in some cases, may be a way of lessening the impact of relocation where relocation is otherwise in their best interests. The availability of virtual visitation is not a reason to allow relocation in and of itself.
A number of recent Full Court decisions on relocation establish the following principles:
a)If the presumption of equal shared parental responsibility applies, even in a relocation case the court must consider whether equal time or substantial and significant time is in the child’s best interests and is reasonably practicable: Morgan & Miles [2007] FamCA 1230 at paragraph 54, citing Goode & Goode (2006) FLC 93-286 and Newlands & Newlands [2007] FamCA 168; Taylor & Barker [2007] FamCA 1246 at paragraph 58.
b)
There is no “right” to relocate, in the sense that there is nothing in the legislation which provides that a parent who has an existing order which provides that the child spend
50 percent or more of their time with that parent has a unilateral right to move the child: Morgan & Miles[3].
c)For the time being, the Family Law Act does not treat relocation cases as a special category of parenting orders. The court is deciding with whom a child should live and spend time: Morgan & Miles[4].
d)In a relocation case there are no presumptions either in favour or against relocation: Paragraph 74 in Morgan & Miles[5] states:
74. The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[3] [2007] FamCA 1230 at at 55
[4] Ibid at 72
[5] Ibid at 74
It is relevant to consider the issue of parental responsibility in the context of a relocation case. The Full Court in Morgan & Miles[6] at paragraphs 75-77 described it in these terms:
75. It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
76. If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.
77. The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
[6] ibid
Section 60I requires parents to make a genuine effort to resolve their dispute with a family dispute resolution practitioner unless the exemptions available under that section apply. This applies to relocation cases as well: Morgan & Miles[7].
[7] ibid at 78-79
The impact of the most recent amendments to the Act in relocation cases has been described in the following terms in Morgan & Miles[8] at paragraphs 79-81:
[8] ibid
79. In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
·that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
·that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
·that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
·the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.
81. What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
The distance involved in a proposed relocation does not necessarily involve different considerations. The Full Court in Morgan & Miles[9] described it in these terms at paragraphs 91-92:
91. The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
[9] Ibid
In dealing with a relocation case, the court must consider the proposal for relocation as one of the proposals for a child’s future living arrangements. It is also relevant to consider other proposals and alternatives including, for example, that the parent opposing the relocation in fact relocate: U & U (2002) 211 CLR 238; (2002) FLC 93-112; Bolitho & Cohen (2005) FLC 93-224; Taylor & Barker [2007] FamCA 1246 at paragraph 53.
There is, in general, a preferred approach to applying the relevant provisions of Part VII of the Act in relocation cases. This is described by the Full Court in Taylor & Barker[2007] FamCA 1246 at paragraphs 62-63:
62. The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
63. We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.
The obligation to consider equal time or substantial and significant time in s.65DAA does not require the court to consider reasonable practicality if it finds that a proposal would not be in the child’s best interests. In Taylor & Barker[10] the Full Court expressed this in the following terms at paragraph 74:
74. In our view, the common sense construction of s 65DAA(1)(c), and also of s 65DAA(2)(d), must be that it is only necessary for a Court to consider whether it would be “reasonably practicable” for the child to spend “equal time” with each parent, or “substantial and significant time” as the case may be, if the Court has already concluded that it would be in the child’s best interests to spend “equal time” with each parent, or “substantial and significant time” (as the case may be).
[10] [2007] FamCA 1246
The obligation to “consider” equal time or substantial and significant time in the context of a relocation case clearly requires the weighing up of the advantages and disadvantages of a parent’s proposal to relocate against the advantages and disadvantages of the maintenance of the status quo: Taylor & Barker[11]. Each of the proposals needs to be considered through the framework of s.65DAA and its core concepts of “equal time”, “substantial and significant time”, “best interests” and “reasonable practicability”. In this regards the Full Court in Taylor & Barker[12] noted at paragraphs 82-83:
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[11] ibid at 75
[12] Ibid
But these sections do not mandate the making of orders in one or other of the terms, only that genuine consideration is given to them. The ultimate question is one of best interests: Goldrick & Goldrick [2007] FamCA 1260 at paragraph 43.
The likely response of the partner of the parent proposing relocation in the event that the court does not permit relocation is not a determining factor in these cases, but may be a factor taken into general consideration: Taylor & Barker[13].
[13] [2007] FamCA 1246
In some cases, the happiness or unhappiness of a parent proposing relocation may be an important consideration. Whilst clear evidence about this is preferable, sometimes happiness is a state of mind to be inferred from the evidence eg based on reasonable inferences. See Taylor & Barker[14]. However, the Act does not prescribe parental happiness, as such, as a factor in determining the best interests of a child: see the dissenting judgment of Faulks DCJ at paragraph 127. In any event, if parental happiness is a relevant consideration, it must surely be that the happiness of both parents is relevant.
[14] Ibid at 106 and 109
In some relocation cases, s.60CC(4) may be relevant. However the focus is always on a person’s capacity to parent. The Full Court in Goldrick & Goldrick[15] described it in these terms at paragraphs 40 and 41:
[15] [2007] FAMca 1246
40. The full terms of the subsections are:
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
41. In our view, it is clear that, while the impact of any parent’s relevant actions should, if the evidence permits, be identified, the references to “fulfilled, or failed to fulfil responsibilities as a parent” and “…facilitated, or failed to facilitate” demonstrate that the actions of each parent in the relevant respects are to be evaluated for something beyond consequence alone; namely what those actions say of the person’s capacity to parent.
The framing of orders in relocation cases is important for the reasons set out by the Full Court in Sampson & Hartnett [2007] FamCA 1365 at paragraphs 9-14:
9. In many cases, a primary parent (a reference to the parent with whom a child has primarily lived before the litigation) will wish to relocate, but will say that she/he will not do so if the Court rules that relocation should not occur.
10. In another “type” of case, the primary parent may indicate an intention to relocate with or without the child, or prevaricate about his or her intention. In either of these type of cases, a court may conclude that a child should stay in a particular location. If the primary parent wishes to also stay, then the child lives with that parent. If the primary parent wishes to leave, the child lives with the other parent. Such rulings will properly include findings that each of the particular proposals is in the best interests of the child, if the circumstances activating the proposal come about. In these two “types” of case, directing an order to the issue of where the primary parent lives serves little or no purpose. The orders are better directed to parental responsibility for arrangements for a child, hence orders that a parent not remove a child from a nominated town; or an order that a parent return a child to a particular location, together with orders that if the parent also returns to that location, the child live with that parent; or if that parent does not return, the child live with the other parent.
11. While such orders may indirectly affect a parent’s freedom of movement, they do not direct a parent to discharge parental responsibility in a manner or in a location which is not one of the options put forward by one party at least, nor do they deprive a parent of choice about where he or she lives.
12. Consequently, such orders do not expose a parent to sanction if that parent chooses not to continue the anticipated parental involvement post-judgment. For example, the primary parent restrained from changing the residence of a child from a particular location following a case in which that parent proposed remaining as primary parent in such an event, is nonetheless free to hand over the child to live with the other parent. In other words, the primary parent, who by order will retain that position depending on his or her choice about where he or she lives, will “choose” the degree, if not the location of parental involvement.
13. Orders so limited in their impact on the freedom of choice of parents about the location, manner and degree of parental involvement are consistent with the law’s approach to family life. For example, leaving aside responsibilities imposed by criminal law, which apply to a parent whether separated or not, when parents separate, each is generally regarded as free to leave a child with the other to discharge the primary parenting role. No court order is necessary. As seen in the example above, even if after a contested hearing, orders establish a primary residence for a child with a particular parent, that parent is “free” to hand the child over to the other parent.
14. Not surprisingly, orders going further than the types so far discussed in their impact on the choice of a parent about the degree and/or location of his or her parenting have traditionally been avoided. There have probably been many reasons for this; concerns about power, whether intrinsically and/or from the shadow of s 92 of The Constitution; concerns about, even if within power, the extent to which a court ought dictate to parents the manner and place in which they discharge their responsibility; and consequent issues about enforceability.
The Full Court in Sampson & Hartnett[16] concluded at paragraph 25 that power exists to make orders effectively, though indirectly, restraining the movement of a parent. This means that the Act does empower orders to directly restrain a parent from relocation or to directly require relocation: paragraph 33, but see the discussion of the principles behind this conclusion at paragraphs 19-32. That power is found in s.114(3) of the Act, as the Full Court concludes at paragraphs 57-59:
57. If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at leats once existed. This contrasts with a person who may not wish to go some where and therefore the order is much more of an imposition on that person’s freedom.
58. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
59. The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.
[16] [2007] FamCA 1365
Before making an order requiring a parent to relocate, the court must be satisfied that there is capacity to do so. The Full Court in Sampson & Hartnett[17] described this at paragraph 75:
75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
[17] ibid
In a minority judgment, Kay J doubted whether there is a power to require a parent to relocated other than in the most exceptional circumstances[18].
[18] I bid at 121
Expert Evidence
I had the benefit of two family reports in this matter. The first one was prepared by Family Consultant Starling and is dated 20 February 2007. The second one was prepared by Family Consultant McMahon and is dated 22 October 2007. The second report was needed to take into account the changes to the family brought about by the mother’s move to Canberra in March 2007. Ms McMahon was examined in relation to the second report.
Both reports record the mother’s concerns about family violence perpetrated by the father, and his excessive consumption of alcohol. Each report contains observations of the children that indicate that they have either witnessed conflict between the parents, or are aware of it. Both reports indicate that there is a strong bond between the children and each parent.
At the time of the first report the children were in an equal shared care arrangement, and the continuation of this was recommended. The Family Consultant was satisfied that the children had been exposed to family violence, and expressed concerns about this, especially as it had impacted on B. The Family Consultant also expressed concern about the level of conflict between the parents, and also about the father’s alcohol dependency:
42. The major factors in this matter appear to be the potential loss of spending substantial time with one parent, the impact of the children changing schools and the impact of the father’s drinking on his capacity to parent the children. Provided that the father is found to be able to minimise his drinking, then it is the Family Consultant’s view that the children will suffer a lesser loss if they remain living in [Y]. If the mother is to move to Canberra, the children are likely to grieve the loss of their close relationships with their mother and would benefit from regular (as often as the children like) communication through email and telephone.
The recommendations made in the first report were as follows:
44. It is recommended that both parents be responsible for the longer term decisions regarding the children.
45. It is recommended that should the parents live within a radius that can support an equal time arrangement, then B and S should live equally between their parents.
46. It is recommended that should the mother relocate to Canberra, B and S remain in [Y] with their father and spend time with their mother alternate weekends and two thirds of the school holiday periods.
47. It is recommended that the father attend drug and alcohol counselling for the purposes of receiving education about safe and responsible levels of consuming alcohol.
As indicated above, by the time of the second report, the mother had been in Canberra for about six months. The second report records the mother’s ongoing concerns about family violence, and raised new concerns about the father obstructing her time with the children. Communication continued to be highly problematic as between the parents. The Family Consultant noted that the children were struggling with the absence of their mother, but were nonetheless strongly attached to both parents. She was critical of both parents for contributing to distressing events, and was concerned about the risk that the father would not facilitate the children’s ongoing relationship with their mother.
The Family Consultant did not believe that the father’s proposal for equal shared care was realistic in the circumstances. She was clearly concerned about the unsatisfactory nature of the current arrangements:
34. It is not in the children’s best interests that these arrangements continue. It is clear that an equal time arrangement is not a possibility, given the distance between the parents’ homes and the difficulties in the parental relationship. Given the above, the only option for the care of the children is that they live with their mother in Canberra. Mr Jeffreys will obviously have difficulty with the children moving to Canberra and may benefit from some professional assistance to help him through the changes which such a move would mean for him. The children are likely to miss their father and his involvement in many aspects of their every day life. It is an option, however, that will hopefully bring about some resolution to, or at least some diminution in, the conflict between the parents. Ms Jeffreys, as she has been their primary carer for most of their lives, should be able to support the children through the difficulties which B and S may experience with a move to Canberra. Ms Jeffreys might also benefit from professional assistance to assist her in this.
The second report thus recommended:
37. It is recommended that the parents continue to have equal shared parental responsibility.
38. It is recommended that the children live with their mother in Canberra.
39. It is recommended that the children spend time with their father each alternate weekend from the conclusion of school on Friday afternoon until 5pm on Sunday afternoons.
40. It is recommended that the children spend all the mid year school holidays and half the summer holidays with their father.
41. It is recommended that the father be provided with all information relevant to the schooling and sporting activities.
Mr David’s examination of Family Consultant McMahon was meticulous. On behalf of the father he challenged some of the assertions in the report about the father’s behaviour post-separation. He also elicited an acknowledgment that the report does not really address the impact on B and S of a change in their residence to Canberra. As the Family Consultant explained, however, the children had already experienced significant change in the absence from their daily life of their mother, and so her focus was on the children’s relationship with their parents.
The Family Consultant’s evidence, both in written and oral form was available before the parents themselves gave evidence and were cross-examined. As it turns out in this case, the evidence before me in fact confirms the concerns expressed by both Family Consultants about: the high level of conflict and low levels of communication between the parents; the family violence perpetrated by the father; issues associated with the father’s consumption of alcohol; the father’s inability to foster an ongoing relationship between the children and their mother. Having regard to these matters, I accept the recommendations contained in the Family Report prepared by Family Consultant McMahon.
Meaningful relationship
Despite all the issues in this case, and all that B and S have been exposed to, it is beyond doubt that they have a meaningful relationship with both parents. This finding is apparent from the evidence of the Family Consultants and the parents themselves. The meaningful relationship between the children and their mother had survived the significant changes that took place on March 2007 when the mother moved to Canberra, and an equal shared care arrangement was converted to a fortnightly weekend and school holiday arrangement. I am also satisfied from the evidence that the quality of the meaningful relationship between the children and each parent will continue which ever proposal is adopted in this case.
Protecting children from harm
One of the main limbs of the mother’s case is that both she and the children had been exposed to family violence perpetrated by the father over a long period of time. She asserted that this violence was often but not always fuelled by alcohol. Her case was that these historical matters explained the current high level of conflict, low levels of communication, and the need to implement a parenting arrangement that provided the mother with geographical distance from the father. Her case was that the shared care arrangement was imposed on her, rather that being something she agreed to freely.
The mother’s evidence about family violence and the father’s drinking was extensive and is contained in her affidavit filed 19 September 2007. The main evidence that she relies on can be summarised as follows:
| Paragraph | Date | Short Description |
| 10 | March 1991 | Argument leading to father putting elbow through bathroom wall. |
| 22 | 1998 | Father involved in a fight at Rockhampton when he was drunk resulting in charge for malicious damage. |
| 29 | June 1997-1999 | Numerous occasions of domestic violence while in Canberra with police attending 2 or 3 times. |
| 35 | 2000 | Father becomes drunk whilst attending best man’s party resulting in a physical altercation with best man. |
| 36 | Easter 2001 | Father comes home at 1.00am drunk and puts towbar through garage wall. |
| 38-39 | 24 August 2001 | Father drinking alcohol, argument develops, and assaults mother whilst she is feeding Sarah. Police called. Mother escapes. Father locks himself in house with children. Mother stays at refuge with children then moves to Queensland for three weeks to stay with her parents. |
| 51-59 | 15 July 2004 | Father assaults mother during an argument, while children in the bath. |
| 71 | August 2006 | Mother verbally abused by father whilst he is drinking, leading to assault. |
This summary does not do justice to the mother’s evidence about these incidents. It is simply a convenient way of summarising these events. Many of these events are corroborated by documents annexed to her affidavit including medical reports, statements given to police, complaint and summons (AVO).
One of the worst assaults was on 15 July 2004. Annexed to the mother’s affidavit is her letter to the NSW Police Service dated
3 August 2004where she seeks to withdraw the charges arising out of this incident. Her evidence is that she was prevailed upon by the father, in an emotional sense, to withdraw the charges.
The father’s affidavit evidence deals only with the incident on 15 July 2004. He deposes in paragraph 14 of his affidavit filed 19 October 2007 that “we had a violent argument” and that “I was charged with assault”. He gives the subsequent history of police proceedings and attaches an unsigned document entitled “Set of Facts” which, accordingly to paragraph 16 of the father’s affidavit, was tendered in evidence at Wollongong Local Court on 21 January 2005 in the context of a plea of guilty resulting in the charge against him being dismissed under s.10 of the Crimes (Sentencing Procedure) Act. On reading this document I was immediately struck by the significant contrast between it and the mother’s evidence of this event, and the effort made to implicate the mother as the aggressor in this incident.
The mother was vigorously cross examined by Mr David about these issues. He was able to establish the dissonance between the mother’s allegations about the father’s violence and drinking on one hand, but her willingness to nonetheless share the care of the children with him, on the other hand. The cross-examination revealed that some evidence was not in the mother’s affidavit that one might have otherwise expected to be there. The mother was robustly challenged about her retraction of the charges arising out of the 15 July 2004 incident, but I found her evidence in this regard quite clear, cogent and compelling. Her evidence is that the father seduced her, cajoled her, and harassed her into taking the action she did. The mother accepts, however, that she was an active participant in that incident, but she insists that “I defended myself”. Despite being challenged about the other incidents of violence alleged by her, she insisted that her evidence was correct. The cross examination of the mother made little impact on her evidence. However, the cross examination did satisfy me that the mother was capable of, and indeed had acted with, verbal aggression. The evidence of the video recording of the mother at the former matrimonial home on the day of settlement certainly demonstrated this to me.
The father gave evidence in chief, by leave, responding to the mother’s evidence about violence and drinking. Depending on the incident in question his evidence can be summarised as follows:
a)There were many arguments.
b)The mother got physical and he had to defend himself.
c)He “restrained her” on several occasions.
d)He drinks and occasionally gets drunk.
e)He picked her up and took her to the bedroom.
f)The mother and children did go to the refuge and to Queensland.
g)There was violence on 15 July 2004.
h)He did plead guilty to the assault.
i)He did not harass the mother into retracting the charge.
Ms Tonkin cross examined the father about the mother’s allegations. He agreed that from time to time he drank alcohol to excess, indeed becoming drunk. He denied that this made him aggressive – his evidence was that drinking alcohol relaxed him. He agreed that there was an incident early in the relationship when he punched the mother in the eye, thus giving here a black eye, but he insists that it occurred “after she was at me for 20 minutes”. He agrees that after an argument with the mother in 1991 he put his elbow through the shower wall or screen, but denies it was a violent argument, or that he was drunk. He agrees that the relationship was turbulent, with several separations and reconciliations. He says he was quite distraught at times when the relationship broke down, and drank more during the separations. He argued that the malicious damage incident in Rockhampton was because he had been drinking. He agrees that in 2000 whilst attending a party held by his best man they had a violent disagreement wherein each had grabbed hold of the other’s throat, and this was contributed to because he was upset and drunk. He denies that he has ever had, or has now, an alcohol problem. He asserts that the mother is always the aggressor, he is never the aggressor. He agrees there was an incident on 24 August 2001 and asserts that he had to “manhandle” her in order to protect himself from her. He agrees the mother was injured at this incident, but that was because she hurt herself getting out of the window to the room that was locked. He agrees there was a further incident on 15 July 2004. He asserts that he held her down on the lounge. From his perspective, it was all about “me restraining her, I was never the instigator” and “it take two to argue. I held my ground. I restrained her. I pushed her away from me”. He also agrees that he did push the mother up against the wall.
Having regard to all of the evidence, and on particular close observation of both parents in evidence, I am satisfied that the incidents alleged by the mother in fact all did occur. I am also satisfied that many of the incidents took place in the presence of the children. Both parents acted inappropriately. The mother was verbally aggressive, and possible physically aggressive. The father was physically aggressive. He is clearly a bigger, stronger man. Neither had the insight or presence of mind to withdraw before these events escalated from verbal to physical arguments. Even though the mother’s actions probably precipitated this escalation to physical violence, the father’s physical violence is simply unacceptable. I do not accept his protestations of self defence. I find that, more often than not, his excessive consumption of alcohol was an active contributor to these events. It must have been terrifying for the children to witness some of these events, and I accept that B in particular is affected by this.
The parents were caught up in a turbulent relationship that seemed to easily move from intimate love to abject terror. It was a relationship the mother tried to escape several times, and finally did at separation.
What are the implications of these findings in this case? Past family violence casts a long shadow in parenting proceedings. I accept the mother’s desire to create a geographical distance between the father and herself. I accept that the high levels of conflict and low levels of communication have their genesis in the historical violence that has occurred. The father has not been a good role model for the children in the past. His actions potentially send the message to them that physical violence is an acceptable way to resolve disputes. Even the mother has not been a good role model because her verbal aggression sends the same wrong message to the children. I accept, however, that she was caught up in a violent relationship from which she found it almost impossible to permanently extricate herself. I don’t think there is a risk of future violence between the parents provided there are clearly defined parenting orders in place, and there is geographical distance between them. In this regard, the father’s proposal for a shared care arrangement predicated on the mother being geographically proximate to him and the children is simply unrealistic, impractical, and not in the best interests of the children because of the matters set out above. As I said before, past family violence casts a long shadow in parenting proceedings. Potentially long after the parents have effectively dealt with their issues and avoided the risk of reoccurrence, the fallout of high conflict, low trust and communication continue to influence the course of the future.
Children’s views
There is evidence from both parents about what they each assert the children have been saying to them. I do not accept this evidence. I place no weight whatsoever on what the children are said to be saying. They are far more likely to be saying what they think each parent wants to hear, and this is, in my opinion, one of the clearest manifestations of two young children who are very much caught up in the conflict between their parents.
Children’s relationships with parents and others
The children enjoy good, strong relationships with each parent, and the other significant others in their lives including grandparents etc. There is no issue about this in this case.
Willingness and ability to facilitate and encourage continuing relationships
This is another major issue in this case. The mother’s case was presented on the basis that the court would be concerned about the father’s willingness and capacity in this regard.
Indeed I am not concerned about the mother’s willingness to ensure that the children spend time with their father should they live with her in Canberra. The evidence indicates that the mother has done so in the past, perhaps even when it may have been quite understandable that she not do so, eg when fleeing the father’s violence. She agreed to shared care in the past. Until this year she took employment in a way that ensured the children spent time with their father. I am concerned, however, about a number of incidents that have occurred in the last 12 months in particular that suggest a reluctance, or lack of insight on the father’s behalf, about facilitating the children’s relationship with their mother. Regrettably some of these incidents also reflect poorly on the mother.
The first relevant incidence of concern took place on Saturday
24 March 2007. The mother’s evidence about this incident is set out at paragraphs 95-98 of her affidavit. The father does not give specific evidence about this issue but at paragraph 33 makes the statement: “since April 2006 the arrangements have generally worked without any particular difficulty. There have been a number of problems and minor disputes but these have all been resolved”. The contrast between the parents’ affidavit evidence about this period is extraordinary. Potentially serious incidents have been glossed over by the father and I was left wondering about his insight into the effect of these incidents on the children.The mother was cross-examined about the incident on March 24. Her evidence was that, in effect, the father withdrew his invitation to go to his house during a time when the children were with him (for the purpose of dropping things off to the children) on very short notice so she came anyway. I find that the mother probably did know by the time she arrived there that the father did not want her there, and that there was likely to be an incident if she nonetheless went ahead anyway. The father was cross-examined about this incident. He clearly knew she was coming to drop off some items for the children. His evidence was that the mother said she would drop items off on the front balcony of the house and would not disturb them. Assuming that is correct, he nonetheless agreed that matters rapidly degenerated into an incident that the father agrees was distressing for the children. He portrayed the mother as an aggressive woman insisting on seeing the children on his time, even though she was simply dropping items off. I find however, that is was more likely than not that the father resolved to make sure that under no circumstances would the children spend time with their mother during his time. He was so determined to do this that making his point was far more important to him than the potential trauma suffered by the children in witnessing this incident. He could have backed off. He should have backed off. In the overall scheme of things allowing the children a few minutes with their mother would have done no harm. His insistence on physically stopping the mother shows a breathtaking lack of insight and good judgment. It manifests an attitude towards the mother that is disconcerting. It engenders little confidence in me that he has the capacity to foster an ongoing relationship between the children and the mother. His lack of insight is almost matched by that of the mother. Whilst I accept her version of this incident she showed deplorably poor judgment. She too should have backed off once she realised that the incident was escalating. This incident yet again demonstrates how inappropriate an equal shared care arrangement is for this family.
Another incident of concern took place on Thursday 24 May 2007. The mother deposes to these events in paragraph 100 of her affidavit.
In short, she attended to collect the children as agreed on a Thursday night, but the father took the children to see a movie instead. In the father’s cross-examination he conceded that he was aware that the mother was going to collect the children at the stated time and place. He asserted that, in fact, it was his idea for her to spend more time with the children. He thought, however, that her desire to spend more time was motivated by child support considerations – a very strange thing to say if it was his idea. He acknowledged that he took the children to the movies because he was angry and believed that the mother was motivated by child support considerations. When pressed about this event, and its possible impact on the children, his response was to the effect “it was a knee jerk reaction. I’m not proud of it. It’s a knees jerk reaction that she was fishing for”. I find that this incident was hardly a “knee jerk” reaction. The father collected the children from school and after school care and deliberately took them to the movies instead of meeting their mother. It demonstrates once again his total lack of insight into the impact of these types of events on the children. It demonstrates a very poor attitude as a parent. It gives me little confidence about his ability to foster a good relationship between the children and their mother. His evidence also gives me an insight into his perception of the mother. His evidence implies that he feels that the mother manipulated this incident to her advantage. Even in this context the father seeks to shift blame and responsibility for his actions to the mother. Regrettably this aspect of the father’s evidence was apparent at several times during his evidence.
There are other incidents that support my concern in relation to this consideration. In February 2007, the father refused to handover the children at [A] and insisted on handing them over at [B] even though this meant the children, who were already going to be having a late night, had an even later night. On July 15 2007 he took the children from school that weekend to prevent the mother from having any time with the children. I will not provide details of these incidents. I accept the mother’s evidence in relation to them. The father’s explanation in cross-examination for these events was totally inadequate.
Effects of change on the children
The father’s proposal of course results in the least change for the children, but for the reasons I have set out above, the father’s proposal is unrealistic, impractical, and not in the children’s best interests.
The children will experience change if they move to Canberra, but I am satisfied that the mother has the capacity to provide the physical and emotional support the children need if they move to Canberra.
The current parenting arrangement is not satisfactory. At paragraph 34 of the second family report the Family Consultant strongly urged that it be changed. I agree that the evidence points quite convincingly to that. On balance, I am satisfied that even though there will be change for the children, they will cope with it.
Practical difficulty or expense
Both parents are already coping with an arrangement whereby they share trips between Wollongong and Canberra. There is no evidence to indicate that the children aren’t coping. Expense has not arisen as an issue. This is not a consideration that impacts on any of the proposals advanced by the parents.
Capacity to provide for the needs of the children
In this case provided both parents were able to operate totally independently of each other, they each would have the capacity to provide for the needs of the children. If each were the only parent, it is quite likely that they would be above reproach as parents. The reality is, however, that the mother and father need to co-parent B and S, but seem incapable of doing so because of the issues referred to in this judgment. Because of these factors equal shared care is not feasible and in my opinion is positively contra-indicated. The proposal that best fits the respective capacities of the parents to provide for the needs of the children is the mother’s.
Attitudes to parenthood
I do not wish to traverse the evidence again. By his actions and inaction the father has demonstrated a poor attitude to his responsibilities as a parent. The evidence indicates that the mother’s attitude is much more positive and focussed on the best interests of the children.
Family violence matters
Again I do not intend to traverse the evidence in relation to this issue. The children have witnessed family violence in the manner described in this judgment. The best way to protect the children from such violence is to separate the parents from each other, provide definite boundaries in terms of parenting orders, but nonetheless allow the children and the father to enjoy a meaningful relationship free from the risk of any abuse or harm.
Equal time or substantial and significant time?
For the reasons I have already set out above, equal time is neither in the best interests of the children, nor reasonably practicable. The father’s proposal in this regard cannot be in the children’s best interests. The effect of the mother’s proposal is to give to the father substantial and significant time. This is clearly in the children’s best interests as well as being reasonably practicable.
Any other matters
In my opinion the order that is least likely to lead to further litigation is the mother’s proposal. I am satisfied she will continue to facilitate the father’s time with the children. On the father’s proposal I have too many doubts about his commitment to facilitating the children’s time with their mother. His proposal is more likely to lead to contravention applications and possible further litigation in the future.
The mother’s proposal for the children to spend school holiday time with their father is half of each school holiday period. The Family Report, however, recommends all of the mid-year school holidays and half the summer holidays. I believe the school holidays should be based on the Family Report. Despite my criticism of the father, he clearly loves his children, and has a good relationship with them. They clearly love him too. The changes I propose will lead to them missing their father. It is appropriate, therefore, that they have more school holiday time with him if possible.
The mother also seeks two mutual restraining orders: one that relates to the consumption of alcohol to excess whilst the children are with them; the other that relates to keeping pornographic or x-rated material on the premises. I had evidence before me to justify the making of the former order, and I do so. I had no evidence about the issue of pornographic material. It is put as a mutual restraint. I will make the order as it seems reasonable, but I will grant leave to the father to re-list before me within 28 days if it is an issue for him.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 18 December 2007