Knight & Knight
[2016] FamCA 1085
•19 December 2016
FAMILY COURT OF AUSTRALIA
| KNIGHT & KNIGHT | [2016] FamCA 1085 |
| FAMILY LAW – PARENTING – RELOCATION – Children – Where mother seeks to relocate from the central west of NSW to the central coast of NSW with the three children – Where parental relationship conflictual – Where children have significant social capital in their present town and its rural environment – Where both parents significantly involved in the children’s day to day lives and activities – Where consideration as to the best interests of the children – Where best interests should be as to all of the children not just one of the children – Where not in best interest to allow relocation – Where older children have wishes as to time with the father – Where such wishes should be given some weight in the circumstances – Where father has rigid parenting and personality style – Where appropriate for children to continue with family therapy as needed. |
| Family Law Act 1975 (Cth) ss 60B , 60CA, 60CC. 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA, 61DA(2), 61DA(4), 65DAA, 65DAA(6), |
| AMS and AIF (1999) 24 Fam LR 756 |
| APPLICANT: | Ms Knight |
| RESPONDENT: | Mr Knight |
| FILE NUMBER: | DUC | 225 | of | 2015 |
| DATE DELIVERED: | 19 December 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Dubbo |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 7, 8 and 9 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms De Vere |
| SOLICITOR FOR THE APPLICANT: | Osborne Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford Simpson |
Orders
That the mother and father have equal shared parental responsibility for the children B born … 2003, C born … 2005 and D born … 2007.
That the children live with the mother.
That the mother be and is hereby restrained from relocating the residence of the children from the E Town, NSW area.
That the children spend time with the father as agreed in writing between the mother and father such writing to include SMS or email communication and in default of agreement as follows:
(a)As to the child D during school term each alternate week commencing from after school Monday and concluding before school the following Monday with such week to commence in the first week of each school term during such period as the child continues to attend school in J Town and upon the child commencing school in E Town then during school term each alternate weekend from after school Friday to before school Monday commencing on the first weekend of each school term.
(b)As to the child C during school term each alternate weekend from after school Friday to before school Monday commencing on the first weekend of each school term.
(c)As to the child B during school term each alternate weekend from after school Friday to before school Monday commencing on the first weekend of each school term provided always that the mother and father shall have due regard as to the child’s reasonably expressed wishes as to spending other or further time with the father.
(d)As to all of the children for the first half of each midyear school holiday period in each odd numbered year and the second half in each even numbered year commencing in odd numbered years at 9.00am on the first Saturday of such period and concluding in even numbered years at 6.00pm on the day before the resumption of school term.
(e)As to all of the children during the Christmas school holidays for the first one half of each such school holiday period in each odd numbered year and the second half in each even numbered year commencing in odd numbered years at 9.00am on the first Saturday of such period and concluding in even numbered years at 6.00pm on the day before the resumption of school term with the midpoint to be at 6.00pm on the day closest to the midpoint day.
(f)On the Father’s Day weekend from after school Friday to before school Monday if not otherwise spending time with the father provided always that the children’s time with the father is suspended on the Mother’s Day weekend.
That for the purposes of the children’s time with the father where changeovers are not at school such changeovers shall be as agreed in writing between the mother and father such writing to include SMS or email communication and in default of agreement at the F Town Café.
That the mother and father shall do all things necessary to continue the engagement of the children and themselves as appropriate with Ms G, Psychologist or such other health professional as reasonably recommended by Ms G and ensure that the children attend all appointments made by Ms G for them or any of them and that the mother and father have due regard to the recommendations and advice of Ms G as to the children’s time with each of them or the children’s wishes as to any issue significant to their welfare as expressed by the children or any of them to Ms G or other health professional reasonably recommended by her.
That both the mother and father are at liberty to travel with the children overseas at times that the children are to be with each of them provided that they shall provide to the other details of any flight bookings and travel arrangements not less than one calendar month before departure and provide to the other details of arrangements for the children to have reasonable telephone or other electronic communication with the other parent whilst away.
That both the mother and father are at liberty to attend on occasions significant to the welfare of the children including occasions relating to school and education, sport, extracurricular activities, religious education or events and other occasions significant to the welfare of the children.
That the parent with whom the children are with shall at all times facilitate the children and each of them having reasonable telephone or other electronic communication with the other parent.
That the mother and father shall promptly inform the other by phone or other electronic communication in the event that any of the children requiring medical attention while in their respective care.
That the mother and father shall ensure they provide to the other details of their mobile and landline phone numbers and email address and promptly inform the other of any change to same within 24 hours of such change.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Knight & Knight has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: DUC 225 of 2015
| Ms Knight |
Applicant
And
| Mr Knight |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings commenced by the applicant mother by application filed 17 July 2015.
The significant issue for determination is the mother’s application to be permitted to relocate the permanent residence of the children to the central coast area of New South Wales and to be permitted to enrol the children at the H School.
The subject children are B born in 2003, C born in 2005 and D born in 2007.
The mother at trial in summary sought primary orders that:
a)the mother and father have equal shared parental responsibility for the children;
b)that she be permitted to relocate as referred to above;
c)that the children spend time with the father as agreed and in default of agreement on the third and seventh weekend of each school term from after-school Friday until before school Monday with such time to be spent on the Central Coast area of New South Wales and for the first 10 days of the school holiday periods at the end of the mid-year school terms and for three weeks in the Christmas school holiday period;
d)otherwise the mother sought specific issues orders as to time on the children’s birthdays, mother’s day, father’s day, attendance at sporting events and other extracurricular activities and telephone contact.
Otherwise at trial the mother sought orders in the alternative that provided for:
a)the mother and father to have equal shared parental responsibility for the children;
b)for the children to live with the mother;
c)that the mother and father do all things necessary to enrol the youngest child at the South E Town Primary School for the 2017 school year;
d)that the children spend time with the father as agreed and in default of agreement during school terms from after-school Friday to before school Monday on each alternate weekend and for half of each school holiday period;
e)otherwise the mother sought specific issues orders as referred to above.
At trial the mother relied upon her affidavit filed 7 October 2016, the affidavit of her partner Mr I filed 7 October 2016 and the affidavit of Ms G, psychologist filed 7 October 2016.
The father filed his Response to the mother’s Initiating Application on 11 August 2015. At trial he sought parenting orders that provided in summary as follows:
a)that the mother and father have equal shared parental responsibility for the children;
b)that both the mother and father be restrained from relocating the children’s residence from outside of the E Town/J Town area;
c)that during school term the younger two children live in a week about arrangement with changeovers to occur on Monday after school;
d)that the eldest child live with the mother and spend time with the father during school term each alternate weekend from after school Friday until before school Monday;
e)that the children spend half the school holidays with each parent;
f)the father sought various specific issues orders in relation to Easter, Mother’s Day, Father’s Day, children’s birthdays and telephone contact.
At trial the father relied upon his trial affidavit filed 17 October 2016, an affidavit by his mother the paternal grandmother, an affidavit by his sister, an affidavit by Mr K who works on the father’s property, an affidavit by a friend Ms V, and an affidavit by his medical practitioner Dr L. Only the paternal grandmother was required for cross-examination.
Context
The mother is aged 40 and the father is aged 42.
The mother is a teacher but ceased teaching when the eldest child was born in 2003. Thereafter she has been the primary carer for the children but she acknowledges that the father has always been an involved and devoted father.
The mother has a Diploma in a health discipline but proposes to return to casual work as a public servant with such work available to her in 2017 both on the Central Coast of New South Wales or in the E Town area should she remain. She has no wish, she says, to return to working full time.
The father was initially employed by his father as a manager. In July 2006 the father was gifted two rural properties by his father and thereafter the mother and father operated a farming partnership. The father has continued to run the farming operation since separation.
The property on which the parties and the children resided during cohabitation is about 80 km from E Town, about an hour’s drive.
The mother and father commenced cohabitation in late 2000/early 2001, married in 2002 and separated under the one roof in mid-January 2015 with final physical separation in June 2015 when the mother left the then matrimonial home that was situated on a property some distance from J Town New South Wales.
The eldest child in 2009 commenced kindergarten at the local private school in J Town.
The parties had a previous separation from April 2010 at which time the mother relocated with the children to her parent’s home in K Town in northern New South Wales.
The parties reconciled in October 2010 with the mother and children returning to J Town with the two older children returning to the local private school. The youngest child commenced at the local private school in 2013.
In 2013 the eldest child B was accepted into the advanced class at the E Town Primary School and he commenced at that school at the beginning of the 2014 academic year.
Over the period of cohabitation the mother and father have had various discussions and made various arrangements to enrol or reserve a place for the children at an older age at various private schools in Sydney.
In 2014 at a time when the mother concedes the marriage was in difficulties the parties discussed the prospect of B attending boarding school and the mother moving to Sydney with the two younger children. The mother and father discussed the H School at L Town as a schooling option for the children.
The father asserts that these discussions particularly in late January 2015 after separation under the one roof were in the context of his expectation that there would be a period where the family would live on the coast together or at worst there be a separation for a period of about 12 months and the prospect of reconciliation. The father says that with this in mind the child B undertook a scholarship exam at H School in mid-February 2015 and he and the mother signed enrolment papers for all three children. Thereafter the relationship deteriorated even further resulting in a final physical separation on 19 June 2015 with the mother at that time moving into E Town and obtaining rental accommodation. Subsequent to what turned out to be the parties’ final separation, plans for the Central Coast disintegrated into disarray and disagreement.
It is clear that in the few months prior to final separation both the mother and father engaged the children in issues in dispute between them with the children also being exposed to the parties’ confrontational behaviour and allegations the parties made about each other. A significant issue for the father was the mother’s new relationship with her present partner, the father being of the view that the relationship commenced before separation.
The father unnecessarily involved particularly the older child in the conflict. The father has accessed the older child’s phone and downloaded messages between the child and the mother to his computer. In oral evidence the father agreed that his conduct may have been a problem for the teenager but he did not think about it. He did more for his needs than the child’s.
The father has otherwise been disrespectful and offensive to the mother over the issue of her new relationship.
Following final separation the mother, father and the children engaged in counselling with Ms G, psychologist. The parties were in disagreement initially in relation to parenting arrangements but engaged in mediation and agreed on a shared care arrangement on a week about basis for all three children. The mother acknowledges that Ms G is seen by the children as someone independent that they can engage with and that feedback from Ms G has been useful for her.
At the time of final separation the child B was in Year 6 at E Town, the child C was in Year 4 at J Town and the child D was in Year 2 at J Town. The parties and the children were engaged in significant travel in ensuring that schooling arrangements remained in place.
Subsequent to final separation, the parties’ relationship was such that the mother mostly communicated with the father by text message.
By late 2015 the eldest child was expressing some reluctance to continue the existing shared care arrangement. In November 2015 the child C was accepted into the Year 5 advanced class at E Town Primary School to commence in Term 1 2016.
In December 2015 the mother vacated her rental property and moved into the parties’ investment property at M Street, E Town.
In January 2016 the eldest child commenced Year 7 at high school in E Town and commenced to spend alternate weekends only with his father. The child C at that time commenced in E Town at the E Town Primary School in Year 5.
With the two youngest children still in a week about arrangement and the eldest child spending alternate weekends with the father travel arrangements are overall arduous for both the children and the parents.
The mother complains that during 2016 winter sports season the child C had sporting activities in E Town both on the weekend and for training midweek and on occasions notwithstanding he was supposed to be residing with the father in the week about arrangement he would stay at the paternal grandmother’s home in E Town overnight instead of being returned to his mother’s.
Otherwise the children’s various sporting activities have ensured that both parents have remained engaged and are obligated to significant travel to continue the children’s participation. Both parents attend sporting and other activities notwithstanding the children may otherwise be in the care of the other.
The mother has no extended family in the E Town area, with her parents residing on the New South Wales north coast at K Town, a significant distance from E Town and also a significant distance from the mother’s proposed residence on the Central Coast area of New South Wales.
The children spend time with the father’s extended family including the paternal grandmother who resides in E Town and is significantly engaged in assisting the father in transporting the children and the paternal grandfather who resides at N Town about 90 minutes by car from E Town. The father’s brother and his family, his wife and two children aged 10 and eight, live on the property adjoining the property worked by the father. The father’s sister and her family, her husband and two children aged four and two reside on a rural property about 20 km from the father’s property. The children have regular engagement with these members of the father’s extended family.
The youngest child D has established friendships at his current school at J Town (at which his father attended) and he engages in sporting activities with those friends and his cousins. It is the father’s expectation that the child will also attend E Town Primary School commencing in Year 5 in 2018. Since separation the paternal grandmother has been significantly involved in travel arrangements for the children to and from E Town.
The child C has friends from his former school in J Town and in his current school in E Town. He has been elected to the school representative council and has been nominated for school captain in 2017.
The eldest child has established friendship with, according to the mother, “great friends” at his high school and was school captain at the E Town Primary School. He is a member of his high school debating team.
There is no issue between the parties that they are both extensively involved in the children’s schooling and extracurricular activities notwithstanding with whom the children might be residing from time to time. The children have grown up on the father’s rural property and to the father’s observation have enjoyed a rural lifestyle and activities on the farm, although it appears that the eldest child is less enamoured with the rural lifestyle than his younger brothers.
The mother regards herself and the father as having positive relationships with the children but she is cognisant of their different parenting styles. The children, she says, do not see the father as having a more disciplinarian style than her.
Yet notwithstanding both parents’ extremely focused engagement in the schooling and other activities of the children, they have either willingly or unwillingly engaged the children in their conflict. To the credit of both parents the children have been engaged with Ms G psychologist since shortly after final separation. Her engagement with the children is referred to in detail below.
The mother’s circumstances and proposals
The mother presently resides in the property at M Street, E Town that she will retain as a consequence of the property settlement between herself and the father. The property comprises comfortable accommodation for herself and the children with the two youngest boys sharing a bedroom.
The eldest child is progressing well at school in a selective class and is achieving at a high level academically. The child C is also progressing well at school and his placement in the advanced class has, it appears, enhanced his academic achievements. The youngest child is also progressing well at school achieving above average results.
The children are engaged in significant sporting activities in the E Town area with B playing soccer, C playing hockey and the youngest child playing rugby league. The eldest child has represented his school at regional and State swimming as well as in track and field. He is engaged in debating at a state level and the school choir and band. C has represented his school in swimming and represented his town and region in representative hockey. The youngest child was his school’s juvenile swim champion in 2014.
The mother observes that the children have a warm relationship with her partner who spends a period of some days each month with her and the children in E Town.
To the mother’s observation the eldest child B is deriving significant benefit from his ongoing engagement with the psychologist particularly in relation to managing his relationship with his father. The father to his credit has also engaged with B in that counselling.
The mother is of the view that the current shared arrangement is not in the child C’s best interest and that he would be more settled residing with her and spending time similar to B with the father. The child, she says, complains about the father’s anger management and physical discipline. The mother is critical of occasions when in the week of the father’s time the child has had sporting commitments in E Town and stayed overnight at the paternal grandmother’s home instead of staying with her and his older brother.
The youngest child D to the mother’s observation struggles with the travel involved in the current arrangements for shared care. However, the child is doing well at school and it is the mother’s expectation that he will also be offered the opportunity to move to the advanced class at E Town Primary School as did his older brothers.
The mother herself expresses a wish not to continue to live in E Town long-term having no family and limited friends in the area. She feels somewhat estranged from the community as the father’s family including his brother and sister and their families are well known and, she says, influential in the area.
The mother proposes on moving to the Central Coast to rent a property at either O Town or P Town for 12 months at a cost of $600 to $650 per week and then perhaps seek to purchase appropriate accommodation for her and the children. She will have the financial capacity to do so by reason of the final property settlement between the parties in which she is to receive the E Town cottage occupied by her at present and which is unencumbered, $850,000 in a cash payment, a car and personalty.
The mother acknowledges that the travel from the Central Coast to J Town is a distance of about 500 km. There are direct flights between E Town and Newcastle on limited occasions during the week. Car travel will be necessary.
The mother proposes that the father spend two weekends mid-term with the children on the Central Coast. He can stay, she proposes, where he wishes at his own expense. If the father wants the children for weekends in J Town then he can pay for the airfares.
The mother continues to propose the children be enrolled at the H School at L Town that she says is suited to the boys sporting and academic prowess. The mother accepts that such a move to a new area and a new school would be challenging for the children but believes that they will not find it difficult to make new friends.
The children at present have contact with their maternal grandparents particularly the maternal grandmother, who lives in K Town, especially in school holidays. The mother’s proposed move will not see such contact increase. Otherwise the mother has some relatives on the Central Coast or in Sydney who know the children but it appears have had little contact with them.
The mother professes no desire to exclude the father from the children’s lives and acknowledges that the children each have an established and meaningful relationship with their father. It is her view that the current litigation has impacted upon the children’s relationship with the father in that the father has not been able to manage his own emotions and anger.
In the event that the mother is not permitted to relocate the residence of the children to the Central Coast, she proposes they live with her in E Town and spend time with the father on alternate weekends so as to minimise conflict and distances that would need to be travelled by the children in any other arrangement. Although she would consider assistance from the paternal grandmother with travel otherwise.
The father’s circumstances and proposals
The father continues to live and work on his rural property about 80 km from E Town.
The father’s mother assists him in transporting the child C from school to E Town to the father’s property in the week that the child presently spends with the father. If the paternal grandmother is unavailable the father is assisted by his hired help or nanny.
The father resides in the Q property where each of the children have their own bedroom. The paternal grandmother has her own room when she stays in the household with the father and the children. The Q Property has a swimming pool for the children.
He opposes the relocation orders sought by the mother and seeks that the children continued to reside in the E Town area and attend schools there, although not opposed to a consideration of the children attending boarding school as they each commence Year 9. The father was a boarder at R School in Sydney from Year 7.
He asserts that the children’s present schooling arrangements provide a good education with the E Town high school offering them a sound secondary education and opportunities. He is open to a consideration of the children at a later date attending boarding school at an appropriate age and subject to his and the mother’s finances.
The father’s trial affidavit reveals him to be significantly invested in the conflict between himself and the mother. His oral evidence sought to cast himself in the best light possible and demonstrated some rigidity in his thinking, reflective of his own opinion that he is “black and white”. He revealed little reflective capacity to consider the impact of his actions on the children.
The father acknowledges that the eldest child B has a very close relationship with his mother and that the child was disappointed that there was no move to the New South Wales Central Coast in early 2016 such as had been discussed at about the time of separation by the mother and the father. He was aware that B was opposed to going to boarding school. The father proposed that B spend Year 8/2017 at school in E Town with any schooling arrangements thereafter to be discussed appropriately with the mother and be subject to any financial constraints, as would future schooling for the younger boys.
In oral evidence the father acknowledged that the child C was having issues with the week about arrangement that the father put down to “middle child syndrome” and the efforts the father had put into his relationship with B. He agreed that he had told C there would be no change without good reason even though C was in school in E Town and would likely attend high school in E Town.
The father proposes that he and the mother have equal shared parental responsibility for the children. He opposes the mother’s proposed relocation from the E Town area.
He proposes that the youngest children live on a week about basis with each parent during school term and that the children share the school holidays equally with each parent. He seeks specific orders in relation to Easter, Mother’s Day, Father’s Day and telephone communication and for the ability for both parents to engage in the children’s activities as they have done since separation.
For the younger children, for whom it is the father’s expectation that they will be both schooling in E Town in about 12 months’ time, the ongoing travel to and from the father’s property and E Town each alternate week would be significant. They would both also be removed for a significant period from their older brother who it appears will continue on the father’s proposal to spend alternate weekends with him.
The engagement of Ms G
The mother relied upon the affidavit of Ms G, psychologist who is referred to above.
Ms G provided two “reports” in her affidavit. The first dated 8 February 2016 records:
…the purpose of this letter is to be an advocate for [B] …. I see my role is presenting [B’s] wishes as I have understood them from seeing [B] for several months. This letter has been written in consultation with [B] and he has reviewed the final draft to ensure it is a true statement of his wishes.”
It appears that the letter was written at a time when B was expressing significant wishes to spend more time in his mother’s household and to be able to spend time with the father on an alternate weekend basis.
Ms G reports that the child B stated that he would like to trial the changed arrangements due to several disagreements with his father in 2015 and as he was finding it hard to know how to deal with and understand his father’s emotional state. The father expressed his concern to the psychologist that if the child came for a few days then such time would not “be a good time between them”. The child expressed a view that he wanted to start out slow in his time with the father and build a stronger relationship without fighting and then return to the previous arrangements.
Ms G observed that B was a very mature and articulate young man with a close bond with his mother. She reflected that the child asserts that he was not seeking a change in time with his father to please his mother but it was rather a matter of his own decision. B was seen by Ms G together with the mother and they both asserted to the psychologist that this was B’s decision with the child saying that he would be happier with the new arrangements.
It appears that the father initially rejected the child’s proposal for a change of arrangements and it became the subject of correspondence between solicitors.
Ms G opined that given the child’s age his wishes should be given strong consideration and that in the event arrangements would not change there could be damage to the child’s relationship with the father.
This report was clearly penned by the psychologist to assist the parties in a consideration of the child’s request for change of arrangements and it is of note that subsequently the child’s wishes were acceded to by the father.
The psychologist provided a more expansive and more recent report dated 29 September 2016. Once again she prefaces the letter in the following terms: “the purpose of this letter is to be an advocate for [B], [C] and [D Knight]…” The purpose she says is presenting the children’s wishes as I have understood them from seeing B and C for several months. Once again the letter was written in consultation with the two children and they reviewed the final draft to ensure it is a true statement of the wishes.
The psychologist reports that she has been seeing the children since June 2015. The youngest child D only attended a few sessions and then has chosen not to engage further, the parents she reports having no concerns for him at this stage and as to how he is adjusting to the separation and joint living arrangements.
Ms G repeated that her earlier report had been done in the context of the eldest child’s wishes to change his access arrangements with his father.
B, reports the psychologist, sees there has been an effort on the part of both parents and believes his relationship with his father has certainly been easier.
Fortunately, Ms G’s interview notes (Exh “F”) were available to give some temporal context to her more generalised report letters and provided insight into the changing relationships between the children and their parents.
Shortly after the final separation of his mother and father, B was seen by the psychologist over the next few months. It is clear that his relationship with his father over that period was difficult. He reported on 11 July 2015 that:
…can not stand fa… scared of fa – “emotionally unstable”, argues with mother, worried he will hit me – never has “he can’t control himself – unstable, says things about mother that aren’t true eg timeline around Mo connecting with [Mr I] (her new partner)…
….want to stay at Mo f/t – too stressed at dads’.
It is clear from the child’s reports that the father and the paternal grandmother persistently asked questions of the child about the mother. The child reported a week later that he was “closing myself off from everyone – staying in the room where fa can’t interrupt”. The father’s emotional fragility at this time is reflected in the child’s report to the psychologist on 1 August 2015:
…Da yells so much – mostly at me for petty things, looks for reasons to yell at me. His mother is there all the time and threatens to hit us with a wooden spoon. Always loses it… He shakes… Goes outside for a cigarette, sometimes comes in and is okay – other times – comes in for round 2.
B at this stage reported that C “feels split between mother and father” and that D “gets that you don’t have to be on any one side”.
The two younger children were also seen on 1 August 2015 and their reporting to the psychologist demonstrated the parental conflict. They reported:
…mother and father of both get angry – can’t trust anyone – not happy most of the time – feel sad – angry because of our family...
The same day Ms G recorded: “[C] stated not going to Central Coast wanted to stay on farm – [D]. agreed”
On 5 September 2015 the children again saw the psychologist. B reported that he was told that he would not be going to the Central Coast to live and go to school and reported that he would be attending the E Town high school in the accelerated classes. He “did not want to be around father” but was still in a week on week off arrangement. B reported that he “don’t mind [E Town] but don’t want to be at dad’s and would rather be at the coast”. D expressed the view that he was “happy not going to the coast and liked to see his mother and father each week”.
On 29 September 2015 the psychologist was informed that B was still spending a week about with each parent and wished to be able to see the psychologist with his father about the issue. B reported that the “father had been crying and breaking down a lot, causing fights over nothing, always brings it back to moving to the coast”. B reported that he and C were arguing a lot with the father: “(he) always brings it back to mother and how hard she is making it for us all”. When questioned as to whether he would go back to a week about B reported that “would take a while for him to change and for me to see that and slowly build up again… now I see the real person”.
A month later B reported that he was ready for high school – “just change will be good”. He further reported that he wanted to stay with his mother full time next year. His father he reported was still “very emotional – very cranky” but that the father, C and D were getting on better.
In late November B reported that he hadn’t seen much of his father as it was harvest time. He was nervous about talking to his father about staying in E Town with his mother. He then requested a session with his father to talk about not living with his father week about.
The father and B were seen together, it appears, on 27 November 2015. The child expressed the wish to his father to change visits due to issues as to “travel, fighting, social, high school assignments”. The father was observed to be upset and did not wish to lose contact with B with the father saying he would think about it but at this stage wanted to keep it the same. The psychologist attended the father on the phone later and the father expressed the need to understand his changing needs – not let B manipulate but maybe being flexible may keep the relationship.
B was seen again on 26 January 2016, reporting that he went on holidays with his father and it “was a great time”. It appears there was a meeting on the evening of 25 January and the outcome was that he would be living with his mother and there would be some flexibility in his time with the father. B reported that he would “start off small and work up the relationship again”. The child continued to complain that a lot of his father’s anger was taken out on him. The child further complained that there had been some fallout with his brothers with the father “bagging” him out to the boys.
It is in the context of the above observations that the report letter dated 8 February 2016 was authored by Ms G.
On 12 March 2016 B reported that there were still issues in his time with the father, the father wanting to revert to the week about arrangement in the next term. B reported that his brother C was playing the parents against each other, if he gets in trouble with one he rings the other. Weekends with the father felt better although, said B, his relationship with his father was “not better” although “he doesn’t yell as much because I am leaving sooner”.
On 5 April 2016 the child C was seen by the psychologist. The child reported that he felt that he was the father’s new punching bag since B had gone. He complained that the father “gets angry at me quicker for doing little things”. The child’s perception was that his relationship with his father was going a little bit backwards and that his father had recently been physical with him, pushing him against the wall. The child’s ambivalence however was noted in his report that “when at fathers wants to be at mothers and when at mothers wants to be at fathers”.
From 18 April 2016 the father was interviewed by the psychologist by phone. The father’s presentation to the psychologist was both confrontational and concerning. The father reported that there was an ongoing physical conflict between the boys. The father expressed his belief that the children were being manipulated by the mother having seen on B’s phone a list of the father’s “problems”. The father expressed concern that B was causing the child C to take on the same behaviours as B. The father reported that he didn’t want to take the kids away from the mother but wanted it to be on a level playing field. He perceived that B was trying to be in charge – “eldest in family” and that B was like a spy reporting to the mother. The father was of the belief that the worse the mother could make their relationship the better this suited her cause to move away.
The children B and C were seen a few days later on 22 April. B reported that he had been to his father’s for the weekend: “horrible”. He reported that the father threatens them with violence, shouting, pushing and shoving. C and B reported that the father “is like Darth Vader and trying to overthrow his family and we are the rebels and he won’t let is in, tries to make us feel bad”. C was seen alone and reported that whilst the mother did not talk about the father, the father spoke about the mother usually about money. B, in a separate interview, reflected upon the conflict with his father and agreed that he would endeavour to sit down and talk with his father about the issues.
On 16 June 2016 B was seen again and reported that for the last six weeks he had not been going out to the farm, but that his father’s anger seemed to be getting better with “most of the problems sorted now”. The child expressed his willingness to have joint sessions with the father and indicated that he would be going to the father’s in the school holiday period. He reported that he felt torn – wanting a relationship more with his father and wanting to build it up but not knowing if he was ready. He indicated his wish to go to the Central Coast but that he would miss a lot in E Town.
The child C was seen on the same day. The child reported an argument between himself and B after which he did not get to say sorry, with that reminding him of how the father treats us. And he reported that things were better in the father’s household “less yelling and physical between us”. The child expressed the view that he wanted to go to the Central Coast but would feel bad about not seeing the father who “may miss us and he worried sometimes about that”.
The father was seen by Ms G on 19 June 2016. He reported that he felt like he was losing the kids: “is there something I am not doing”. The psychologist spoke to him about not talking about the mother in that he is not putting her down or pumping the children for information. She spoke of the father’s anger with the boys feeling that he always is “going off”. The father responded that he felt he was trying to do these things but when they misbehaved he will punish them.
B was seen again on 28 June 2016 and reported he had spent the weekend at his father’s and had a good time. He reported that school was going well and that he had made good friends. He was now happy to talk with the father about his time with him. A month later on 23 July B reported that he was seeing his father every second weekend and things were going better he wanted to build up time but not sure when.
In late July the mother spoke to the psychologist about the child C exhibiting verbal and physical conflict with his brothers and the father and his mother still engaging the children in the parental conflict.
B was seen again on 25 September 2016 shortly before trial. B reported that going to the father and the farm was “great” but that his brothers report that it was worse for them when B wasn’t there. C, he reported was still behaving badly in both households. If he was not able to move to the coast and had to stay for a couple of years he would be “not over the moon- a bit upset but would make it work’. When asked when he would see his father B responded the original plan was every couple of weeks and three quarters of the school holidays but now half the school holidays and each second Christmas holidays for four out of six weeks.
Later the father, C and B were seen together. C expressed the view that he wanted “to do as B” as he feels B is treated better. This is indicative of C wanting to spend time with the father more on a weekend basis. The boys spoke of being shoved but the father asked them to think about what really happened. He apologised to them. Both boys agreed that the father’s anger was better. The father said he would not agree to C changing to the same arrangements as B. The father was challenged over investigating the mother’s partner by contacting the partner’s ex-wife. The father in response asserted he was “trying to find out the truth”.
Ms G’s oral evidence
As to the question of the children’s “social capital” in the E Town area this exchange took place:
Now, you haven’t read the family report, but [Ms S] uses an expression in her report to the effect that these three children have enormous social capital in the [E Town] area. You would agree with that observations, wouldn’t you?
Yes. Absolutely.
And it would be fair to say that it would be diminished if they moved, wouldn’t it?
Initially, but I think the boys all have personalities that would easily spark friendships and get them involved. They’re very involved in sports and – and different activities. So I think with any move there is that diminishment, but I think just knowing the boys they would make friends easily.
A large proportion of the social capital is family related, isn’t it? Absolutely.
And that’s not going to be reproduced, as you understand it, on the central coast, is it?
Not to the degree that it has got now.
Well, have the boys told you about any cousins on the central coast? No.
Have they told you about any aunt or uncle who lives on the central coast?
No. Not that I’m aware of.
Have they told you of any friends that live on the central coast? Not that I can remember.
They don’t have grandparents on the central coast?
No.
So it’s not going to be reproduced at all, is it?
No. I think they’ve got very good memories of the central coast because they’ve done a lot of holidaying there.
Quite – it’s not unusual for children to embrace the idea that they might move to somewhere that they vacationed, is it? Absolutely. And that whole, “We will be on a constant holiday” – yes, that’s – that’s a normal thing in a – a perception in a child’s mind.
As to the child C who was demonstrating conflict with his brothers Ms G said:
They wanted to know, don’t they – and this applies to all three children – what the rules are?
I think more so [C] and I think that’s – I feel that’s what’s making him a pretty sad little boy at the moment and I think he’s – he’s really battling with knowing where he’s going, what’s happening to him. He sees – he’s at that age as well where he’s coming into a bit of testosterone starting, you know, coming into those year 6. He’s wanting to assert himself a bit. He sees his big brother asserting himself and getting his own way. He certainly is making – has made wonderful friends. He talks about going over there and having a wonderful time with his sport, but really the whole underlying is he has got no idea what’s going to happen to him and I think it’s the uncertainty that’s really bothering him.
On the question of the two younger children continuing to live week about Ms G responded:
So that, if, at the end of the day when orders were made, the orders provided for him and his brother to continue to live together half of their time and their mum’s and half of their time at their dad’s, he continued to go to his school, he would take up his leadership position, he would settle into that, wouldn’t he?
I think so. But I – I have spoken to [Mr Knight] and said, as he comes up closer to high school, that – that being flexible again, like with [B] with all the reasons that [B] listed with social things happening or homework, travel, that sort of thing, that that would have to be taken into account
As to the parents Ms G offered:
It’s possible, isn’t it, that, if his Honour were to make some orders which just were final orders for the children, that the parties also had final orders in respect of their property, a lot of these things for the children will settle down, won’t they?
In respect to?
Knowing where they’re going ?
Yes.
… and what issues – yes?
Yes.
Because, in Mr and Ms [Knight], unlike in some cases you might see, you have two people who are committed to trying to do the best from each of their different perspectives for these three children, don’t you? Absolutely. Yes. I have no doubt
They’ve engaged professionally ?
No doubt about that at all.
Right?
They’re both very loving and interactive parents.
And so if we take some of the heat out of this for the children by saying the dispute, at least where – about where you’re going to live, is over, that will probably be of some great benefit to these children in terms of their feeling of settledness and stability?
Absolutely.
When asked about “risk” in the father’s household Ms G responded:
If I were to look through your notes, it’s fair to say that whilst the children have had complaints about the father, none of them are risk issues, are they?
No. I – there has been some pushing and shoving that the boys have – I’ve – have recorded. But when I’ve actually had [Mr Knight] in and we’ve addressed some of those with the boys, and some of them, I think, are what boys go through in some of the testosterone times. [Mr Knight] has admitted he has been a bit hard on the boys sometimes. The boys have certainly talked about [Mr Knight’s] anger. [Mr Knight] has acknowledged that with the children, and – but – and again, black and white – very black and white – and believes, here’s a boundary. Step over it, there is a punishment. And the boys have felt that that has got better in the way that they’ve been able to deal with each other.
If I read through your notes, the children have also reported to you that their mother yells at them, haven’t they?
Absolutely. Yes.
Right. These are boys who fight a lot?
Absolutely. They’re normal boys that push the boundaries, and I guess with their mum’s way of dealing with discipline, she still disciplines them. I’ve seen her pull them into line in front of me. But she is more of, “Let’s sit down. Let’s talk this through,” where [Mr Knight] is very, “That’s it,” straight away, from what I’ve seen and from what the boys have reported. But certainly they – they fight, they yell, they sook. They have difficulties with both parents in that changeover. It takes them a little while to resettle back into the other parent house, which is fairly normal for – for children that are doing access visits.
The Family Report Exh “A”
The family consultant considered the history of the parties’ relationship, current parenting arrangements and the parties’ respective proposals.
The issues were identified in the following terms:
The issues in dispute are:
•Where B, C and D live and the amount of time they spend with the party with whom they do not live.
•The mother’s proposed relocation with the children to the Central Coast of NSW.
•The distance and practicalities of travel if the mother is allowed to relocate to the Central Coast.
•The father’s parenting issues.
•The parties’ allegations that the other parent and family members make inappropriate comments about them to and in the presence of the children.
The mother reported to the family consultant:
31. [Ms Knight] said that, although there had been no family violence in her relationship with [Mr Knight], he had been very controlling and she had on occasions been scared of his haranguing manner and his verbal and emotional outbursts. She said, “I would get into trouble a lot. He would get very angry if I got a personal email”. [Ms Knight] maintained that there was a considerable amount of conflict around the separation. She said that she and [Mr Knight] had been to marriage counselling and that she had formed the view that [Mr Knight] lacked “acceptance of me as a person, there was good [Ms Knight] and bad [Ms Knight]”. [Ms Knight] also said that [Mr Knight] was “an intimidating person” who used to say to her “everybody thinks you are wrong” and implied there was “something wrong with me”.
Whilst the father reported:
….(the father) described himself as “very black and white”. Although he was of the opinion that he had good relationships with his children, he did acknowledge that he was currently having some difficulties with [B]. He said “[B] didn’t come last week (to spend time with him), supposedly because he had too much homework”. [Mr Knight] said that he had been concerned upon checking with [B’s] Year Coordinator to find out that this had not been the case. Nonetheless, Mr Knight expressed hope that [B] would come on Thursday for [C’s] birthday party.
…36. [Mr Knight] said that he and [B] were currently attending counselling with psychologist, [Ms G], because of arguments between himself and [B]. [Mr Knight] acknowledged that he could benefit from this assistance because of his need to learn about “different parenting styles”. He said “I’m a bit black and white. There are other ways of getting results. I could be a bit lighter (as a parent)”.
The above is in some significant respects indicative of the interactions of the parties and the children as reported by Ms G. The father, it appears, needs to be vindicated whether it be about B’s homework or his suspicions as to the mother’s relationship post separation.
The father’s need to be in control is reflected in his criticisms of the mother:
41. [Mr Knight] said that he hoped when he and [Ms Knight] had resolved their Family Law issues they would be able to co-parent effectively. He said “At the moment it’s a ‘one-way street’”. He stated that although he was able to be flexible regarding arrangements for the children, he was of the opinion that [Ms Knight] was less so. He thought her lack of flexibility, might, on occasion lead to more “harsh” outcomes for the children. He was also of the opinion that this behaviour could be seen as “using the children” in an inappropriate manner.
As at April 2016 the child B’s complex relationship with the father is reflected in the child’s report to the family consultant:
[B] said “It wasn’t working with Dad week about and I now see him every second weekend”. When asked about his relationship with his father he said, “It’s better, but there is still room for improvement. Basically, if we are talking he will just come in and start talking about Mum”. [B] said that he was pleased with the progression the relationship with his father which he attributed to the counselling he and his father were attending. [B] said that he was committed to continuing counselling with his father as he wanted the relationship to continue to improve.
As to the child C:
([C]) was clear that the current arrangements were “fair for us kids”. He made it clear that he wanted to spend time with both of his parents.
… (He) did not perceive that there were any difficulties in the travel arrangements. He said “It’s only forty-five minutes from here ([E Town]) to Dad ([J Town]). Me and (Mrs [Knight]) actually have some pretty good conversations lots of the way. I really like how it is open at Dad’s. We go fishing. We won the biggest yabbie. I help Dad when he needs it”.
D was clearly attached to the rural lifestyle as observed by the family consultant:
56. [D] seemed concerned about “Who I’m going to live with in the future”. He did not relish the possibility of the current arrangements being changed and made it clear that he would prefer to go and see each parent on a week about basis and was concerned that it might not happen. In regard to the current arrangement, [D] said “It works well. I like the farm. It’s really fun. I’m close to the sheep and you can go bowling and play golf”.
57. [D] made it clear that he preferred the physical amenity provided by living on the farm...
As to the mother’s proposal to move to the Central Coast of NSW the family reporter notes:
…Nonetheless, given the distance between [J Town] and the Central Coast, it is unlikely that the children will have the benefit of [Mr Knight] participating in their life to the extent that he does with the current shared care arrangement.
It is assessed that the children have significant social capital in the [E Town/J Town] area, such as friends, family and community connections through sport. This is not to say that they would not, given time, develop these types of connections on the Central Coast.
66. The children are of the age and level of development at which they have the capacity to maintain relationships despite distance through the use of Facetime and Skype. It is however, it is not in accordance with the wishes of either [C] or [D] to stop time spending week about with their father and mother. [B] is happy with the current arrangement except that he would prefer to be living at [U Town] on the Central Coast and attending the [H School].
In discussion the family consultant opined:
69. [Mr Knight] has acknowledged that his parenting style is “black and white”. He states that he understands that this attitude is leading to conflict with the children and that he needs to change. He needs to take advantage of [Ms G’s] help to make this change so that his children will feel that if they approach him with an alternate view there is a chance that they will be heard. Both [B] and [C] are of an age when they are likely to challenge their parents as they seek to individuate from them as they transition to adulthood. How this is managed is crucial to a parent’s long term relationship with a child. Should [Mr Knight] not manage this well there is a possibility that he will become alienated from his children, particularly if [Ms Knight] comes to be seen as the preferred parent.
70. By his own admission [Mr Knight] was clear that he had said some inappropriate things in front of the children. [Ms Knight] claimed that this type of thing was ongoing. [Mr Knight] claims that [Ms Knight] undermines his parenting. If either of these situations are occurring, they would be most distressing for the children who need to think well of both of their parents. It would therefore be advisable if Mr and Ms [Knight] sought the assistance of [T Group] with a view to resolving these issues so that they don’t negatively impact on the children.
71. Although [Ms Knight] is keen to move to the Central Coast as soon as possible, she did state that if she wasn’t allowed to take the children, she would stay in [E Town] until she could move, even if it was when [D] finished school…
The family consultant’s recommendations were in the following terms:
72. That the parties have equal shared parental responsibility.
73. That he mother’s application to move to [U Town] on the Central Coast of NSW be a matter for judicial determination.
74. Should [B] continue to reside in the [E Town/J Town] area, he should live [Ms Knight] and with spend every second weekend with [Mr Knight] as well as at other times similar to those as outlined in the Interim Parenting Agreement which expired on 18 January 2016.
75. Should [C] and [D] continue to reside in the [E Town/J Town] area, they should live each of their parents on a week about basis, as is currently the case and at other times similar to those as outlined in the Interim Parenting Agreement which expired on 18 January 2016.
76. Should [B, C and D] relocate to the Central Coast with [Ms Knight] the children should live with her and spend time with and communicate with [Mr Knight] in line with the Orders she sought.
77. [Mr Knight] should continue to seek the professional assistance of [Ms G] regarding the parenting of [B] and [C].
78. Mr [Knight] and Ms [Knight] should seek further assistance from [T Group], to attempt to resolve the issues of concern, that each of the parties has about the other’s behaviour, which may have negative consequences for the children.
The family consultant’s oral evidence
The family report had been prepared some six months prior to trial and as evidenced by the engagement of the children and the father with Ms G there had been ongoing developments in relation to the children’s relationship with each other, the children’s relationship with the father in particular the eldest child and the children’s wishes.
The family consultant gave oral evidence by phone.
The family consultant was asked about the child B and perhaps the child’s alignment with the mother. She responded as follows:
And on your assessment of your discussions with [B], you didn’t feel that he was influenced by one parent or the other?
No, I – I didn’t feel he was. He’s – he was more aligned with his mother. I mean, that was fairly obvious, but that was something that the – the whole family agreed on. I mean, [Mr Knight] agreed that he was more aligned with his mother, and – and he was. And he was, of – of all the children, he was the one that was least attached to the farm. But I – I don’t – I – I – I couldn’t say that he was unduly influenced. I think [B] formed his own view and he was a child who knew what he wanted to do and what he – what he liked and, you know, he – he prefers his mother’s parenting and – and is more aligned with her.
The father’s somewhat inflexible personality style was also touched upon by the family consultant in the following terms:
…I think as the boys were getting older, I mean, [Mr Knight] was – had a more rigid parenting style than [Ms Knight] and I think the boys probably were – themselves, the boys were reacting with him, so – but that – notwithstanding, they still have, you know, affection for their father…
And certainly you were saying the more rigid parenting style of the father. I understand the father describes himself, including to you, as black and white. And if his Honour has some evidence from the children’s counsellor that the father is slower than most to process, let’s say, a view or another alternative, that would be consistent with your assessment of the father?
Yes, it would. I mean, he – he said that a number of – he was open to – to – he was open to – to improve his parenting and he said that the new person that he was going out with, you know, was helpful to him in that. But he – he also did describe himself as black and white, and he said it about three times as though it was – you know, well, that’s the way I am.
Yes. As if it’s something that everybody else needs to accommodate because that’s his personality?
I think – I – I think there was a bit of that, and so it doesn’t surprise me that the other counsellor’s assessment was that he was a bit slow to – to come to other views. But he was – but, you know, he was – he – he – he wasn’t totally unaware that he needed to change and he had some issues, you know, the boys had some issues because of his parenting.
As to the child C’s wishes the family consultant said:
…[C] certainly was close to his father when I saw him and even though there were some emerging difficulties, [C] still wanted to live with his – live on the farm. That was [C’s] preference for this…
…I mean, you know, things have obviously moved a bit since I saw [C] and – and that, you know, I – I don’t know that it’s middle child syndrome. I mean, I thought the three boys were all pretty well adjusted children and, you know, intelligent – they were very intelligent children and they were all pretty well adjusted, and they were quite open to expressing their – their own views. I mean, I didn’t see [C] – you know, just because he’s shy or, you know, I don’t know what middle child syndrome – I don’t know what that would – but [C] was a pretty well-adjusted child who was fairly clear about wanting that. That was my assessment of him anyway.
As to the travel obligations with C now in E Town for school still in a week about arrangement the family consultant said:
Look, he didn’t have a problem with it and he said that, you know, he and his grandmother, you know, got on well. He quite liked it. He – at that point, he did want to stay on the farm, but that may have shifted. I don’t – I’m not sure. But at the point I saw him he wished to stay on the farm.
In relation to the youngest child the family consultant reported:
[D] was a very sad little boy when I interviewed him. He was very distressed that, you know, his – his circumstances have changed. That was his major concern, because he really wanted to see lots of his mother and his father. You know, he really, really was dreading a decision that might mean that his circumstances might change.
The consultant was asked to reflect upon the younger children’s views about the travel necessary to maintain their relationship with each parent. The family consultant responded as follows:
Did you get some perception that perhaps the arrangements that were in existence when you did the report of the younger children spending a week-about, clearly some distance from their mother’s base in [E Town], was causing some issues?
It wasn’t when I saw them, and I was careful to – to go through that with them, the two younger children. If it meant they had a week with each parent, week-about, that was worth it.
That’s the view of the child – of the children?
That was the view of both children, the – the two youngest ones. The travel was worth doing to spend a week with your mother, and then spend a week with your father…It was a price the children thought was reasonable because they wanted to see their – they didn’t want to see either parent any more than the other one, the two youngest.
Well, that – of course, that reasonable price the children were prepared to pay would be completely of no value if the mother should relocate? No, it wouldn’t be. You’re right.
Ms G had referred in her evidence to the father’s rigid style of parenting, his perception that he was able to invade the privacy of B’s communications with his mother, make enquires behind B’s back as to why he did not come for a weekend and seek to make third party enquiries about the mother’s relationship with her new partner (presumably to support his conviction as to the mother’s conduct in commencing her new relationship during cohabitation). There are clearly aspects of the father’s conduct that are objectively indicative of narcissist traits. The father’s ability to cope with the boys getting older and more challenging of his authority was put to the family consultant:
And it would give you a concern in relation to the father’s ability to respect his eldest son’s needs to have some privacy in his own communications?
Yes, I – I think – I think, you know, the – the – [Mr Knight] does struggle with the children trying to ..... out and become adults. I think, you know, he thought that he – I mean, he’s unsure of it, really.
And that struggle, in your assessment, of [Mr Knight] is something which will only increase s the boys get older and challenge their father more?
It – well, I – I was hoping that – that – and I did talk to him and he was prepared to go to counselling about this, to – to work to, you know, resolving some of these issues. I was – you know, for, you know, their – because he was open to go to counselling, I – I – I, you know, had some thoughts that maybe it wouldn’t get to that stage. You know, I could assess them and then it would get better because certainly [C], when I saw him, was, you know, very fond of his father and – and even [B] hoped that counselling would – would work and that, you know, [Mr Knight] would gain some more insights into his needs. So [B] – [B] wasn’t negative about his relationship with his father, even though he thought it was problematic. So when I saw them, there was hope that things – that the situation would improve. Now, it might have changed since I saw them…
…I think he’s remorseful, but I – I just think he’s – he is what he says, a bit black and white, and he doesn’t like to see, you know, his part in things going wrong. But I was hoping he was going to get assistance with that.
The family consultant commented on the oral evidence of Ms G to the effect that:
…whilst [Mr Knight] is slower than the mother to reflect on what the children might need, she is satisfied that he has the capacity to reflect on what the children might need and change his view
by acknowledging that it was a positive and that it would mean that the father has benefited from her interventions.
The family consultant did not see C’s, as asserted, “middle child syndrome” as being any reason for there being a change in that child’s arrangements with the father. As to the child B the family consultant saw it preferable for the father/child relationship that the father be available to attend on a regular basis all of the child’s sporting and school events that he had continued to do until hearing notwithstanding the difficulties in the father’s relationship with the child.
The family consultant also expressed concerns as to the disruption in the ongoing therapeutic relationship with Ms G should the mother and children relocate.
Parental communication has clearly been an issue in the past. However, the family consultant observed:
I mean, I – I think the situation was – was fairly fraught – this couple – when I saw them, because they both wanted very different things. I mean – and they – and the property matter wasn’t settled, and that was causing some angst and, you know, the – things were very much up in the air. But I – but I think they demonstrated a capacity to be able to sort things out and communicate because they managed to negotiate a very comprehensive parenting plan earlier on. So I think …the capacity is there..
The solution isn’t necessarily reducing the face-to-face time that one of the parents has with the children, is it?
That’s not necessarily the solution. Now, I mean, you – you might reduce the face-to-face time if – if – you know, I mean, the time will change eventually as the children get – get older, and you would hope that the parents – parties can negotiate themselves, like they did in the case of [B’s] schooling. They actually negotiated that [B] would go – would change and go to school in [E Town] so, you know, they managed to do that – reach that agreement themselves. I mean, down the track, the children may want to live with various parents in various different arrangements and, you know, good parents can sit down and talk about that. I mean, you know, [B] is – you know, the – [C] might want to go and live with his mother, but just because there’s more things going on where she lives than there are out on the farm. You know, children change. Their needs change and their views about things change as they get older so, you know – I mean, the arrangements that are put in place now, you know, would possibly change down the track..
…but you would hope that the parents would honour their agreement to go and see [T Group] to assist them to make appropriate changes for these children in the future, instead of coming back to court..
The Law
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 Fam LR 756 at 792 Kirby J said:
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(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):
(a) 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
(b) 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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. Sections 61DA(2) and (4) provide that this presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)).
The Full Court in Goode v Goode (2007) 36 FamLR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway.
Relocation
This particular case has as the overshadowing question of relocation.
The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343, Malcolm & Monroe [2011] FamCAFC 16, Sayer & Radcliffe and Anor [2012] FamCAFC 209) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.
In Taylor v Barker (2008) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
Their Honours went on to say:
[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.
In Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343, Boland J heard an appeal as a single Judge pursuant to s 94AAA (3) of the Act. At [79] to [81] Boland J identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour stated:
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 carefully 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.
The proposals of the mother and father are referred to above.
Parental Responsibility
Both parents sought an order for equal shared parental responsibility. Such an order was supported by the family consultant.
The order will be made by consent.
The Court may then consider equal time or substantial and significant time arrangements. Ultimately arrangements for the children will be determined by their best interests as discussed above and below.
Best Interests
The Primary Considerations: s 60CC(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
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The enquiry is a prospective one, looking forward for the children in the context of parental relationships.
The children are now well settled in their current arrangements with each parent. The mother seeks to substantially change the fundamental basis of the children’s relationship with the father whilst herself assuming primary care of the children whether she stay in E Town or move to the central coast. Should she stay in the E Town area the eldest child will continue in much the same arrangement as now but on her proposal the arrangements for the younger children will fall into the same pattern.
To simply say that both parents have been engaged in the children’s lives in the context of this matter would understate their ongoing engagement in their sons’ lives. B at present is working through relationship issues with his father and more recently has suggested that things are improving. Both father and child have engaged with the therapist to this end. The younger two boys are, it appears, keen to preserve their present relationship arrangement with both parents and in particular with the father in its current rural setting with C perhaps now more ambivalent about the week about arrangement that he is in.
Whilst the father needs to be more reflective as to his parenting style and his rigid “black and white” personality issues, all children value their relationship with their father and see its continuation as significant and meaningful to each of them.
The mother has issues in her relationship with the children but they seem to be reflective of ongoing parental issues historically and ongoing parental conflict. These may now diminish as property issues have been resolved.
Prospectively the mother’s proposed relocation will be significantly disruptive to the children’s relationships with the father. His ability to remain engaged in their day to day lives as he does at present will be emasculated. The tyranny of distance cannot be addressed by appropriate and regular travel arrangements. It is common ground that weekend time with the father will be problematic and will involve significant travel for him and the children on the mother’s proposal.
This primary consideration is indicative of the children remaining in circumstances where their relationship with the father facilitate him remaining engaged with in their lives as he has done to date.
Section 60CC(2)(b) – need to protect
This consideration must be given priority over issues as to relationship. In the light of the matters discussed above there are minimal risk factors. The parties’ problematic communication and relationship difficulties have the prospect, if not addressed, of projecting themselves onto the children and, even if unwittingly, seeing the children enmeshed in the interparental issues.
Both parents have sensibly demonstrated a willingness to engage in counselling into the future. An order for the continuing engagement of Ms G is not opposed.
The additional consideration: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
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 extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
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:
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)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter;
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; and
m)Any other fact or circumstance that the court thinks is relevant.
The Children’s Views
The children’s views and the circumstances in which they have been expressed are referred to above. D seeks to retain his current significant time with each parent. He expresses his views in a situation where he is still settled at his school, has a fondness of the rural connection afforded by time with his father and has significant social capital both at the farm and nearby and also in E Town. He is now nine and some weight should thus be afforded to his views.
C is less settled in his views with the father aware that the week about arrangement is now not the child’s preference. C is now nearly 12. His views are expressed in circumstances where he is now in school in E Town with prospects of a leadership role at his school. He will move to high school in 2018, a circumstance that saw his older brother be based primarily in E Town. He clearly is struggling with getting older and more assertive about his wishes but it appears is unable to negotiate his father as B has done. The result, it appears, is conflict with his younger brother and B. His wishes need to be heard and given significant weight.
B now appears to be now ambivalent about his arrangements. He has settled into a routine with his father in a relationship that is a work in progress. He retains a desire to move to the Central Coast but accepts the lost opportunity that has been. He has significant social capital in E Town. B also acknowledges the nature of his younger brothers’ relationships with the father, particularly D but seems to not be able to see the downside for his younger brothers and their relationship with the father should they relocate with the mother. The overall impression is that B is much more reflective about his circumstances at present but open to decisions that his parents might make as to his schooling arrangements into the future.
The children’s relationships
The nature of the children’s relationships with both parents is extensively detailed above. As to extended family there are strong relationships on the paternal side in the E Town/J Town area. The paternal grandmother has had a significant engagement with the children. There are extended maternal family relationships but on a less frequent basis than those of the paternal side.
Parental engagement in the children’s lives
This consideration does great credit to both parents. Notwithstanding the fallout from separation and the ensuing difficulties, both parents have remained intimately engaged in all aspects of the children’s lives. This is particularly reflected in the pre and post separation deliberations as to the proposal for Central Coast schooling for the child B. This gives great comfort in assessing the parent’s ability to continue to do so into the future.
Obligation to maintain the children
Nothing turns on this consideration in the context of the children’s parenting arrangements.
The effect of change of circumstances
This consideration looms large as to the question of relocation and has been referred to above. The children’s time with the father (and his family) and his ability to be engaged in their lives will be significantly emasculated should they move from E Town. Their lives in the rural setting and their social capital in its many facets would be ended with a requirement to start afresh. The mother, it appears, has superficially ignored these consequences for the children in her desire for a new life in uncertain circumstances. Her capacity to reflect on the needs of her children must be questioned regarding the issue of relocation.
Practical difficulty and expense
The mother’s proposal if she relocates leaves the “time with the father” arrangements up to him. He can travel to the Central Coast for weekends midterm involving about 12 hours driving over 1000kms and necessitating it appears his absence from his farm on the day either side of the weekend. Otherwise, the mother says that he can himself fly to Newcastle or Sydney and hire a car to get to the Central Coast or fly the children from Newcastle or Sydney to E Town. She makes no proposal for how the children would get to and from the airport at her end. All this at his cost. Otherwise, the mother proposes orders that the father be able to attend school or sporting fixtures. How he would do so midweek is not explained. The mother seeks no orders that would facilitate implementation of her proposals thus leaving it up to the father to try and be available to the children from J Town as best he can.
Precisely where the mother will be living is not known but it is acknowledged by her that the father’s time with the children will be “less frequent”.
Parental capacity
Neither parent doubts the other’s ability to provide physical care for the children and to provide for their intellectual needs. The mother by inference has concerns about the father’s parenting style but rightly acknowledges that neither her style nor the father’s is preferred. The children have been most usefully engaged by the parents in therapeutic intervention that has assisted both parents in understanding the children’s emotional needs. This is particularly so as to the father and B, who in his wishes for his own time arrangements has, it is to be inferred, been assisted by the mother. The father needs to be aware into the future of his “black and white” personality traits and not bluntly put his own interests ahead of those of all of the children. The ongoing engagement of Ms G will assist in this regard.
Maturity etc. of the children
This has been touched upon above in the context of the children’s views. Some regard must be had to the country lifestyle and background of the children from birth to date. They are children of a rural setting with which the younger children especially express an affinity and a desire to remain engaged.
Parental Attitude
In day to day circumstances of their engagement with the children nothing can be said against the parents. They have demonstrated in the difficult times since separation a determination to do the best for the boys. Where they have fallen short in their responsibilities as parents is their involvement of the children in their personal conflict. It is hoped that once issues are settled this will end.
Family Violence/Family Violence Orders
There are no family violence issues contended by either party as relevant. Although the father needs to be mindful of physical discipline in regard to the children particularly when separating fighting siblings.
Final orders
In this matter orders can only be made in the circumstances found by the Court at trial. It is hoped that an end to the current issues will see an end to litigation.
Discussion
An overview of the best interest considerations is clearly indicative of an order for equal time not being in the children’s best interests. On either scenario of relocation or not equal time is clearly contraindicated.
As to substantial and significant time: that is defined as but not limited to:
a)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
b)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
c)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.
The parents have been highly engaged with the children both during cohabitation and thereafter. The mother’s proposal reduces the children’s time with the father particularly by reason of the tyranny of distance to significantly less than “substantial and significant time”.
The children’s circumstances need to be considered as a whole and not just the wishes or aspirations of one or the other that are allowed to determine the living arrangements for the other two. In this matter the three boys are all at differing stages of maturity. It would be it appears impossible by reason of the discussion above to meet fully the aspirations of all three. The balancing exercise must address all of the children’s needs and the best interests of the boys as a whole having regard to all of the considerations discussed above.
It is clear that by reason of the matters discussed above that the mother’s proposal for relocation of the children’s residence to the Central Coast is not in their best interest. There will be an order restraining the mother from doing so.
Otherwise, the child B is settled in his arrangements for time with the father. D, likewise, is settled in his current week about arrangement and has a wish to spend time with each parent and has a settled school environment. Should he obtain a position at school in E Town then it is clear that he should be based there with his brothers.
The child C is unsettled. He prefers to be based in E Town where he is at school and much of his extracurricular activities are based. But it appears he is not prepared to challenge his father on the issue.
It is appropriate having regard to the best interest of the children to make orders that reflect B’s current arrangements, that provide for C to reside with the mother and have similar arrangements to B and for D to remain in his preferred week about arrangement until high school or earlier if his schooling commences to be based in E Town.
Both parties seek usual orders as to specific days and specific issues. Such orders will be made as appropriate.
Orders will be made as set out at the forefront of these reasons.
I certify that the preceding one-hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 December 2016.
Associate:
Date: 16 December 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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