Krum & Krum
[2011] FMCAfam 65
•18 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KRUM & KRUM | [2011] FMCAfam 65 |
| FAMILY LAW – Parenting arrangements, international relocation. |
| Family Law Act 1975, ss.60B, 60CA, 61DA, 65DAA, 60CC, 62G Federal Magistrates Act 1999, ss.63, 65 Federal Magistrates Court Rules 2001, Part 15 |
| Dylan & Dylan FamCA 842 U & U (2002) 211 CLR 238 Goode & Goode (2006) FLC 93-286 Marvel [2010] FamCAFC 101 Goodner & Jepperson [2009] FamCA 1052 Mazorski & Albright [2007] FamCA 520 W & R [2006] FamCA 25 Pitkin & Hendry [2008] FamCA 186 Lansa & Clovelly [2010] FamCA 80 MRR & GR [2010] HCA 4 Starr & Dugan [2009] FamCAFC 115 AMS & AIF (1999) 199 CLR 160 Taylor & Barker [2007] FamCA 1246 McCall & Clarke [2009] FamCAFC 92 Hepburn & Noble [2010] FamCAFC 111 Eddington & Eddington [2007] FamCA 1299 |
| Applicant: | MS KRUM |
| Respondent: | MR KRUM |
| File Number: | PAC 4930 of 2010 |
| Judgment of: | Harman FM |
| Hearing dates: | 10-13 January 2011 |
| Date of Last Submission: | 13 January 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 18 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Counsel for the Respondent: | Mr Cooke |
ORDERS
That all and any prior parenting orders with respect to the children [X], born in 1999, and [Y], born in 2001, shall be, and are hereby discharged (and [X] and [Y] will herein be referred to by their names).
That [X] and [Y]’s parents, Mr Krum and Ms Krum shall have equal shared parental responsibility for them.
That [X] and [Y] shall live with their father.
That [X] and [Y] shall spend time with their mother:
(i)for a period of 28 days in the New South Wales Christmas school holiday period in each year such period to incorporate Christmas Day in each alternate year, and with the intent that the block period shall, in each alternate year, commence before and incorporate Christmas Day, and shall in all other years commence on a day after Christmas Day;
(ii)for all of the June/July school holidays;
(iii)for one half of the April and September/October school holidays.
That to facilitate [X] and [Y] spending time with their mother in Christmas and June/July holiday periods, that:
(i)such periods shall occur by the children travelling to and from Germany;
(ii)their father shall arrange, book and meet the cost of the children’s return airfares for Christmas and their mother, shall, for the June/July holidays, arrange, book and meet the cost of return airfares;
(iii)Ms Krum shall be responsible for her own fares at all times, including, if necessary and appropriate, her fares to and from Australia to collect, and/or return and accompany [X] and [Y];
(iv)each parent shall ensure the other is advised not less than 28 days prior to any expected date of travel of all flight itineraries, and ensure that the children are transported to and from relevant airports and board scheduled flights;
That to facilitate [X] and [Y] spending time with the mother in the April and September/October holidays, that:
(i)such periods shall occur in Australia;
(ii)Ms Krum shall be responsible for her own fares to and from Australia.
Each parent shall do all things, sign all documents and give all consents and authorities necessary to ensure that [X] and/or [Y] have and hold a valid Australian passport at all times, and shall each meet one half of any renewal or issue cost, and further:
(i)Ms Krum shall be entitled, at her cost, to obtain for the children British passports, provided such passports are issued in the surname Krum and not otherwise, and Mr Krum shall give all consents and authorities necessary to enable the issue of a re-entry visa and/or label;
(ii)Ms Krum shall be entitled to hold any British passport;
(iii)Mr Krum shall be entitled to hold any Australian passport;
(iv)the children shall be entitled to travel on either passport, provided that the use of a British passport shall not be intended, nor alleged, asserted, or construed, to represent a renunciation of Australian citizenship or habitual residence for the purpose of any law including, but not limited to, the Australian Passports Act or the Hague Convention.
Each parent shall be entitled to communicate with [X] and [Y] at any time that they are in the care of the other parent:
(i)by Skype at any time;
(ii)by email directly between the children and that parent;
(iii)by telephone at any time;
(iv)at such other times and by such other means as are agreed between the parents from time to time.
That each parent shall keep the other advised at all times of:
(i)their residential address, and shall, 21 days prior to changing same, give written notice of such intention to the other parent, and to include any proposed future residential address;
(ii)their landline and emergency contact number or numbers including work and mobile;
(iii)their and [X] and [Y]’s email addresses, and;
(iv)their and [X] and [Y]'s Skype addresses.
Each parent shall, whilst [X] and/or [Y] are in their care, do all things within their power to allow and permit [X] and [Y] to communicate with and receive communication from both their maternal and paternal extended families.
[X] and [Y] should be given access to a computer, and such access and permission as they may need to communicate with each parent by email and Skype, whether by contact by a parent with [X] and/or [Y], or by [X] and/or [Y] contacting a parent.
Each parent shall do all things, sign all documents and give all consents and authorities necessary to cause each parent’s name and contact details to be recorded with any school attended by any school attended by [X] or [Y], and to allow and permit each parent to correspond directly with the school or schools, and obtain such information, notification, newsletters, reports, copies of school photographs and correspondence relating to [X] and/or [Y] as they may wish or desire.
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to [X] and/or [Y], such notice to be given contemporaneous with the event, and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with [X] and/or [Y] if hospitalised.
Neither parent shall discuss these proceedings or any issue or allegation that arose therein with [X] and/or [Y], save to advise that the proceedings are at an end, and they shall be remaining in Australia as a consequence of the Court’s decision.
The parents shall make [X] and [Y] available to the ICL as soon as practical and within seven days for the purpose of these orders being explained to them.
I dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing, and upon expiration of the appeal period in the event that no appeal is lodged, all exhibits are to be returned to the party who tendered same, and all material produced on subpoena is to be returned to the person or organisation who produced same, or destroyed if they have so requested.
I dismiss the application for costs of the ICL.
IT IS NOTED that publication of this judgment under the pseudonym Krum & Krum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4930 of 2010
| MS KRUM |
Applicant
And
| MR KRUM |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving parenting arrangements for two young children – [X], born in 1999, and [Y], born in 2001. [X] is eleven years of age and [Y] will shortly turn 10.
The proceedings have moved through this court’s processes faster than, regrettably, the Court can usually accommodate. That has arisen for a number of reasons, some of which relate to resources within the Court, but otherwise relating purely to the circumstances and urgency of this case. Each of the parties is certainly to be complimented, as are their legal representatives, for having prepared the case in such a short space of time.
The circumstances of the case reflect and relate to the increasingly globalised world in which we live. These proceedings only came into being in October of 2010 and have concluded with hearing in January of 2011, and as a consequence of what increasingly comes before this court, as a work related desire to leave the Commonwealth of Australia.
The parties to these proceedings are the mother and father of [X] and [Y].
It would be trite to say that there is no issue or dispute in these proceedings whatsoever, that both parents and both children are delightful, normal, and well adjusted people. That, to my mind, makes the decision that I must make in this case, as the parents have not been able to agree on parenting arrangements, and in particular, parenting arrangements that will accommodate, or which will flow from, the international relocation, a far more difficult decision.
The parents have diametrically opposed desires regarding arrangements for these two young children, and they occur as a consequence of the applicant in these proceedings, Ms Krum, wishing to relocate with the children to Germany so as to take a lucrative work opportunity whilst the children’s move is opposed by her estranged husband, Mr Krum, who wishes to remain in Australia and remain with these children in Australia.
The parties have not sought to conduct these proceedings in a fashion that gives the court any choice other than the two referred to above. That is not a criticism of either of the parents, and indeed, they are matters, as I will turn to in due course, relevant to and reflected in relevant case law, not only of this Court, but the Full Court of the Family Court and, indeed, the High Court regarding the myriad of possibilities that might arise as to either a parent staying, notwithstanding their desire to leave, or a parent, who opposes the relocation, uprooting themselves and following.
Ms Krum has made clear in the case, and has done so through her counsel since the outset of the matter, that she is relocated to Berlin to take up the job position which has been offered to her, and which, in the usual course of the contractual arrangement relating to that position, she should have already taken up. Mr Krum has similarly made clear he is not, and does not see that it is practical, possible or desirable for him to relocate to Germany.
Accordingly, as is described by the expert who has prepared a report in these proceedings, the court is faced with two stark choices, neither of which represents an ideal or optimal outcome for these children. But as Carmody J, as he then was, has remarked so often, and particularly in his decision of Dylan & Dylan FamCA 842, this court rarely, if ever, is presented with or has available to it, optimal outcomes, but must do the best it can to find the outcome that will best promote these children’s best interests, notwithstanding that there may be many jagged and sharp rocks on either side of the path that the Court is forced to walk in making the decision.
Background and Past Care Arrangements
There is very little factual dispute between these parties.
The applicant mother, Ms Krum, was born in 1962, and is accordingly, 48 years of age, shortly to turn 49.
The respondent husband, Mr Krum, was born in 1963 and is currently 47 years of age.
Ms Krum was born in the United Kingdom, and came to Australia relatively early in her life and on 13 December 1990, became an Australian citizen.
Mr Krum was born in Australia and has always lived here.
In 1992, these parties married - at least on Mr Krum’s allegation, (there is some dispute as to whether it was 1991 or ’92) - but in any event, there is clearly a long and substantial marriage between these parties.
The two children, referred to above, were born and there is no contention regarding their dates of birth. They are described as bright, articulate, well mannered, sensitive children. The sensitivity of each of these children, and in particular, [X], has been the subject of a number of portions of evidence to which I will refer.
When the parties first met and were married, they lived together in Melbourne, which is where Mr Krum had been born and substantially lived. They continued to live in Melbourne until the latter part of 2005. In mid-2005, Mr Krum had resigned from his then employment in a company in Melbourne, and Ms Krum had employment. Towards the end of the year, Ms Krum was offered a promotion within the sales industry with Company A, with whom she continues to be employed. The regrettable aspect of that, if one might call it that, was that the sales position was based in Sydney not Melbourne. Accordingly, the parties moved from Melbourne to Sydney.
It is common ground between the parties, if one is to summarise their evidence without using their specific terms, as very little turns upon the minor differences between them, that their marriage was placed under some substantial and particular pressure at the time of the job offer and proposed relocation to Sydney. It was put in a number of portions at the evidence and by the expert in his report that at the time of the proposed move from Melbourne to Sydney, an ultimatum was put, by Ms Krum to Mr Krum, that she would be taking up the job position and moving with the children, and that if Mr Krum did not travel along, then the marriage was over.
The evidence between the parties differs in some respects, but there is no issue between them that there was certainly what one might call a confrontation regarding the move, but ultimately, the marriage was salvaged, the parties moved, and the parties continued to live together happily until at least the mid part of 2010. The relocation that occurred, the evidence would seem to suggest, was on the basis of an expectation that the position would be for three to five years, and that there may, or would, (and nothing greatly turns upon which of those is the more accurate descriptor), be a relocation back to Melbourne.
As events have transpired, that has not occurred. The parties clearly had some expectation that it might occur, at least until mid-2010, as they had maintained a place at the school that [X] had been attending, so that she could return to that school if they returned to Melbourne. Clearly, that is not now on the agenda. Towards the mid part of 2010, the mother, Ms Krum, was offered a position, a substantial promotion, within Company A, but this involved a move to Berlin.
The evidence of Mr Krum is that in April 2010, he was advised by Ms Krum that she had been requested to take the position. It is suggested that since that time, the relationship between the parties has diminished. Indeed, in Mr Krum’s evidence and when it was put directly to him, that the difficulties in relation to the proposed move to Berlin had had some impact upon the decision for these parents to separate, it was indicated by him that it was the “precipitator of the separation”.
Disputes between the parties about the move continued from April and until these proceedings were commenced in October of 2010. During that period of time, the parties attended family dispute resolution with a competent, experienced, family dispute resolution practitioner, but no agreement was reached.
The evidence would appear to suggest that in late August, a copy of a proposed contract and a spreadsheet of living expenses in relation to the Berlin relocation were provided by Ms Krum to Mr Krum, that on or about 7 September 2010, an offer in formal terms by letter was made to Ms Krum with respect to the position, and that following its receipt the ongoing and chronic dispute about that very issue continued until by 10 October, at the very latest, the parties had separated under the one roof.
Ms Krum claims that the separation, and the desire, and the communication of the desire to terminate the relationship, was far more connected with the offer and Ms Krum’s desire to accept it, and that separation had occurred some weeks earlier and in September. In any event, following the failure of family dispute resolution to achieve an outcome, the proceedings were commenced by Ms Krum, and on 19 October 2010, Mr Krum was served, and as it were, battle was joined.
These proceedings came before Henderson FM, and at that time, the parties had agreed to commission a private report in the fashion of a section 62G report, and hearing dates were accordingly allocated to the matter. Those dates were only available as a consequence of the emergency sittings undertaken by myself. In any event, the matter proceeded for three days to conclusion, submissions were made, and judgement is now delivered.
During the period that the proceedings have been on foot, again, there would appear to be little dispute, and the evidence from both parents certainly suggests that an application for British passports was made by Ms Krum for each of the children – it being remembered that Ms Krum is a British citizen, and entitled to obtain passports for each of these children on that basis. Only Ms Krum’s signature is required to obtain those passports, and some substantial time was spent in examining that issue presumably on the basis of a criticism of Ms Krum for having made the application without reference to Mr Krum.
Each of the parents has also scoped out, as it were, schools that these children will attend next year and beyond, if the children are in their respective care. Ms Krum has had an employer funded trip to Berlin as a reconnaissance, as it were, to visit the area, to locate premises to rent, to visit schools, and make arrangements and the like. Those have all been done, and there are two schools, although one primarily proposed by Ms Krum, for the children to attend in Berlin, being an international school at which English is the predominately spoken language.
A lease has also been signed by Ms Krum for premises in Berlin, having been entered into in late November 2010 and consistent with Ms Krum’s expressed desire that she is taking up the position but wishes to do so with the children accompanying her. As indicated Mr Krum opposes that, and it would appear on the evidence, and I accept, has opposed that and made his opposition clear at all times.
The Parties’ Proposals
The proposals that each parent makes are somewhat diametrically opposed. There have been a number of different proposals during the course of the proceedings but ultimately the proposals made by each parent is reflected in the case outline document filed by each of them respectively in these proceedings.
The case outline document filed on behalf of Mr Krum sets out a number of different scenarios depended upon whether both parents are in Australia, whether Ms Krum relocates to Berlin and whether the children are residing in Berlin with Ms Krum or then residing in Australia with Mr Krum.
Ms Krum’s proposals are clearer and more succinct. They are prefaced simply upon the children living with Ms Krum in Berlin or the children living with their father in Australia, and proposing similar, if not identical, arrangements for these children comprising two substantial visits during German school holiday periods or, if living in Australia with their father, corresponding, two substantial visits during Australian school holiday periods. The proposals of the parties do not bind the Court. That has been clear from a number of authorities, such as U & U (2002) 211 CLR 238, Goode & Goode (2006) FLC 93-286, Marvel [2010] FamCAFC 101, etcetera. However, they are the starting point for the exercise.
The legislative framework for the proceedings commences with s. 60B, which sets out the objects and principles of the legislation; s. 60CA, which compels the Court to consider the children’s best interests as the paramount consideration at all times; s. 61DA, which contains the presumption of equal shared parental responsibility, subject to its rebuttal. At this point – although I will address it in more detail later – I make clear that, by the time of trial, both parties proposed equal shared parental responsibility and clearly, other than the logistical difficulty of these parties shortly living on different sides of the world – although the use of technology in this day and age renders what might have otherwise been an argument as to impracticality somewhat nugatory – there is no suggestion, by either parent, of any conduct or course of behaviour that could possibly be described as rebutting the presumption.
The presumption applying – as it will, for reasons explained in more detail shortly – the court is then required to consider, pursuant to s. 65DAA, whether there should be equal or substantial time before considering any other time arrangement. That is, of course, judged by the dual test of what is reasonably practical as set out in subsection (5) of that section and what is in a child’s best interests as set out in s. 60CC.
Clearly, and by way of summary, equal and substantial and significant time cannot occur, not based on any assessment of that not being in these children’s best interests, but as it is not practicable. Indeed, if it were practical it would be ideal and the report writer says as much. However, it will simply not be practical based on where the evidence sits as to what each party intends and proposes.
The Evidence
In the proceedings each parent has filed affidavits and has been cross-examined at length. In Ms Krum’s case affidavit material has also been filed by her sister, Ms H, and by a work colleague, Mr M. Neither of those people – sensibly, having regard to the evidence that they gave and the delay it would have created in these proceedings – was required for cross-examination.
As previously indicated a family report has also been prepared in these proceedings by Dr B. Dr B was cross-examined at some length, for an entire day in fact, and was called at the commencement of the proceedings so that his evidence could be clear and he discharged.
A transcript of his cross-examination on 10 January has also been obtained, particularly to address an issue which had arisen in the course of his evidence and dispute between the bench and counsel for the mother as to one portion of that evidence in particular.
These proceedings being under Part VII of the Family Law Act 1975 and are, accordingly, also subject to Division 12A of Part VII, which allow and permit some degree of judicial management and intervention in proceedings, including administering questions to parties, adopting less formal processes, limiting the scope of evidence or cross-examination and the like.
Those powers, which came into being with the 2006 amendments reflect, in effect, the provisions of Part 6, Division 3 of the Federal Magistrates Act 1999, which has been in force since 2000 and which is the legislation under which this court is convened. That Act, not only within the part and division referred to, but other portions thereof, authorise, allow and permit a Federal Magistrate to ask questions during the course of proceedings. Indeed, s. 63 makes expressly clear that the Court may put a question to any person giving testimony if the questions are likely to assist in resolution of a matter in dispute, or assist the expeditious and efficient conduct of the proceedings, and any person questioned is required to answer, and indeed, an offence punishable by six months imprisonment is created by s. 65 in the event that a witness fails to answer a question put to them.
As I have indicated there is very little factual dispute in these proceedings, but I propose to deal briefly with the evidence of each of the parents and of Dr B, as that evidence will form the substance of the decision that I am called upon to make. Again, at the outset, I indicate clearly that this is not a case in which I find that credit is either in issue or is a substantial matter upon which I can or need to base any decision.
I have found both Mr and Ms Krum to be honest and truthful and caring parents who have done their best to assist this court to understand what they are experiencing, what their children are experiencing, their motives, their interests and desires, and I wholly and sincerely accept that each parent has given their evidence candidly, frankly and genuinely.
Dr B
Dr B’s report was substantial. His lengthy report had become available to the parties only shortly before Christmas and accordingly there was little opportunity for it to be used as a settlement tool between the parents. In any event, that is not the primary purpose of a report prepared pursuant to s. 62G or Part 15 of the Federal Magistrates Rules 2001. The purpose of the report is to forensically assist the Court to make a decision. It is trite, and was referred to in submissions by counsel on behalf of Ms Krum, that if a factual matter is relied upon by the report writer that it must be proved in evidence. That is so, but there is, as I have indicated, very little factual dispute.
And the major area of factual dispute, upon which Dr B was attacked, related to issues regarding assertions of primacy of parenting, which issue I will deal with discretely after I have dealt with Dr B’s report.
Portions of the report are of particular significance and ultimately were pursued with some vigour in cross-examination. Commencing at paragraph 8 of the report, dealing with Dr B’s interviews with Mr Krum, the following is described:
Mr Krum believed that Ms Krum has a strained relationship with his extended family and his parents and consequently will not facilitate communication and visits between his family and the children once she relocates to Germany. Ms Krum believes that living in Germany will give the children the opportunity to meet their British/Irish relatives more frequently.
The relevance of that paragraph is that Mr Krum’s extended family, by and large, lives in Melbourne, although there are some significant members of his extended family that live close by to his present residence, including an aunt who lives in the same suburb. That person was the subject of some considerable comment and question in the proceedings, although she was not called as a witness. The strained relationship between Ms Krum and Mr Krum’s extended family was conceded in evidence by Ms Krum and, in fact, referred to in her affidavit material as well as touched upon in cross-examination. However, I do not accept whether in the past, the present, or in the future that Ms Krum would take any active step to not facilitate communication between those relatives and these children, or that she would impede, in any way, that relationship through word or deed.
Certainly, whilst the relationship has been strained for some years there is no issue that these children have continued a relationship with extended family, including their paternal grandparents, who seem to be very much at the fore of the strained relationship, and that this has continued unabated, and including – for the first two or three days of this hearing – when these children were spending time with those grandparents in Melbourne.
The next portion of Dr B’s evidence follows upon the administration of psychological profile tests to each of the parents and nothing of great significance arises from this. But in paragraph 57 Dr B’s reports the following:
Ms Krum spoke fondly of her children and described them in affectionate terms.
I pause there to remark, that on the basis of what is noted by the Independent Children’s Lawyer and Dr B, that these are delightful children and it is far from surprising that Ms Krum would speak fondly of them.
She briefly overviewed their school activities, hobbies, strengths and weaknesses. She reported a good relationship with Mr Krum, ie. limited conflict, although admitted facing greater difficulties recently holding it together for the sake of the children. Ms Krum commented that she had spent a long time feeling intimidated by Mr Krum due to his physical size and capacity to raise his voice during arguments.
The relevance of that aspect is that whilst the comment is made by Ms Krum that she has felt intimated, I do not find anything in the evidence that would give any credence to that, other than the clear differences between these parents and their intellectual processing. Whether that arises – as has been remarked upon by the Vice Chancellor of Macquarie University in his Vice Chancellor’s address yesterday – from the difference in scientific-based thinking and more emotive thinking that Ms Krum may or may not engage in, and without that being critical of either parent’s thought processes, is unclear, but I am not satisfied that Mr Krum has engaged in any overt or proactive behaviour that could possibly be a reasonable basis for causing Ms Krum to feel intimidated by him. To the extent that he has certainly opposed, it would seem not only this move, but the move from Melbourne to Sydney, that may have been frustrating, but certainly, there is nothing in this case that falls within the domain of family violence, abuse, intimidation or any of the other behaviours that, within a broader social science definition, if not the Act’s definition of family violence, could be pointed to.
Indeed, there would not appear to be, in the present breakdown of this relationship and the circumstances that give rise to these proceedings, anything that resembles intimidating behaviour by Mr Krum, and indeed, it would appear the decision-making processes of each parent are at odds and that perhaps causes each to feel that the other is seeking to take control, or has done so.
The other important aspect of that evidence from Dr B is that, in brief oral evidence at the commencement of her examination, Ms Krum indicated that a number of matters had transpired since her affidavit, including, on one occasion, [X], after an argument between these parents – it being anything but surprising that whilst living separately and apart under the one roof and conducting these proceedings, the subject matter of which is very much, based on the parties’ proposals, a win or lose for these parents – that their arguing has increased. It is reported that [X], during or following an argument, had locked herself in a cupboard. In the evidence of each of the parents it was acknowledged that this had occurred and Mr Krum indicated that he was the one who had found [X] and got her out of the cupboard and calmed her.
Dr B interviewed [Y] and [X] at some length. In relation to [Y] he described him as a polite and delightful young man who was intelligent and articulate. He was described as demonstrating some level of anxiety, which is hardly surprising in the context that he was attending an interview with a complete stranger who was preparing a report, the recommendations contained therein likely to have a profound effect on his future. He goes on to indicate in paragraph 72:
[Y] described attending pre-school in Melbourne and enrolling in a pre-school for six weeks upon leaving for Sydney. He then commenced kindergarten at School E and has just completed year 4. His school report end of 2010 indicated that [Y] achieved overall sound performance at school. He appeared to be proactive in extra-curricular activities. He is an eager saxophonist and has been playing the musical instrument for two years. He reported attending swimming and tennis regularly, which he thoroughly enjoys. He conveyed his desire to play AFL, cricket and rugby, as well as wanting to learn how to sail. [Y] perceived himself as an average student.
Nothing remarkable arises in relation to [Y], other than, quite clearly –and the evidence would not appear to place it at all in dispute – he’s a lovely boy; he’s clever, sensitive and loves both of his parents a great deal.
When [Y] was asked his views on the current situation Dr B reports as follows at paragraphs 75, 78 and 79 respectively:
He reported that he took the news quite well the first time round, but lately he has been thinking of the bad things, such as having to leave dad behind. He said that he tries to get his mind off it by thinking of positive things. [Y] was asked to reflect upon the hypothetical situation whereby he relocates to Germany. He stated that he would miss spending time with his dad, doing fun stuff, like working in his workshop; going camping and kayaking; playing sports, footy, cricket and karting, and he would miss his dad’s car racing. When asked, “If you were the judge, what would you say to this mother and father,” [Y] replied, “They should really work things out and be together, but if that doesn’t work then let them go separate ways if dad wants to stay and mum wants to go. Maybe each parent has a child each.”
Again, to the great credit of these parents, neither of them advanced any proposal in line with [Y]’s final comments. Indeed, Dr B made it clear that one couldn’t place any real weight upon that as being an expression at all of how [Y] really felt or what [Y] really wanted. It was described in a comment pertaining to paragraph 79, that [Y]’s comment demonstrated:
“…..slightly beyond his age, quite a mature notion of distributive justice dividing according to equality and fairness whereby the recipients receive the same share whatever their input. That being said, he still reasons like a child gradually transitioning into adolescence”.
I certainly do not propose to split these children or to place any weight upon that wish, other than it being – in slightly different terms than Dr B perhaps expresses – in my mind a clear expression of the trauma and the hurt that these children are experiencing and I accept are about to experience to a far more significant magnitude, as these children have not yet had time to adjust to the fact that their parents will be separating. Whilst the parents have, for the last few months, been separated under the one roof, these children have no lived experience of their parents being in separate households, let alone separate countries, other than brief periods of time of no more than two weeks at any one time when each parent, for somewhere between 40 to 60 days/nights per year, at different times, has been absent from the home either pursuing their own interests or work commitments or both, but in any event, having had the security that the parent will return, most assuredly, barring disaster, and has always returned.
In speaking with [X] she was noted by Dr B as being pleasant, well-mannered and a socially mature child. He remarks in relation to his interview with [X], at paragraph 86:
[X] described attending pre-school, kindergarten in Melbourne. She was enrolled at School D before moving to Sydney the end of 2005. She is currently in year 5 at School E, having attended that school since the commencement of year 1. [X] appears to be highly committed and involved at school. Her year 2010 end of year report was reflective of a child with high levels of achievement who is clearly well thought of by all her teachers. At the second interview she disclosed that she had just been named as one of the school prefects for year 6; the nomination of which she was obviously very proud.
Ultimately, a file note came into evidence, being the record of a conversation between [X] and her school principal, which is exhibit M1. It suggests, indeed, that [X] is a child who is beyond delightful, but, in fact, selfless and sensitive. On being told that there was a possibility that she might in fact be school captain and that the position could be kept open for her until the outcome of these proceedings was known, she selflessly indicated that that wouldn’t be fair on the person to whom that position then devolved in the event that [X] wasn’t there to take up the position and that she would prefer that they simply passed to the next person and gave the position to them. She made a comment to the effect that she was happy that she had simply proved that she was capable of getting there.
It is suggested in submissions on behalf of Ms Krum that this reflects that [X] is not all that concerned and, in fact is more concerned with moving than with taking up that position. I think that there are also a number of other interpretations available of that action, one of which is that she is simply selfless, and that that would be consistent also, not only with the evidence, but the description of this child as pleasant, well-manned and socially mature.
Dr B also indicates at paragraph 88:
High school plans were also discussed. [X] disclosed that most of her friends will be attending School A and a few friends will be going to School B or School C.
Mr Krum was cross-examined at some length about his intentions with respect to schooling, and he indicated that School A, whilst a possibility, was an expensive school that might create difficulties, but if finances were available it may occur, but otherwise indicated that he has made inquiries of a number of schools, including School C and [X] is to sit the selective schools test and there may be a position offered for her within proximity to her home, and a number of other public schools, all of which are excellent.
In the portion of the report headed “Views on Current Situation”, at paragraphs 92, 94 and 95, respectively, the following is reported with respect to [X]:
[X] was encouraged to express her feelings and thoughts regarding a possible relocation to Germany. She was of the opinion that Germany was a good opportunity, but she remained adamant that she doesn’t want to live separately away from one parent. She stated that she has seen the photos of the school, village and the proposed accommodation following her mother’s recent trip to Berlin. When prompted to contemplate the Berlin scenario [X] said she would be sad and miss her dad a great deal. She said he was optimistic, encourages and teaches her a lot of new things and that she would really miss going camping with him. When asked, “If you were the judge, what would you do about the current situation,” [X] replied, “I have no idea.” She understands that her mother would be very upset if she asked her not to take the job and also understands why her dad doesn’t want to go to Germany. [X] clearly and repeatedly expressed that she doesn’t want to be restricted from seeing either parent for a long period of time.
Some submission was put that I would interpret the comments that [X] would miss her father in association with paragraph 135 of the report, to which I will turn shortly, and accordingly, that the report, on balance, favours the relocation, notwithstanding Dr B’s expressed recommendation to the contrary, and on the basis that paragraph 135 provides:
“….Conversely, the potential psychological harms due to a decision to refuse the application for the children to relocate – they presuming the mother does relocate – would include, but not be limited to, if the children are placed full time into the father’s care their prolonged separation from their mother, under conditions as detailed above, could lead to a significant short and long term impacts upon their development”.
I am satisfied, based upon a review of the transcript of Dr B’s evidence, as well as reading the report in its full context, rather than by selecting paragraphs in isolation, that Dr B has not intended to suggest delineation in the relationship between [X] and [Y] and each of their parents. I do not accept that I should read the report in the fashion that counsel for Ms Krum is disingenuous in submitting, cherry-picking portions of the report and setting them against the other.
I am satisfied, from what flows from Dr B’s evidence, that there would be a substantial and significant risk of short and long term psychological harm arising from these children being separated from either of their parents, as well as that being expressly contrary to these children’s expressed views. Separation and extended absence from either parent is simply not what they want. But [X], reflective of her intelligence and maturity, clearly understands that she is not going to achieve the outcome she desires. Her mother is relocating and she recognises that her mother wishes to pursue the move and the career advancement and that she would be upset if she was asked by [X] not to move. She also recognises and understands the detriments she will experience if she moves and doesn’t see her father as often.
One portion of Dr B’s questioning, and which arose from questions that I had put to Dr B the responses to which were not inconsistent with the responses provided by Dr B when cross-examined by counsel for Ms Krum, involved the very proposition that whilst potential psychological harm would arise if not given permission to relocate with their mother, is it the case though that those issues really are going to arise no matter what decision I make, because there is going to be the absence of mum or there is going to be the absence of dad. Following what I might, in a self-effacing fashion, call a somewhat longer convoluted conclusion to the question, the response from Dr B was “correct”.
When asked questions on the same topics by Mr Anderson the responses provided by Dr B, I am satisfied, were not inconsistent with the proposition I had put to Dr B and which was adopted by Dr B as correct.
The other issues that arise in relation to those portions of cross-examination arise from questions in relation to attachment and who has been the “primary parent” for these two children. Much dialogue occurred between Mr Anderson and Dr B regarding that very issue and ultimately concessions were made by Dr B that he accepted that Ms Krum had undertaken more of the physical chores with respect to the children’s care and upbringing, and certainly, in their very early formative years of life, would have been the children’s primary parent.
But his evidence ultimately came to the point of (a), not accepting any allocation of primary parenting to either parent and (b), not accepting that either parent had a better or closer attachment or relationship with these two children today.
When it was put at point 25, page 19, of Dr B’s evidence:
Mr Anderson “And she – being Ms Krum –remains the closer of the attachment figures between the two parents.
Dr B “No, I don’t. I would argue that counsel, only to suggest that in a cohesive married couple we have two active and interested parents, as that inference into childhood, the capacity to form a close primary attachment with the other parent figure is achieved, and we have two children with very close emotionally supportive relationships with mother and father.”
Mr Anderson “So you wouldn’t say that they had primary attachment with their mother which has continued throughout their childhood?
Dr B“I certainly would concede that, but I would be indicating parallel that they have a similar attachment to their father. I would not, and certainly want the court to understand that I would not construe their relationship with their mother or their father to have supremacy. That they see elements of complement and contrast in their mother figure and their father figure, and together the sum of those two individuals as parents has produced a wonderful union and obviously, except to this point, but a union capable of bringing forward two quite well-developed and well-rounded kids”.
In this regard Dr B was also questioned regarding some literature to which he had referred in his report and as being the bases of what he had typified as being a risk assessment approach to the proceedings, and to his offering of opinion. The risk assessment model that was referred to by Dr B was said to have largely arisen out of literature of Austin & Gould, published in 2006, in the journal of Child Custody and the AFCC Court Review respectively.
In the 2008 AFCC Court Review, William Austin, a noted Canadian psychologist, had produced a two-part article headed “Relocation, Research and Forensic Evaluation”. Part 1 of which dealt with affects of residential mobility on children of divorce and part 2, research and support of the relocation risk assessment model. Each of these papers took further the points from the material referred to by Dr B in his report.
Sagely, part 1 of that article commences with a quote from a case of Trepia from the United States indicating that:
Relocation cases present some of the knottiest and most disturbing problems that our courts are called upon to resolve. Of the many emotional consequences attendant upon the dissolution of a marriage, perhaps none is more vexatious than that precipitated by the desire of a parent to relocate with minor children of the marriage. Quoting a passage from Dupre (2004). The troubling aspect of relocation cases is that they present families in courts with the painful realities of change and loss associated with an alteration in the parent/child and other family relationships. The court is always faced with determining how to avoid or mitigate such situations that can become a lose/lose/lose outcome for the child and both parents. When there are two highly involved and competent parents –
as in this case –
with quality parent/child relationships –
as in this case –
either before and/or after the marital separation, and one of the parents wants to move with the child a considerable geographical distance then what is the court to do?
Austin opines a number of other factors in relation to residential mobility, a phrase used regularly throughout Dr B’s report and evidence. He indicates:
Divorce signifies a major transition in the life of parents and children. Many changes naturally occur within the family system. Moving residences is an important part of the increase in overall instability in the lives of children of divorce. Other alterations include changing school, losing touch with peers and classmates, acquiring new ones, meeting and maybe starting to live with the parent’s new partner.
Or in this case, as Ms Krum quite correctly asserts, having the opportunity to have a more fulsome relationship with her extended family, and continuing, so on. Austin also indicates:
A preferred theoretical explanation for the effect of relocation is organised under the sociological concept of social capital, (Coleman in 1990). This is a general concept and is defined in terms of the sources of support and resources available to children from parents, siblings, extended family, school, organised groups and agencies. It refers to social support, social networks, and common values. The type of support referred to under the rubric of social capital can be operationalised in terms of love, commitment, trust, educational behaviours, role models, guidance and so on. It is the non-economic and human capital that contributes to the long term development of the child. It is derived from the child’s relationships with family, extended family, peers, teachers, coaches and so on. Just as divorce creates a temporary loss in social capital (quoting McLanahan & Sandefur in 1994), relocation places the child at risk for a reduction in social capital. If divorce and relocation temporarily concur, then it follows that the child is at the greatest level of risk.
I pause at that point to note that this was a point very much laboured by Dr B in both his report and cross-examination.
This is a hypothesis that waits to be tested, but is endorsed by researchers (Hetherington & Kelly 2002) and is reflected in the relocation risk factors of recentness since marital separation in the risk assessment model which had indeed been advanced by Austin.
He goes on to indicate:
There will be some instances of relocation for some non-intact families that will benefit the children by producing better opportunities for a higher standard or living, increased social contacts, better schools and so on.
Certainly, Ms Krum’s case presented that the move to Berlin represented exactly those advantages, that the school in Berlin that was to be attended, it was suggested, was equal, if not superior, to that which these children – in particular, [X] – would be attending in Australia. That there were the opportunities for greater maternal family involvement, opportunities that would benefit [X] and her desire to pursue a career, at this point in her life, in fashion design and so on. It also indicates, in conclusion, one distinguishing feature of moves concerns distance:
And long distance moves are going to be qualitatively different with more disruption to relationships and activities associated with long distance moves.
In part 2 of the same article, Austin identified a number of important risk factors consistent with the comment offered by Dr B. He indicates:
Protection in the face of relocation is generally afforded by developmental maturity, though adolescence creates its own risk; shorter geographical difference; higher psychological resources and good coping skills of the relocating parent; effective parenting; history of low conflict and good communication between parents; the ability of the relocating parent to be a responsible gatekeeper and not hinder the other parent’s access to the child.
I am satisfied, other than the substantial geographical distance, none of the other impediments or risk factors there identified apply in this case.
The main protective factor is the quality of the relationship between the child and the residential relocating parent. Research has identified the importance of this factor in assuaging the child’s adjustment. When the child has a positive relationship with one care giver who shows warmth to the child and exercises an effective and authoritative parenting style, then adjustment is enhanced,
quoting Kelly & Emery, Hetherington & Kelly. This factor was at the heart of contentious Californian debate on relocation, which is, for the purposes of this case, not relevant.
The specific risks and risk factors and protective factors are then unpackaged – to use the wording of Dr B – as being:
(1), the age of the child. More risk is associated with young children than with adolescents relocating following divorce. Kelly & Lamb (2002) summarised the theory in research relevant to young children. The risk follows from research which shows the potential long-term negative effects from disrupted attachments. That does not apply, with respect, to these children, who I am satisfied have a well, stable, settled, deep abiding relationship with both parents. A relationship that could only, in the terms as described by Bennett J and as generally accepted, a meaningful relationship.
The second risk factor is identified as geographical difference and travel time. There is no dispute in this case that one cannot, at this point in time, fly directly from Sydney to Berlin, and there has to be at least one stopover. The flight, including the stopover, would appear to be something in the order of 30 hours. Certainly, by any stretch of the imagination, a long haul flight. These children also are not of an age where they can presently travel unaccompanied and Ms Krum’s evidence, at least, was that she would not see that occurring, even if it were permitted, at this point. Accordingly, there will be substantial practical difficulty and cost. But in any event, Austin indicates:
Geographical distance and time create practical obstacles to the continuation of the child/non-resident parent relationship by limiting the degree of parental involvement. Hetherington found that a distance of 75 miles between the child and parent or more than a comfortable day trip, often resulted in the parent dropping out of the child’s life.
I am satisfied in this case neither parent is going to drop out of these children’s lives, notwithstanding the difficulties that are placed between them.
Thirdly, psychological stability of the relocating parent and parenting effectiveness of both parents;
…psychological stability and resourcefulness of the relocating parent will help position the parent to enable the child in coping with the stress associated with the potentially negative life transition event of relocation. This is a resource availability perspective and assumption on children’s adjustment to relocation. Four, individual resources and individual differences in the children’s temperament or special developmental needs.
These children do not have special needs, although they are children whose views have been expressed and as Dr B has indicated, their views can be relied upon to do nothing more than to reliably make clear what they do not want, ie. to lose either parent, which will occur on either parent’s proposal. He goes on to indicate:
Cognitive ability appears to be a consistent predictor of better adjustment. So information from school records is important. These children are doing well. The child’s social/emotional IQ also would be important.
Fifthly, involvement by the non-residential parent: interestingly, it is indicated by Austin at this point:
The data could not be clearer on the issue that children of divorce show the best long-term adjustment when they enjoy quality and meaningful relationships with both biological parents in the presence of low conflict, quoting Armato & Sopoluski, and King & Sopoluski (2001 and 2006) respectively. In addition, theory and research on the role of fathers shows the importance for children in having non-residential father involvement, Lamb (1999). The tangible benefit and impressive research finding is the benefit to children’s educational achievement from non-residential father involvement, perhaps something as seemingly as simple as attending a parent/teacher conference and especially if the parent plays an advocacy role for the child’s educational needs.
Sixthly, gatekeeping and support for the other parent’s relationship. I am satisfied both parents will be entirely appropriate in fostering, encouraging and recognising the importance of these children’s relationships with the other parent and other parent’s family.
Seven: inter-parental conflict and domestic violence. There are no issues of domestic violence and I am satisfied, that to the extent that there has been conflict on an escalating basis in separation – it is (a) explicable; (b) within the context of recent separation under the one roof, and (c), far from excessive and entirely non-physical, and indeed far less than one might expect in the circumstances.
Eighthly, recentness of the marital separation:
In considering the timing of relocation research shows that conflict will be higher and more frequent during the process of divorce. A hypothesis follows from the above study – being a study of Hetherington – in Hetherington’s long-term longitudinal research that relocation occurring at the time of divorce would be more likely to contain higher conflict, less authoritative parenting, greater parental stress and poorer adjustment for children. Hetherington & Kelly caution: normally change should be avoided after divorce. At a time when their world is in a flux children need the stability and continuity conferred by familiar relationships and settings. This statement appears to assert a familiarity hypothesis but it would seem to more accurately reflect the benefit to the child from consistent association with his or her sources of social capital.
The other aspect of the argument advanced in Ms Krum’s case and put at some length to Dr B relates to the notion as to whether Ms Krum is or is not the children’s primary carer.
A useful article of Dr Richard Warshack, headed “The Primary Parent Presumption: Primarily Meaningless”, casts some light upon the difference present by each of the above. It indicates as follows:
Women do not enjoy living apart from their children any more than do men. Also, women do not want to relinquish the power that goes with custody.
I don’t accept for one moment in this case that there is any issue as to gender or anything other than each parent having a genuine belief that what they are proposing is best, and accordingly, to that extent such comment by Warshack is not applicable to this case. He goes on to indicate in relation to the dynamic between increasingly involved fathers and the difficulties this potentially is seen to create on separation:
The solution to this dilemma is the linguistic sleight of hand known as the primary parent presumption. This guideline would give preference to the parent who is designated primary in the child’s life, variously defined as the parent who spends the most time with the child, is more responsible for the child’s day-to-day care or performs more of the daily repetitive maintenance tasks such as chauffeuring –
much dialogue had occurred between Dr B and Mr Anderson as to whether taking children to or from school on fixed percentages represented primary parenting or travel. It continues:
shopping for clothing, preparing meals and bathing. Although touted as a gender-neutral standard, everyone agrees that the primary parent presumption would give mothers the same advantage that they enjoyed with the tender years presumption. In fact, law professor, Mary Becker, advocates dropping the pretence of gender neutrality and renaming the primary parent presumption the maternal deference standard.
This court does not propose to engage in that dialogue of gender neutrality or otherwise. But the article continues on:
Unless we regard custody –
as the Americans still term it –
as a reward for past deeds, the decision about the children’s living arrangements should reflect a judgment about what situation will best meet their needs now and in the future. Differences in past performance are relevant only if they predict future parental competence in child adjustment, but they do not. The primary parent presumption overlooks the fact that being a single parent is a very different challenge than being one of two parents in the same home. The consensus of research reveals a predictable deterioration in the single mother’s relationship with her children.
After divorce the average mother has less time and energy for her children and more problems managing their behaviour, particularly that of sons. Research has also demonstrated that despite mothers’ greater experience in daily child care fathers who would not be considered primary caretakers during the marriage are as capable as divorced mothers in managing the responsibilities of custody. And most importantly, their children fare as well as children do in mother custody homes; a more basic problem with the proposed standard, how do we determine who is the primary parent. Before divorce parents think of themselves as partners in rearing their children. Whether or not they spend equal time with the children, both parents are important and mountains of psychological research support this.
Before divorce we do not rank or order parents. Only in the heat of custody battles do mum and dad begin vying for the designation of primary parent. Research has established that beyond a certain minimum the amount of time the parent spends with the child is a poor index of that parent’s importance to the child, and the quality of their relationship or of the parent’s competence in child rearing. If more extensive contact does not make a primary parent, what does? Most definitions provide a list of responsibilities. The primary parent shops for food and clothes, prepares meals, changes diapers, bathes and dresses the child, takes the child to the doctor, drives the child to school and recreational activities. Such criteria though ignore the overriding importance of the quality of parent/child relationships. We can say that both parents contribute distinctively to both their child’s welfare.
That, as I indicated, is the gravamen of the issue upon which so much of Mr Anderson’s cross-examination of Dr B and was based. Dr B was rejecting of any classification as to primary parent. Indeed, case law of this court since the 2006 amendments, commencing with Goode& Goode, and through each case thereafter, has suggested that whilst history and assessment of past arrangements has some utility in assessing the likely success or otherwise of future arrangements, that really the Court’s focus is prospective, and the Court’s role is to determine what arrangements will best work in the future (see for instance Carmody J in Dylan& Dylan).
The family report of Dr B also then canvasses, in order, each of the s. 60CC considerations. He indicates that both parents have a strong positive relationship with both children and that both children have a strong positive relationship with each other.
It is suggested that [X] demonstrates
“…a sound understanding of the current situation, but seeks to avoid discussing the topic unless there is an absolute need for it. She voiced a view that she believed Germany is a good opportunity, but she was adamant that she didn’t want to live separately from either of her parents. She appeared to be grieving and was very teary and distressed during this phase of the interview. I would argue that in a similar matter to [Y]’s fantasy reunion, but at more mature level of comprehension, [X] simply cannot contemplate living separately from either parent, and it is to be remembered that she has not yet had to”.
Both children continuously refer to their desire to not leave one parent behind, irrespective of where they life. [X] is reported as having been very clear that her preferences would be to live with both parents in Germany, or both parents in Australia, without an apparent distinction between them or ranking of priority. That was as far as [X] would be taken in relation to expressing a positive wish, although both she and [Y] were very clear in their negative wish.
When questioned in relation to subsequent actions by [X], it being Ms Krum’s evidence that she had firstly received positive endorsement of her proposal from [X]’s school principal, and secondly, that [X] had indicated to her, as recently as last week, that she had indicated that if left with her father in Australia and her mother moving to Germany, that she would run away, go to her father’s sister, who lives in [omitted], and borrow money to then fly to Adelaide, where a relative of Ms Krum lives and then borrow further money and seek assistance in arranging to travel to Germany, that this represented a change in [X] from that reported by Dr B, and she now had a positive desire to go to Germany. That is possible. The other possible interpretation, however, and which I had put to Ms Krum, was that in fact, that is perhaps a realisation in [X]’s mind that this is all about to become a reality, and that in that context, she is trying to make sense of all of this. In any event, I accept Ms Krum’s evidence that [X] said these things to her. What they mean for [X] is slightly less clear.
Dr B was questioned at some length about a catalogue of potential difficulties that would face these children, if they relocated with their mother and left their father. He indicates that there does not appear to be a primary parent, per se. He goes on to clarify that this is to say, up and until now, both parents have resided together and shared family household management tasks and responsibilities between them, the children have known no other form of care. That is certainly consistent with Warshack’s article to which I have referred.
Dr B also indicates, similarly, that there has been no period of parental separation, and currently, even as a separated couple, they continue to reside under the one roof, thereby having the children to believe little has changed, though at the same time, compounding or potentiating the quantum of shock that lies before them at the outcome of the hearing, at which time, and in the very immediate future, a very real physical separation on different continents will occur. Ultimately, at paragraph 137 of his report, Dr B opines as follows:
I would suggest caution to the court when considering the extent of the suggested changes to the future living arrangements of the children. [X] and [Y] are 11 years and 9 years respectively. Transitioning to adolescence, there is a potential for adverse impact on the children simply as a result of the recent separation that has yet to crystallise beyond the parameters of the main bedroom, and that is assuming both parents located in geographically reasonable locations sufficiently to allow a shared care arrangement. The current application takes this concept many steps beyond that to include an international relocation. Consequently, I am of the opinion that in the children’s best interests and what I consider to be the least disruptive in their lives, would be for the children to remain in Australia whereby shared equal responsibility would apply. Given in the future the children successfully adjust and settle with the new living arrangements, that is, living under a one parent household, while at the same time maturing and becoming more independent, a future relocation could still be contemplated.
Dr B at that point created a proposal for something of the nature of a 9 to 12 month hiatus in the proceedings to allow the relocation to occur by Ms Krum, the children to remain here, and to review the matter once the children have experienced the separation of their parents. That may result in, as the quaint phrase goes, absence making the heart grow fonder, it may result in the children becoming settled in arrangement. Both parents agreed that it was not in their children’s best interests to continue uncertainty or potential dispute between them, and I accept their wisdom in that regard.
The other aspect that then flows from Dr B’s evidence is similar to some case law that was found in the course of research in this case, being a decision of the now retired Warnick J in Goodner & Jepperson [2009] FamCA 1052. At the commencement of day 3, a copy of that authority was provided to all parties and the Independent Children’s Lawyer, some time taken to examine whether an approach similar to that adopted by his Honour in that case, and which was not dramatically at odds with the middle ground proposed by Dr B, might be adopted. The matter did not resolve, and accordingly, the hearing completed.
Dr B’s evidence, on balance, suggests that the children should remain in Australia, which would of necessity, involve them living in a single parent household with their father. It was certainly submitted that the approach taken by Dr B of a risk assessment model, and looking at the least disruptive option, did not discharge the Court’s requirement to consider the children’s best interests as paramount.
Without necessarily accepting the conclusions reached by Dr B, I am not satisfied that to advance an opinion based on the arrangement that is in the children’s best interests as being least disruptive is to, in any way, depart from the Court’s requirement to make the order on a positive exercise of discretion as to what is in the children’s best interests, particularly having regard to the social science literature to which I have referred regarding the impact of mobility, relocation, particularly immediately upon or consequent with separation and the impact that that would have on the social capital of these children, such as it is present.
In relation to the parents’ relationship, the other aspect of their relationship that was commented upon as being different and differentiating between these parents is that [X] had indicated that her mother, she felt, was the person who listened to her more, and to whom she turned with respect to matters relevant to her adolescence, particular as she transitions to be a young woman. There was evidence as to [X] having gone to her mother in relation to removal of body hair. No doubt, if not already, [X] will, in the near future, be facing issues with respect to menstruation and other social issues that will arise.
It was conceded by Dr B that it is critical that [X], and one would think, by inference, in due course, also [Y], have a role model of the same gender who can assist them with those transitions. It is not intended, nor is it suggested by Dr B, nor is it in any way implied by these reasons, to suggest that a role model can in any way – of the same gender as the child or otherwise –replace a parent. So much was said quite clearly by Dr B. Certainly, the state of psychology in 1975, when the Family Law Act came into being, was perhaps such that it was generally accepted that children, as long as they had positive role models in their life, could cope perfectly well without a parent, but with the benefit of 35 years of hindsight into the outcomes that were produced through that logic, one can see that we have moved away from it, and justifiably so.
The role model issue in this case could in some regards be typified in the circumstance that Flohm J, now retired, used to refer to as the “loaded gun hypothesis”, that if a parent is proposing to leave, and there is something strong in support of their remaining the carer of a child, that then holds a loaded gun to the Court’s head. I do not for one moment accept that that is Ms Krum’s intention, nor that she has in any way formulated her position for that reason.
As I have already indicated, I accept that both of these parents genuinely and wholeheartedly want what is best for their children, and see that was is best for their children is the proposal that they put, albeit for different reasons. So much was put clearly by Ms Krum in her evidence, that she sees that the move to Berlin is what is most assuredly best for her, and that the children’s best interests correspond with that. Mr Krum does not go quite so far, but makes very clear, cogently and plainly, the basis upon which he sees these children can and should remain in Australia, and to a large extent, whether opportunistically or otherwise, adopts the positions advanced by Dr B in his evidence.
In relation to the concept of the meaningful relationship, the decision of Brown J in Mazorski & Albright [2007] FamCA 520 that dealt with that issue somewhat authoritively following the 2006 amendments. To the extent that it is not already clear, I am satisfied that both of these parents presently enjoy an excellent and meaningful relationship with these children and each of them. I am also satisfied, in accordance with Dr B’s evidence, that the move that is going to occur, irrespective of where the children remain, is going to have a dramatic impact upon the relationship these children enjoy – or at least potentially so – with the other parent.
When asked questions in that regard, commencing at page 45 of the transcript, being questions put by Ms Krum’s counsel, that these children, already enjoying an excellent relationship, would continue that relationship with the benefit of technology and two visits per year, which perhaps is a logic that flows from decisions of Brown and Dessau JJ in relocation cases. Dr B indicated:
I would differ, and suggest that that –
[being regular use of technology and two face to face visits]
will assist them to maintain a relationship, but that relationship will be diminished, and the impact of time and geography will have a profound effect on their relationship.
It then continues:
What I want to suggest to you is that the quality of the time spent with that parent, with the father, is more important than the quantity of time spent with the parent; would you agree with that?‑‑‑No.
You wouldn’t?‑‑‑Given, yes, obviously, I focused on this matter, and that the proposals as I have currently received them, were looking at two three week periods across a calendar year – that’s effectively six weeks of 52, which will be rough fractions of 10 per cent of a year, slightly more. I don’t know how children will maintain a meaningful relationship with a parent in 10 per cent of a year.
But that’s a quantitative assessment, isn’t it, not a qualitative assessment?‑‑‑Well, we need one to have the other, and in the absence of quantity, it’s difficult to achieve any degree of quality, that’s only going to be a relative thing. So if contact is reduced to such a small amount, it won’t matter the quality of it. It’s simply that contact has been reduced so that the notion of meaningful relationship is effectively negated.
Again, the difficulty in this case is that there is a stark reality, irrespective of which parent’s proposal is acceded to.
This court, as indeed do the legal practitioners for the parties, the family dispute resolution practitioner with which the parties have consulted, and any other family advisor, have an obligation to make available to these parents all the sources and information necessary to enable them to try and salvage their relationship. I assume that that has occurred since April when the difficulties began to arise.
It is not within my power to order reconciliation, nor would it be a useful exercise of discretion I feel. However, these children, whether it is put on the basis as Dr B has opined, of it representing a degree of naivety, or indeed, a fanciful desire to not accept the reality of what is about to come, want their parents to stay together, and if that cannot be achieved, want them both in their life in the same country. Regrettably, that will not occur, and to the extent that it is suggested that each of these parents are listening to their children, that is perhaps the one shortcoming I can find in either of them.
Areas for Determination
At the commencement of the case there was dispute as to whether there would be equal shared parental responsibility. The minute of order tendered by each party no longer continues that dispute, and I propose in due course, to make an order for equal shared parental responsibility. While there will be some logistical difficulty with distance, it is not insurmountable in this day and age. The technology that is available to enable these parents to communicate with each other, let alone their children, is such that I have no doubt whatsoever that equal shared parental responsibility will not be a fantasy, but a very real and achievable outcome.
The other issues for determination on a simplistic level are: do the children stay or do they go? More fundamentally however, and connecting with the role of this court under the Family Law Act, is to determine how these children can best continue their relationship with each of their parents.
Time and any order of a specific nature, such as an order permitting or restraining relocation is nothing more than a function of achieving the Court’s primary consideration under s. 60CC of meeting these children’s need and right, all other things being equal, of a meaningful relationship with both parents.
As I have indicated, the legislative pathway requires that I commence with the consideration of the objects and principles in section 60B, and they were somewhat enlightening in this case, having regard to their focus upon the importance to children of having a meaningful relationship with and involvement by their parents in their lives.
The objects provide that the legislation is intended to ensure that the best interests of children are met by: (a) ensuring the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; (b) protecting the child from physical or psychological harm, which I am satisfied is not at all an issue in this case; (c) ensuring the children receive adequate and proper parenting, which I am satisfied they will from either parent at any time; and (d) ensuring the parents fulfil their duties and meet their responsibilities.
I am perfectly satisfied both parents have and will continue to meet their responsibilities and duties to these children.
The principles underlying the objects are that: (a) children have a right to know and be cared for by both their parents, which they will, albeit in dramatically disproportionate amounts; (b) children have a right to spend time on a regular basis and communicate on a regular basis with both their parents – clearly, the relocation is the issue that will preclude the children spending time on a regular basis with both parents, unless one takes the esoteric step of suggesting once every six months is indeed regular; (c) parents jointly share duties and responsibilities; (d) parents should agree about future parenting; and (e) children have a right to enjoy their culture.
These are not matters of any great moment in these proceedings, although there was passing comment in Mr Krum’s evidence to his desire that the children not lose their “Australian culture”. I am satisfied that a move to Berlin would not in any way cause that to occur.
In relation to the case law that is relied upon, I have been referred by the parties to a number of precedents, and refer to those and to a number of others.
An excellent review of the history of relocation decisions, not only within Australia but also overseas jurisdictions, was undertaken by Carmody J, now retired, in the case of W & R [2006] FamCA 25. Those cases referred to by His Honour are all, of necessity, determined prior to the amendments.
I have also had regard to case law of Goode & Goode, Marvel, Pitkin & Hendry[2008] FamCA 186 and Lansa & Clovelly[2010] FamCA 80 regarding the general approach to the application of the Family LawAct to facts and circumstances.
I have had regard to the High Court’s decision in MRR & GR [2010] HCA 4 regarding the importance of practicality to any arrangements as well as the case of Goodner & Jepperson, to which I have already referred, as well as relocation cases determined by the Full Court after the amendments and remaining of significance, Starr & Duggan[2009] FamCAFC 115, AMS & AIF (1999) 199 CLR 160, U & U, Taylor & Barker [2007] FamCA 1246, McCall & Clarke [2009] FamCAFC 92, Hepburn & Noble [2010] FamCAFC 111, Eddington & Eddington number 2 [2007] FamCA 1299.
Perhaps the most useful description of the process to be adopted in any parenting case, but in the specific context of relocation, are the two decisions of Murphy J in Pitkin & Hendry and in Lansa & Clovelly. His Honour at paragraph 1.6 sets out succinctly the approach that should be adopted:
A relocation case is not a specific sub category of parenting case, and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
Next:
A relocation case falls to be determined like any other parenting case. The fact finding exercise required by s. 60CC is directed towards ultimate findings about the children’s best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time. Relocation cases, like all parenting cases involve the determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children.
In that way, best interest is the paramount but not sole consideration. Whatever be the nature of the order informed by findings as to best interests then includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular.
All parenting cases require precise proposals by the parties, including, if thought appropriate, alternate proposals. The proposals are, or should be, the expression of each party’s assessment of the children’s best interests, relocation cases are no different.
The issue of relocation and necessarily the parties’ proposals in respect of same should not be considered separately from the issue of best interests. Indeed the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.
The Court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the Court accordingly. Findings in respect of the relevant s. 60CC considerations and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial significant time, whether because s. 65DAA mandates it or because either it is a proposal of the parties or looms as a potential order.
Findings relevant to s. 65DAA, if applicable, can, and often more appropriately, should, be made as part of the s. 60CC exercise, because although requiring a specific process, any s. 65DAA considerations are found ultimately in the findings as to best interests. Findings necessary to underpin an ultimate finding of reasonable practicality can be, and often more appropriate are, conducted as part of the s. 60CC exercise. Any specificity inherent in those s. 65DAA subsection 5 factors which do not overlap with s. 60CC considerations can often readily be accommodated within the s. 60CC exercise.
As best interests govern the s. 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to ss. 5 within the overall assessment of best interests. Of course, those findings must be applied as the s. 65DAA process requires. The abrogation or curtailment of parental responsibility with respect to a long term issue involves a serious interference with fundamental rights, and the balance of his Honour’s comments in that regard I don’t recite, as they are irrelevant to this case, as I do propose, as each party urges me to, to make an order for equal shared parental responsibility.
The s. 60CC considerations in this case, as I have indicated, are addressed verbatim by Dr B in his report. To the extent that they have not already been covered, I propose to deal briefly with each of them.
Section 60CC commences with two primary considerations, which are reflective, to a large extent, of the social science literature to which I have already referred, and to which Dr B had referred, as well as being consistent, to a large extent, with the International Convention on the Rights of the Child.
The two primary considerations, when they are in conflict, create a difficulty for the Court in seeking to prioritise them. There is presently serious and significant debate regarding amendment of the Act to clarify those issues, but in my mind, there is and never has been any need for clarity. Children must be safe, they must not be exposed to physical or psychological harm as the second primary consideration refers, and accordingly, if there is a risk that is unacceptable, then the meaningful relationship takes very much a back seat. Indeed, it would be difficult to envisage circumstances wherein there is a perceived risk or has been past conduct of such a nature, wherein a meaningful relationship could blossom.
I am satisfied in this case there is no issue with respect to the primary consideration regarding risk, which leaves purely the primary consideration of the benefit to the children of having a meaningful relationship with both parents.
The additional considerations can stand on their own, but are also useful to inform the primary considerations.
In relation to the children’s views, as I have indicated, these children have expressed very clear views which reflect what they do not want. They do not want their parents to separate, but that is going to occur. If their parents do separate, as appears inevitable, they do not want to lose either of them, ie., they want to be able to see both of the parents on a regular basis and with frequency and quality. That is not going to occur either.
The nature of the relationship the children have with each parent, as I have indicated, I am satisfied is excellent.
Subsection (b) also requires that I consider the relationship the children have with any other person, including any grandparent or any other relative. In relation to the evidence that has been given, I am satisfied that these children enjoy a good relationship with their paternal family. I am also satisfied they enjoy an equal level of affection and an equal relationship with their maternal family, albeit the quantity of time that is available to them and the number of opportunities to experience and enjoy that relationship has been far more limited.
These children also have a number of other relatives in Australia, including relatives of both Ms Krum, although somewhat more distant from the parties’ home, and Mr Krum, which includes his sister, Ms J, who lives in close proximity. There was much evidence given and much cross-examination as to the role that Ms J would or could play in filling what was seen as being the critical element of a female role model for [X] if her mother is absent, and/or, more correctly, if [X] is not living full time with her mother. I am satisfied, from Mr Krum’s evidence, that there is certainly a relationship there. There is evidence, indeed from Ms Krum herself, that [X] has a sufficiently close, accepting and protective relationship with her Aunt Ms J, that when she had indicated that if she was not living with her mother in Germany, she would run away and seek assistance from relatives to get to Germany – the first person she was going to go to was Ms J.
Very little tips the scales in either parties’ favour in that regard, although to some very slight extent, it favours Mr Krum.
The willingness and ability of each parent to facilitate the children’s close and continuing relationship between the other parent is criticised in each parent’s case, although I am perfectly satisfied neither of these parents would do anything to interfere in the children’s love, affection and relationship with the other parent or extended family, notwithstanding their own personal feelings.
Mr Krum, in submissions, is somewhat critical of Ms Krum in prioritising her employment opportunity and desire to advance her career above the need for her to maintain, based on her proposal that she will relocate to Berlin even if the children do not accompany her, her own relationship with these children. I do not accept that that is Ms Krum’s intention, although it may follow. Dr B was also questioned as to whether these children might experience or perceive some degree of abandonment if they remained in Australia with their father, by and of their mother, and he agreed that is possible. He also agreed, however, that there could be some substantial resentment by these children towards the parent with whom they live having regard to their desire to not lose either parent. Accordingly, there is going to be some difficulty for these children in adjusting either way.
(d) the likely effect of change. The changes that are about to befall these children are substantial and manifest. I accept Dr B’s evidence, as supported by the literature to which I have referred, that the potential enormity of impact is heightened by the fact that these children have not, to date, experienced anything other than living within an intact family, or for the last few months at least, living in a family which bears a remarkable resemblance to an intact family, even though the parents have separated under the one roof.
Perhaps unwittingly this has been continued to some extent in the children’s minds as these parents, who have conducted themselves with such dignity and maturity, have undertaken joint activities over Christmas to enjoy their last Christmas as a family, and to try and make it easier for these children. I wholeheartedly accept that that is what they have done and why. However, the analogy put by me to Dr B was that these children presently have two hand grenades in their lap, both of the pins are about to be pulled, one of the facts that their parents are separating and their marriage is over and these children will no longer live in an intact family, the other being the very immediate loss of one of their parents, as Ms Krum is very shortly to move to Berlin.
I am satisfied that there are going to be very substantial changes for these children, particularly as a consequence of separation from on of their parents. The section also requires, however, that I consider the likely effect of any change in circumstances arising from separation from any other child or any other person, including grandparents or other relatives with whom they have been living. Clearly, these children don’t live with anyone other than their mother and father, although, grandparents have visited from time to time and they have spent time with their grandparents for periods of time during school holidays. These children do, however, have a stable, settled network in place – what has been referred to in Austin’s material as “social capital” – of schools, sporting teams, and the like. They will be separated from those on one proposal.
(e) practical difficulty and expense. Again, this is manifest – both of these parents are well educated, have good employment, and good middle class incomes, but that is what they are, middle class incomes. Neither of these parents are rich. There will be substantial cost, particularly as, as I have indicated, at least for some little while, some few years, as these children cannot travel unaccompanied, and Ms Krum has indicated, at least in the short term, the next year or so until [X] is old enough to travel unaccompanied, that a parent must travel with them. Accordingly there will be fares, the parties seem to agree, of about $1700 return per person, plus the 30 hour flight on each end.
The practical difficulties may well be met through each of the parties’ respective incomes and/or payments of child support. There is some potential for assistance to be provided to Ms Krum in funding travel for the children back to Australia if they are living with her. It is less clear whether that will be funded by her employer for the children to travel to see her if they are staying with their father in Australia. Although the contract annexed to Ms Krum’s affidavit certainly does indicate that there is the following available:
In special circumstances, if your dependent children are not able to accompany you on the international assignment and will remain in the home country to attend schooling, you may be eligible to a school allowance to assist with schooling costs.
And also that there is home leave allowance available, which would appear to comprise a net annual lump sum payment. The quantum of that is not clear. Mr Krum has been more circumspect with respect to his financial circumstances and suggested that twice a year is all that his income and his holiday entitlements would permit.
Subparagraph (f) deals with the capacity of parents to meet the children’s needs, including emotional and intellectual needs, and I find that there is no difference at all between the capacity of these parents to meet those needs.
Paragraph (g) deals with maturity, sex, lifestyle and background of the children, including their culture. These children are from an homogenous Anglo-Saxon culture. They will continue to enjoy that culture, no matter whether they are in Australia or Berlin. I certainly accept that there is a cultural benefit to the children of experiencing another culture, and one must set that against perhaps the disadvantages identified by Dr B or otherwise, but clearly, there is a benefit. However, I am satisfied the move is not necessarily motivated by procuring those benefits, but simple comes as an adjunct to it and that the benefits are, at best, experimental or hoped for whereas the maintenance of stability in arrangements must be weighed against this potential.
Subparagraph (h) deals with Aboriginality, which is not relevant.
Paragraph (i), the attitude to the child and responsibilities of parenthood demonstrated by each parent. Each of these parents is an excellent parent. There is nothing to differentiate between their attitudes. Mr Krum, through his counsel, urges me to be critical of Ms Krum, who, having such a steadfast adherence to her desire to take up the job opportunity, that that represents the opposite of what her evidence has been – that she values her career but would never prioritise it over her children. I don’t accept that that is anything that is consciously done by Ms Krum, although I accept that it is perhaps a valid perception on Mr Krum’s part.
Paragraph (j) deals with family violence, as does subparagraph (k), and neither are relevant to this case.
Paragraph (l) urges the Court to make an order that will most likely avoid future proceedings. These are final orders, and on a simplistic level, will conclude the proceedings. However, if the orders are unworkable or are unlikely to successfully meet these children’s needs, future proceedings would be encouraged. I will do my best to make the orders that I think are best in the almost impossible circumstances of differentiating between these parties proposals so as to meet that requirement.
Subparagraph 4 of s. 60CC requires the Court to consider the extent of which a parent has failed to participate or facilitate relationships or parenting responsibilities in the past. I am satisfied that both parents have, and will, continue to meet those responsibilities and at a level far greater than many parents in the community.
This is a case that is finely balanced. There is little, if anything, to differentiate between these parents as parents. I am satisfied that each is perfectly capable of caring for these children on a full time basis, and facilitating, encouraging, and making happen the children’s relationship with the other parent and a broad range of other people.
Ultimately, and in accordance with comment by Dr B, my greatest concern is somewhat ironically, in light of the criticism that not only this court but most other courts, particularly at a Federal level, face, of delay, that the matter has come on so quickly and so many things have happened, or are proposed to happen in these children’s lives in such a short space of time, that they have not yet had the opportunity to fully comprehend, let alone experience or adjust to. I am satisfied that the social capital that these children have in Australia will provide them with some support and some great assistance in being able to navigate the torturous circumstances they are about to find themselves in emotionally, when the reality occurs of attending at Sydney airport to see their mother board a plane for Germany and for them, potentially, to not see her again for some months.
On balance, and having regard to all of the above evidence, and all of the above literature to which I have referred, by reference to Dr B’s report and his emphasis upon maintaining the children’s social capital to assist them in adjustment and preserving that social capital as best I can will prioritise these children’s best interests, not only through the somewhat negative exercise of minimising risk and disruption, but by maximising the prospects for these children to continue their relationship with both parents as fulsomely as is going to be possible in the circumstances, I am satisfied that Mr Krum’s proposals for the children to live in his care in Australia should be favoured.
Further to the orders already made, an application for costs is made by the Independent Children’s Lawyer in accordance with their grant of aid and the terms and conditions thereof.
The Independent Children’s Lawyer is obliged to seek contribution towards costs in appropriate circumstances. The costs would appear be, as a ballpark figure and as expended by the Commission, a sum of approximately $6900, or $3450 each.
Section 117 applies to a costs application by the Independent Children’s Lawyer as though they were a party to the proceedings. Ss.1 provides that each party should bear their own costs.
Subsection 4 indicates that in proceedings in which an Independent Children’s Lawyer has been appointed, if a party to proceedings has received legal aid, or, if a court considers a party would suffer financial hardship in bearing a portion of the costs, the Court must not make an order.
Subsection 2 provides the Court can make an order in appropriate circumstances, and ss. (2A) sets out the matters that are relevant to such considerations. I don’t have any information regarding the financial circumstances of each of the parties beyond the fact that they own a property in South Melbourne which is to be sold shortly and from which they will realise some amount of money and that each has an income which is comfortable, although not excessive. No one is in receipt of legal aid.
The proceedings have been conducted in the most efficient and appropriate fashion that I have seen for some substantial time. The parties have confined their pleadings to relevant issues, they have confined the conduct of the case in a manner that has been protective of these parties’ ability to move forward and deal with each other in the future, and remarkably, everyone has filed their documents on time. Regrettably, I cannot say that in very many cases before this court.
The proceedings have not been necessitated by anyone’s failure to do anything. No party has been wholly successful or unsuccessful. There have, no doubt, been offers between the parties with respect to resolution, but I have not been informed of any and for the present purposes, don’t need to be.
I am satisfied that there would be financial hardship to these parties in the somewhat unusual circumstance, perhaps, that each of the parties has been privately funded. I don’t know what they have expended, but I can’t imagine that it is a small amount of money in having conducted this case and having prepared it in such a short timeframe.
Each of the parents is now going to have substantial costs of maintaining these children and in meeting flight responsibilities to facilitate the children’s relationship with each parent, and I can’t help but feel, notwithstanding the pain to the public purse, of having funded the representation of the children, that money of these parents would be better spent meeting those endeavours which are of direct benefit to these children.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 1 February 2011
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