Lahman and Cain
[2010] FMCAfam 44
•25 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAHMAN & CAIN | [2010] FMCAfam 44 |
| FAMILY LAW – Relocation – capacity to parent. |
| Family Law Act 1975, Part VII, ss.60CC, 65DAA Family Law (Shared Parental Responsibility) Act 2006 |
| Mazorski & Albright [2007] FamCA 520 AMS v AIF (1999) 92-852 A and A Relocation Approach (2000) FLC 93-035 U & U [2002] FLC 93-112 Bolitho & Cohen (2005) FLC 93-224 Taylor and Barker [2007] FamCA 1246 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MS LAHMAN |
| Respondent: | MR CAIN |
| File Number: | CSC 203 of 2009 |
| Judgment of: | Willis FM |
| Hearing date: | 24 November 2009 |
| Date of Last Submission: | 24 November 2009 |
| Delivered at: | Cairns |
| Delivered on: | 25 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fellows |
| Solicitors for the Applicant: | MacDonnell’s Law Cairns |
| Counsel for the Respondent: | Mr Betts |
| Solicitors for the Respondent: | O’Reilly Stevens Bovey Lawyers |
| Counsel for the ICL: | Mrs Benson |
| ICL: | Mr Wright - Murray Lyons Solicitors |
IT IS ORDERED THAT
The children, [X] born [in] 2001 and [Y] born [in] 2002, live with the mother.
Each of the parents have equal shared parental responsibility in relation to the children.
The mother is permitted to relocate the children from Cairns to [M] in New South Wales from the start of the next school Term (January 2010).
Until relocation, the children will live with the father fortnightly from after school Friday to before school on Wednesday.
Upon relocation, the children will live with the father:
(a)2010 and in alternate years:
i)Easter holidays;
ii)June/July holidays;
iii)September/October holidays; and
iv)Second half of Christmas Holidays.
(b)2011 and alternate years:
i)June/July holidays;
ii)September/October holidays; and
iii)First half of Christmas holidays.
(c)In the [M] district, Brisbane or Gold Coast: four (4) days over a weekend in school terms; or for other period, and in any other places as may be agreed from time to time.
Travel Expenses
(a)In the first year after relocation the mother is to pay for all the children’s travel expenses between [M] and Cairns for holidays.
(b)In the following years the mother will pay for two lots of the children’s travel between [M] and Cairns for holidays.
(c)The paying party is to make the children’s travel arrangements and provide the other party with an itinerary seven (7) days prior to travel.
In relation to the time spent between the father and children in the holiday periods, the father is to give one (1) month’s notice of his intention to have the children.
Telephone Communication:
(a)The Father will communicate with the children by telephone each Monday and Thursday. The mother is to initiate the calls at her expense.
(b)Father will communicate with the children by telephone at all other reasonable times and the father will initiate such calls.
The father and mother will have reasonable internet and postal communication with the children when they are living with the other parent.
The Independent Children’s Lawyer is discharged.
All outstanding applications are removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Lahman & Cain is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 203 of 2009
| MS LAHMAN |
Applicant
And
| MR CAIN |
Respondent
REASONS FOR JUDGMENT
The father in this matter is a [tradesman] and runs his own [trade] business in Cairns. He has worked long and hard in his business throughout the eight year de-facto relationship he had with the mother. The father works six days a week from Monday to Saturday generally working a half day on Saturday. He has early starts and says the work is up and down and has to be embraced when it is there. He says since the children were born he has had to miss out on many family occasions with his children, including most school holidays and being involved in their extracurricular activities, because of his work commitments. He says it was important that he provide for the financial security of the family.
He agrees that the children have wanted to spend more time with him for years and that he has had the message that [X] has really wanted to spend more time with him since [X] was very young.
Since separation in July 2009 the father has spent time with the children from Friday afternoon to Tuesday morning each fortnight. Their mediated agreement included him dropping the children back into the mother’s care early on school mornings on his way to work. That arrangement has continued for most of the time post separation. The father has made ad hoc arrangements to drop into the mother’s home to see the children when he has found himself with a little free time on his hands. On occasion has been annoyed at the mother for not taking his phone call in which he was trying to organise impromptu visit. The father says that the mother has made arrangements with the children during the relationship that did not include him. He is critical of the mother for not informing him of the specific details of the location of the Scouting father-son day that he was to attend with [X] saying that even though he had not ever attended any Scout events during the entire year, it was important to [X] that he attend and he had specifically asked the mother to phone him and tell him the time and whereabouts of the function.
He is opposed to the mother’s application to leave Cairns and relocate the children to [M] in NSW. When the mother first raised it with him, however, he said he did not want to stop her moving but was worried he would not be a part of their lives if they moved.
The father considers that the mother has been encouraging the children to leave Cairns and wrongly told the children that they would be seeing more of him than they would under the current four days a fortnight arrangement. He also says the mother promoted the benefits of living in [M] and in particular used charts showing the good things about each place which were heavily weighted in favour of [M].
The father says that he will see less of the children than he does now if they move. He does not accept that the children spending most of their holidays in Cairns as offered by the mother is sustainable in the long term given the cost of travel and the arrangements that have to be made.
In relation to taking up the mother’s family’s offer of free accommodation in [M] with the unlimited use of their caravan, the father says he would not feel comfortable with such an arrangement.
As to the children’s school holiday periods, wherever they live the father says he will need about a month’s notice in relation to school holidays so that he can work out if it is possible for him to have all or part of the school holidays away from work. He says that he has obligations to his contractors and his time is basically at their whim.
He says he believes that parents have to be available for their children and he knows this from his own childhood experiences. He says for this to happen the children should remain living in Cairns.
The mother wishes to relocate to [M] to be closer to her family. She also says she cannot afford to stay in Cairns. She says with the assistance of staying with her parents for a period she will have an opportunity to buy a house in [M], something that is beyond her in Cairns. The mother also says she will have a lot more support in [M] living close to her parents and she has a job lined up [in the Education Industry].
She says that all during their relationship the father has not made time for the children and has left all of the parenting and the parental decisions to her. The father has had involvement with the children only when work permitted. The mother says the father’s work and lack of involvement in family life was the cause of their relationship breakdown. The mother says most family holidays consisted of her and the children going off alone. The father stayed in Cairns to work. On a day to day basis, she says that the children were always asking to spend more time with their father. [X] used to plead with his father to pick him up from school but the father never did.
The mother says [X] has been having problems socially and behaviourally at school since 2006 and the father has chosen not be involved at all in dealing with this issue. The mother says that when the father acquiesced to her request to leave Cairns with the children, she asked the guidance officer who gave her some ideas on how to help the children make the transition to [M]. That is where she got the idea to put up the charts, which she took down when the Family Report was released. Significantly, the mother says that part of [X]’s difficulties have been that he has always wanted to spend more time with the father. She said that the father knew this was the position of both children for years but he never made himself more available. The mother holds no hope that the father will change his attitude towards spending time with the children. She points to his refusal to take up offers of extra time each fortnight after separation and after the release of the Family Report which made reference to the children’s wishes.
The mother says the father has told the children that they will only see him two or three times a year whereas her proposal is for the children to spend all of their holidays in Cairns including half of the Christmas holidays. She says this means that the children will spend more time with the father than they do now. To cater for the father’s work schedule the mother is willing to come to Cairns with the children each school holidays and if the father has to work she will look after them during the day and the children can see the father when he is free.
Background
The father and mother have been living in a de facto relationship between 2000 and separation in July 2008.
The father is aged 50 at the time of trial, and the mother is 16 years younger being aged 34. The father has a son [Z], now aged around 21, from a previous short term relationship. The father learned about the pregnancy after the relationship ended and has chosen not to contact or develop a relationship with [Z].
The mother lived in [M] NSW before travelling to Cairns for a working holiday where she met the father. The father at that stage had set up his own [trade] business and lived in a house he had built in Cairns.
[X] born [in] 2001 (aged eight) and [Y] born the following year [in] 2002 (aged seven) are the children of this relationship.
The parties have conducted their relationship on a fairly traditional basis with the father working in his own business throughout the relationship and the mother being the home maker and raising the children. The lines of demarcation between these roles are particularly strong. The father says that he looked after the business and finances of the family and the mother did the child raising. The father agrees there is little cross over between the roles.
Once the children were school age, the mother obtained [omitted] qualifications and worked at the same school that the children attended, rather than [in the Hospitality Industry] which was her pre-children occupation. The father generally worked six days a week, 7am to 5pm Monday to Friday and 7am to 1pm on Saturday.
During their family life together, the father admits that there were many holidays and occasions that he was unable to spend with the wife and children due to his work commitments. The father says that he has had to focus most of his time and energy into the business as it is the business that provides the financial security for the family. He concedes that his work made heavy demands on his family life when the parties were together.
The mother’s parents who live in [M] travelled to Cairns frequently for holidays during the years the parties were together and the mother and children, and sometimes the father, holidayed in [M].
In July 2008 the parties separated under the one roof and in September 2008 the mother and children left the home and took up their own modest accommodation.
In November 2008 the parties attended mediation and entered into a parenting plan to be reviewed in six months. The plan provided for the father to spend three days a fortnight with the children, however, it was altered to four days a fortnight shortly after. The agreement provides that the children are collected by the father from the mother’s house at 4.30 PM on Friday afternoon and the father returns the children to the mother on Monday morning at 8:00 AM.
In February 2009 the mother told the father she would like to relocate to [M] in NSW, where she grew up and where her parents still live. She would like to be closer to her family and says it would be more affordable to live there than Cairns. She also said that in [M] she has a chance of buying a property for herself and the children. While initially saying he did not want to stop the mother going, although not happy about his perceived exclusion from the children’s lives, by March 2009 he had decided to oppose the move. He says it is not practicable for him to move to [M] as he has his business and house in Cairns.
It is a feature of this family dynamic that the father’s work commitments have meant that he has been unavailable to spend time as much time with the children as they would have wished, both during the de facto marriage and after.
The mother commenced proceedings on 1 April 2009.
Competing proposals
The mother seeks to relocate the children to [M] and that the children spend primarily holiday time with the father including Easter holidays in each second year, all of the other school holidays during the year and one half of the Christmas holidays. The mother also proposes four days over a week-end in school terms or other period in the [M] district, Brisbane or Gold Coast and other times as agreed.
If the mother is not successful in her application to relocate the children she proposes that the children live with her in Cairns at all times except when they live with the father for five nights a fortnight being taken in one block period from after school Friday to before school Wednesday and one half of the school holidays, upon one month notice.
The father proposes that the children live with the mother in Cairns and live five days a fortnight with him to be taken as four consecutive nights each alternate week and Wednesday night in the off week. The father proposes one half of all of the school holidays and four weeks at Christmas the children with a notice provision as required by the father.
In the event the mother is permitted to relocate the children and they live in [M] the father proposes spending time with the children for one half of each of the term school holidays and four weeks at Christmas, again with the notice provision.
The father does not present a proposal to the Court that involves him moving to [M] and his case was conducted on the basis that he does not intend moving to [M].
There is no application before me for the children to spend equal time with each parent.
The parents are largely agreed with the children’s living arrangements in the event that the mother is not permitted to relocate and remains living in Cairns, save that the mother proposes the children spend their five days a fortnight with the father in one block period while the father seeks those five days broken into a four day block each alternate week and one day in the off week.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975. In making parenting orders the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated
“The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B (1) which sets out the objects of the legislation relating to children and are re-iterated as the primary considerations in s.60CC (1)”.
When I determine the best interests of [X] and [Y] I must consider the primary and additional considerations set out in s.60CC, noting that if the presumption for equal shared parental responsibility applies, I must have reference to s.65DAA(5) which canvasses issues of reasonable practicality.
The parents in this matter agree that they should have equal parental responsibility for the children. Once an Order for equal shared parental responsibility is made, the legislative pathway requires that I consider the children spending equal time with each parent and if equal time is not in their best interests then I must consider significant and substantial time.
The case involves relocation of children and I am guided in my approach in determining which orders are in the best interest of [X] and [Y] by a long line of authorities. These include: the High Court decision in AMS v AIF (1999) 92-852 where Justice Kirby set out the general principles to be followed; A and A Relocation Approach (2000) FLC 93-035; U & U [2002] FLC 93-112, another High Court decision; Bolitho & Cohen (2005) FLC 93-224 and more recently the Full Court decision in Taylor and Barker [2007] FamCA 1246, a decision handed down after the substantial amendments were enacted to the Family Law Act under the Family Law (Shared Parental Responsibility) Act 2006 and McCall & Clark [2009] FamCAFC 92.
Cases involving relocation are notoriously difficult cases and in which, sadly, one parent will inevitably be disappointed with the outcome.
Witnesses – The mother.
I observed the mother for some time in the witness box. I consider that she was extremely child focused and that she was well in touch with each of the children. The mother appears to be a most sensible and practical person. My impression of the mother was that she is an outgoing, happy, resourceful and confident woman in her early 30’s and she clearly loves her mothering role. She has parented these two children to the best of her ability and almost without any help from the father and, equally, without any real involvement from the father. She has chosen, and undertaken training in, an occupation that fits in with the children’s school hours. The mother appears to me to be a most loving and thoughtful mother and one whom I have no doubt will put the children’s interests over her own.
On the issue of the charts or posters criticised by the father, I accept that the whole idea of the posters originated from the mother’s own concern that she should assist the children in making the transition in moving from Cairns to [M] and for no other purpose. From watching and listening to the mother being cross examined by Mr Betts of Counsel for the father, I had the impression that once the father objected to the relocation, the mother knew that the posters should come down and that she knew she was slow to do this. I consider that the posters were a good idea to start with but they represented a somewhat distorted view of the Cairns/[M] situation, favouring [M]. I also consider that the mother had a tendency to minimise the extent to which she may have encouraged the children to think that life would be much better in [M].
I consider that overall the mother has been doing everything possible to ensure that her children’s needs have been met, emotionally, physically, socially and financially.
Witness – Ms L
Ms L is the maternal grandmother of the children. She travelled from [M] to Cairns to give evidence at this trial. Ms L impressed me as being a competent, capable and kind woman who had a very close involvement with both her grandchildren and was very attuned to their personalities and behaviour. Her relationship with the mother is also extremely close and supportive.
She gave evidence that when the children were young the father was very involved with his work and did not spend much time with the children. She said that it was a fair summary to say that the mother made the childrearing decisions and that the father was happy to go along with them.
Ms L had undertaken a course to assist her deal with and understand what she perceived to be [Y]’s current difficult behaviour which she described as defiant rather than naughty. She said [Y] was becoming defiant and would only do things when she wanted to and was slow to comply with requests. It was her understanding that the children said there were no rules at their father’s and that this difference in parenting style could be part of the underlying cause of [Y]’s behaviour as she is getting away with things at her father’s that are not tolerated at her mother’s home. She said, however, that if the father wanted to parent in a particular fashion in his home, that was his business.
I found her evidence helpful and I accept her observations of the children as being most apt.
It is clear that she and her husband have provided much emotional support for their daughter and grandchildren for many years.
Evidence – Mr L
Mr L is the maternal grandfather of the children. He appeared in person also having travelled to Cairns for the trial. He has clearly enjoyed many happy hours engaged in a range of activities with his grandchildren [X] and [Y]. He has been involved in the care of the children since they were tiny, taking them for walks and babysitting and taking them to preschool and school when he was in Cairns, which was regularly. He has taken an interest in their schooling and sport, he has taught the children to swim and surf, taken them fishing and collecting bait and exploring rock pools. He has taken the children on day trips in both Cairns and [M], and has helped [X] with his Cub activities, doing woodwork and supervising him using tools correctly. He says [X] has a short attention span and can be vague and easily distracted from the task at hand. Mr L described [X] as very bright, confident and headstrong pushing things to the limit, but is loving and enjoys one on one time.
During one period in Mr L’s working life he was the owner of a [trade] business and Mr L says he continues to talk with the father easily on a range of subjects and has always maintained an interest in the father’s work. Mr L observed over the years that the father never seemed to want to join in family activities. I accepted that the offer of his caravan for the father and children to use if the father should travel to [M] was entirely genuine.
I did not detect any animosity from Mr L toward the father. He gave his evidence openly and honestly and impressed me as being a loving grandfather who has much to offer his grandchildren.
Witness – the father
The father was a man of few words and appeared slightly impatient rather than nervous with the whole process of questioning under cross examination.
The father impressed me as a being very involved and devoted to his [trade] business. He held very definite views about the importance of his work in terms of earning money when opportunities presented themselves, as he had been doing on a contract he has had in place for the past 3 years. He seemed very committed to his obligations to his contractors and was unwavering in his explanation and belief that there are times when the importance of [trade omitted] must rise above all else. He appeared to me to be totally beholden to the demands of his work and the requests of the contractors who use his company.
My sense about his evidence generally was there was some sort of disconnect between the witness and his affidavit material. He was clearly a man of few words responding to most questions in a fairly clinical style using single words like “yes”, ‘”no”, “correct” or “incorrect” and rarely expanding beyond that. In his affidavit, however, he seemed quite verbose. At times he seemed to have little knowledge of what was in his affidavit and often his answers were entirely inconsistent with his affidavit evidence. When this was pointed out to him he would revert to the position in the affidavit without any explanation.
The father gave his answers in a decisive fashion, but he often quickly changed his position on issues to the complete opposite. This occurred even in relation to when it was that he last used his Harley Davidson motorcycle.
The father said in his affidavit at paragraph 19[1]:
With respect to me “riding my Harley” I say that the Harley spent most of the last three years in the shed. The last registration label has not even been placed on it”
[1] Affidavit of 4 /11/09
The cross examination by Mr Fellows of Counsel for the mother proceeded as follows:
Q. You seem to be suggesting that you don’t ride your Harley because the registration label hasn’t been placed on it?
A. It has not been out of the shed for years.
Q. Wasn’t it out of the shed last week end?
A. It was, that’s correct.
The father then said that at the time he swore his affidavit the statement was correct. He then said that this year, since he has had more time he has been riding it. He also agreed that, just by co-incidence, he had driven past the mother and mother-in-law on the previous week-end, suggesting that he knew the mother had seen him.
Given the issue of the father’s non-involvement with the children and his position that it was work that prevented him doing so, the father’s untruthful answer in relation to riding his motorcycle take on greater relevance. There were other occasions when the father gave an answer in cross examination that was inconsistent with his affidavit evidence and times when he tried to have the court believe that his non-involvement with the children was in some way the mother’s fault in not including him. I formed the view that the father’s lack of involvement with his children was by choice, not by any exclusion on the mother’s part.
The father failed to make concessions when he ought to have. The father refused to admit that his own solicitor’s letter to the mother regarding property matters, which included in it an intention for him to seek primary residence of the children, meant what is said. The father does not seek primary residence of the children. Nevertheless, he would not concede that his solicitor’s letter did indicate an intention to make such a claim. I had the impression the father did not wish to admit that the suggestion that he would seek to become the primary resident parent was added for strategic purposes.
I had a strong impression that the father had a life that was detached from the rest of the family and that he showed far more interest in his work, than in the lives and wellbeing of his children. He has been a parent in name but has chosen to do very little parenting. This has been his choice since the children were born. I saw nothing in the father’s material or in any answer given under cross examination that suggested the father had any serious regrets about his lack of involvement in the children’s lives. He was very matter of fact and unmoved about the issue and maintained without qualification that his work commitments justified his conduct.
I consider that the father has much to learn about children and parenting and that he had little insight into his children’s emotional needs and the consequences of his own conduct upon the lives of his children. I also had no doubt that the father loves his children deeply.
I found that overall the father was not a witness whose testimony I could rely on. Where ever his evidence contracts those of other witnesses, I prefer the evidence of the other witnesses.
Evidence – The Family Report writer
Miss Woodcock gave evidence in person and was cross examined. I found her evidence most helpful. The decided cases tell me, though, that there is no magic in a Family Report, it is just another piece of evidence[2].
[2] Hall and Hall (1979) FLC 90-713
Overall Miss Woodcock’s view as to the relocation is that long distance relationships are difficult to maintain, that the travelling and expense adds to difficulty and that spending time on the computer and telephone probably would not address the desire of the children to spend more time with their father[3]. Miss Woodcock, however, accepted that, if the children also spent the majority of each school holiday period with their father and had the opportunity to engage in those physical activities they obviously enjoyed with him, it would go a long way in assisting the children to address their need to see more of him[4]. Miss Woodcock considered the sole advantage to the mother’s proposal was that the children would spend more time with their maternal grandparents.
[3] Transcript 20/11/09 page 166 line 40.
[4] Transcript 20/11/09 – page 167 – LINE 5.
Miss Woodcock considered that the father had an addiction to his work and needed to undergo professional counselling so his addiction could be to his children and not his work.
I have discussed her evidence in more detail elsewhere in these reasons. I have taken her evidence into account in determining the best interests of these children.
Evidence – school guidance officer Ms H
Ms H, the guidance officer, has formal qualifications of a Diploma of Teaching (Primary), a Bachelor of Education and a Masters Degrees in the disciplines of Guidance and Counselling and Learning Support.
Ms H attended the trial in person being called by the Independent Children’s Lawyer. She gave evidence, brought her notes and was cross examined by all Counsel. Her involvement with [X] goes back to 2006 when [X] was in pre-school. Since that time, except for 2008 when she was away, Ms H has been seeing [X] professionally using narrative therapy. In this time she appears to have developed a deep understanding of [X]’s personality and vulnerabilities and she has unearthed details of many of [X]’s hopes, aspirations and disappointments.
Ms H has spent considerable time with [X] and I found her evidence most helpful and her observations most insightful. Ms H has been engaging in narrative therapy with [X] and Ms Woodcock agrees this style of counselling is appropriate though expressed some reservations of it occurring at the school where the mother works.
I found no evidence that I should regard Ms H testimony as anything other than objective. Ms H may work on the same campus as the mother who is a [occupation omitted] at the [workplace omitted] attached to [X]’s primary school, however, Ms H said that professionally, she has obligations of confidentiality. Ms H is not a friend of the mother and she says that having the mother work at the [omitted] has not affected her work with [X]. Ms H said that [X]’s sessions with her were a place where [X] could come and talk without his mum knowing about it. I accept that this so.
Ms H gave her evidence in an entirely professional manner, she is well qualified, she has recorded notes contemporaneously, and I have no reason to doubt that her views are based on her professional opinions. The notes in 2008 are not Ms H’s notes, another school guidance officer was involved in 2008. A reading of the whole file shows that there are many professionals involved in helping [X], from social workers to the deputy principal and Ms H is but one. They include the teaching staff, school guidance officer, an occupational therapist, an audiologist, a psychologist and others.
I refer elsewhere in these reasons more particularly to the evidence of Ms H.
Evaluating the competing proposals
I now turn to discuss factors which are relevant to the competing applications set out in s.60CC and I will then have reference to the primary considerations.
Section 60CC factors
Children’s views – characteristics of the children [X] and [Y].
The mother has given evidence that the children have told her that they would like to move to [M][5] and that they have been to [M] on many occasions for holidays and have spoken of some of the things they are looking forward to.
[5] Transcript 19/11/09 page 72, line 5.
The father says that the children have said they want to see more of him.
The evidence of the independent professionals, the Family Report writer Miss Woodcock and the school guidance officer Ms H have each been helpful in this matter. Their evidence occupied considerable time at the trial and delays were incurred in the efforts of the Court to ensure that each of Miss Woodcock and Ms H had each other’s reports and records and were in a position to have the evidence of the other, and to comment upon it.
[X] and [Y] have each been interviewed by Miss Woodcock who considers that there is a high possibility of both children being of extremely high intelligence. She describes [X] as a healthy boy then aged seven (now eight) who wears glasses and enjoys using sarcasm and jokes at other people’s expense. [X] appeared to use language more like a child aged 11 or 12. [X] has found school difficult since he started preschool in 2006.
The report writer who had access to the educational material subpoenaed reported that both parents seemed aware that [X] was “different” from other children and that [Y] was “very bright” but no formalised assessment had been carried out.
After her interview with [X], and based on her own observations and interactions with [X], Miss Woodcock said that [X] likely presented as Oppositional Defiant in that he exhibited a pattern of negativistic, hostile and defiant behaviour. This means [X] argues with adults, refuses to comply with rules or requests and often deliberately annoys people. Miss Woodcock says that many children, especially boys who have a higher than average IQ, tend to become oppositional defiant. It is clear from hearing Miss Woodcock’s account of her time spent with [X] that he put Miss Woodcock to the test.
[X]’s interview with Miss Woodcock saw [X] telling the report writer things that she considered were designed to shock her for instance that he was in year nine, when he is in fact in year three. He also told her that his father would let him play with fire and petrol and do bad things to his class mates.
It is in this context that the interview progressed, with [X] constantly moving at the table and glancing around the room. Reference to this hyperactivity was noted in his school reports and during observations at the father’s home. It fits with the reports of the mother who described [X] as constantly active and requiring lots of running around.
[X] said he enjoyed being with his father and when asked what he liked about his being with his father, [X] replied that he got to play with guns and use the internet. [X] is allowed to play with toy guns at his father’s place and not his mother’s place. [X] told Miss Woodcock that he would like to spend more time with his father. Overall Miss Woodcock considered that [X]’s self portrait suggested he had low self esteem and was lacking in self confidence.
[Y] was also interviewed and reported as being a physically slight and healthy six year old girl who speaks and thinks more like a child who is nine or 10 years of age. [Y]‘s self portrait indicated she has a healthy self-esteem. [Y] knew that the interview was about the move to [M] and she expressed the view: it’s making me nervous cause we won’t see dad much. When asked what she would like if given the choice, she said I would definitely like to spend more time with Dad if I could. [Y] said she had told her mother this heaps of times and that mum said wait till the court decides.
When asked by Ms. Benson of Counsel for the ICL how she interpreted the comments by the children that they wished to spend more time with their father, in light of the issue that Miss Woodcock was assessing, namely going to [M], Miss Woodcock said that the children could have fears that they would not see their dad much once they moved.
Miss Woodcock considered that the children enjoyed their relationship with the father, and having the opportunity to have a home interview, as opposed to the mother who was interviewed with the children in the registry counselling room, she observed the children playing football with the father in the back yard at home. She concluded that they enjoyed the physicality of that relationship in playing football and running up and hugging him, tackling him and literally hanging off him.
Miss Woodcock considered that there was merit in [X] in particular staying in Cairns, although she believed that [X] was disappointed with his relationship with his father. When asked by Mr Fellows of Counsel why should the mother have to stay in Cairns when there was a constant message from [X] to the father that he would like to spend more time with his father, but the father had never acted on this, Miss Woodcock replied that she would not want to take that hope away from [X] that it could happen.[6] When asked how long the mother had to wait to see if the father will change his attitude, Miss Woodcock said she could not really put a time on it, could be up to two or three years, and after being pressed said she would like to think it might take a year for the father’s motivation to change.
[6] Transcript 24/11/09 page 213, line 15.
Miss Woodcock has the opinion that the father has almost an addiction to his work. The father’s siblings have addiction problems and she views the father as needing counselling to deal with his addiction to wean him off his work. She says he needs to make his children his addiction, not his work.
Miss Woodcock also acknowledged that unless the father changes his attitude to his children, whether they stay in Cairns or go to [M], their hopes will be dashed if he continues to give them disappointment in not being as available as the children wished.
In relation to [X], she said that further disappointment will be damaging for [X]’s self esteem and that broken promises were the worst thing to undermine a relationship. She agreed, though, that if [X] did move to [M] and the father quarantined four times a year and those times were planned before hand and sacrosanct and the father made it known that he would be enjoying those time with [X], such an arrangement would be less damaging than staying in Cairns and having disappointment with the father not seeing the children as much as they would want, on regular basis.
Miss Woodcock concluded that it was going to be very painful either way for his children, unless the father rises to the occasion and changes his attitude to work from that shown over the past eight years.
Ms H – wishes of [X] – nature of relationship with his father.
In considering the wishes of the children, I have heard evidence from Ms H the school guidance officer that touches upon both the wishes of [X] and the nature of his relationship with his father. I have not separated out those two issues as to do so may detract from the totality of the evidence.
Ms H advised that in 2006 [X] was referred for assessment to an occupational therapist given the concerns about [X]’s concentration and his fine motor skills, difficulty remembering and following daily routines. A home program was recommended.
In 2007 he underwent speech-language assessment and a hearing assessment, given his teacher’s observations about his inability to communicate and interact appropriately with teachers and peers. Ultimately there were found to be no issues with his hearing or speech. The records show a myriad of social circumstances at school where [X] behaves inappropriately with other students. He has difficulty reading expressions of others such as anger or sadness and shows very little if any emotion himself.
In 2008 when [X] was in year two the school records show a Team meeting in relation to [X] for the purpose of better understanding the possible reasons for [X]’s difficult behaviour at school and in order to provide more appropriate support with the goal of achieving better outcomes for [X] at school.
The team consisted of a parent (the mother), class teacher, acting deputy principal, guidance officer (not Ms H she was away in 2008), behaviour support teacher, and social worker. The information gathered regarding [X] was comprehensive and included data from all the participants and most aspects of [X]’s life. The list of identified problems includes aspects of his home and school life, sporting limitations , difficulties understanding various emotions when interacting with friends and negative attitudes from other parents and students towards him.
Some of the concerns listed included: not being able to gain appropriate peer social skills; the strategies used to manage his inappropriate behaviours have not yet led to significant changes; [X] rarely cries, even when genuinely sad (eg when cat died) - [X] only cries out of frustration; [X] has had no significant adult male role model/involvement in his life; his father [Mr Cain] has had minimum involvement; [X] has strongly craved his father’s attention for many years; [X] is always chosen last in groups; the difficulty of [X] being shown a negative attitude by other parents continues but has been minimised by [X] coming to school later.
[X] was also referred to a psychologist by the school in 2008, and the school prepared a report to provide background. The Team meeting concluded with another meeting date being set and with actions to be taken by various persons in the team. The mother’s responsibility was to organise home incentives for school choices - for example, the opportunity to go karate in 2009 is to be earned. The mother was to create and build friendships at home for [X] and [X] was to continue with the psychologist.
The guidance counselling records (“the records”) tendered are a chronicle of the complex feelings and thoughts [X] has experienced. On 15 February 2008 the counsellor (MS C) recorded that the mother was asked for more information and that dad is to be involved in the positives if possible.
The records on 29 July 2008 and elsewhere show [X] saying that his dad gets angry with him and he has difficulty expressing how this made him feel. Elsewhere there are references to his dad being mean to him.
Included in the guidance officers’ records is a “wish test” completed by [X] on 10 September 2008 and his child like handwriting can be seen on that document expressing his wishes on various topics. Down from the entry that reads I wish my teacher was not crazy, is a touching entry that reads I wish my father liked me more than my sister. The theme of [X] feeling that his sister is the favoured child is a theme that emerges in [X]’s counselling. In an entry on 18 August 2008 the records note a session in which [X] was upset after an altercation at lunch: he spoke with the counsellor about home and how it was not fair that dad spent more time, about 30 minutes, with his sister and not him.
The records in 2009 have a similar theme. In 2009[7] the records show the things that frustrate [X] the most include going to dad’s and when asked to clarify what it is about going to dad’s, [X] replies dad is mean to me and grumpy. [X] self reported being sad, very sad. [X] goes on to say that that his sadness started a long time ago, that his anger shows itself as sadness, that the physical effect of that is that he cries when he gets angry or lashes out when he gets angry[8]. Ms H explained that [X] uses language that befits an older child as seen when [X] told the guidance officer that underneath his anger is ignorance and underneath that is shame. [X] said when referring to “shame” coming into it, that’s pretty much what makes me sad.
[7] Green tag.
[8] Transcript 20/11/09 page 145, line 5.
Ms H added that [X] said he feels shame about the way he is feeling about himself - he is feeling ashamed. He feels ashamed because he is being disrespected and that people are not listening to him.[9]
[9] Transcript 20/11/09 page 150, line 30.
On 19 August 2009 the records show that [X] was feeling very angry as his father had employed a nanny who he does not like because she is mean to him. [X] said his father is not spending much time with him and that he says he will spend time with him but leaves him with the nanny.
After [X] told the guidance officer about his sadness at his father not seeing him, [X] asked the guidance officer to contact his father and tell him that [X] wanted to spend more time with him. The guidance officer dutifully contacted the father and for the first time the father went and saw Ms H on 26 August 2009[10].
[10] Exhibit ICL 1.
From the report of Ms H it seems as though the father used this occasion to discuss this litigation, the move to [M] and he felt confident that the court psychologist was on his side and that the children will not be allowed to go south and live. He said he himself had grown up with grandparents as his carers for part of his life and he did not think it was a good idea for his children not to see their dad. Ms H explained to the father that she was seeing him because [X] has asked her to and that [X] would like to have more quantity and more quality of time with his dad, which was paraphrasing her conversation with [X][11].
[11] Transcript 20/11/09 page 148, line 40.
The evidence given at trial was that the father did not take up any extra time with [X] after this meeting. He could have had five days a week at this stage as offered by the mother but chose not to. In the September school holidays following this discussion the father did not spend any holiday time with the children. This is what occurred for all the other holidays in 2009, save for Christmas 2008/2009, when the father spent five days holidays with the children.
As late as 16 November 2009 there is an entry that [X] heard his father say to his sister how’s my best girl. The guidance officer said that her impression was that [X] immediately took that to mean he was not dad’s best person. In that session [X] reported that he wanted to move south and that he knows the house and the mulberry bushes at [M]. [X] said if he has to stay in Cairns he would be sad. [X] then said about a year ago dad started hating me. Miss Woodcock considers this statement is more about his rejection by his father than [X] actually thinking his father hates him. In another entry [X] records that adults are not listening – dad. Mum is listening but she can’t make a difference.
In terms of the hope that [X] holds for having a more fulfilling relationship with his father, Ms H considers that [X] does not feel very hopeful that anything will change in relationship with his dad[12]. I accept this evidence. Ms H has been interacting with [X] at a very intimate level over some years and in my view is well qualified to come to this conclusion.
[12] Transcript 24/22/09, page 201, line 15.
Discussion - views
In determining the views of the children I have had regard to their ages and maturity and all of the evidence both of the parties and the experts.
I note the submission of the ICL Counsel Miss Benson that there is no explanation as to why the children didn’t specifically tell the report writer that they wanted to move to [M] or not. Miss Woodcock’s evidence is that she did not specifically ask the children their views about going to [M].
Miss Woodcock speculated that the children, in expressing a wish to see more of their father in the context of the proposed move to [M], may mean that they are saying they are worried they will not see as much of their father. This would not be surprising, in my view, given that even when the children live in the same town as the father he does not spend holidays with them, has not taken up extra time offered or any time other than his set days and has no history of being meaningfully involved or interested in participating in their pursuits.
In my view it is significant that it is not only in the context of the move to [M] that the children have been asking for more time with the father. It was not after separation or after the mother has proposed moving to [M] that the children started to ask for more time with the father. The evidence is that this desire has been a feature of the children’s relationship with the father since they were little. The mother has given evidence in this regard and the father himself accepts that this is so.
This is particularly so in relation to [X]. [X] has articulated to Ms H that he would like to move to [M] and he will be sad if he does not get to move. The lack of engagement by his father has been identified by [X] as a matter that has caused him significant and ongoing sadness and even shame. It has caused him to lose his self respect. That tragic situation has been created, in [X]’s view, through the father’s unwillingness to spend time with him and his broken promises to spend more time with him. Miss Woodcock commented quite insightfully that broken promises are perhaps the worst thing to undermine a relationship[13].
[13] Transcript 24/22/09 page 215, line 25.
Having regard to all of the evidence about the children’s wishes, I accept the evidence of the mother that the children are quite excited at the prospect of moving to [M]. I accept that [X] has expressed to the guidance officer a clear wish to move to [M] and has gone further and said that if he doesn’t get to go to [M] he will be sad. This position is in line with Ms H’ view that [X] holds no hope that his relationship with his father will improve. I accept also that the children expressed a wish to spend more time with their father.
The weight I give to these wishes is of course tempered by the ages of the children and the evidence as to their levels of maturity.
Nature of relationships with significant persons
In addition to what I have already noted elsewhere in these reasons about the children’s relationship with their parents, I consider that each of the children love their parents.
The children appear to have quite a different relationship with each of their father and mother. Their mother has been their primary carer in every sense of the word, and they each have a strong attachment to her.
The mother was observed as being very relaxed with the children, responding appropriately to her directives, they playfully challenged her and she playfully responded. The mother was observed to use personalised strategies in dealing with each child.
Miss Woodcock observed that there seemed no favouritism of one or other of the children on the mother’s part (and nor did she observe any favouritism being shown by the father). Both children sat close or cuddled with their mother, and it was obvious through their gazes, smiles and interactions that there was much love between the children and their mother.
Her capacity to parent is not challenged by the father, nor could it be as he has on his own evidence been happy to leave the parenting and decision making to the mother and she has made good decisions.
I relation to the nature of the relationship between the father and the children, there is evidence that at times it is fun, as seen in the observations of Miss Woodcock, though not without its difficulties, with each of the children being oppositional. [X] is noted in the guidance officer records as describing his father as mean on several occasions. There is evidence that the children perceive there are no rules in his house. It seems that his lack of parental authority is resulting in the children exerting too much authority in his household.
Miss Woodcock considers the father’s parenting skills need refinement and he needs to develop a wide range of strategies in his parenting. In her presence the father had difficulty asserting authority over the children and [X] appeared to be quite oppositional with his father, ignoring his requests.
[X] became interested when they played outside. When playing ball with their father, the father allowed the children to play rough and tumble with him, easily assisting the children so they would not hurt themselves. Miss Woodcock observed much laughter and smiles during this play and noted the children giving their father affectionate hugs and concluded that the children seem to love the physicality of their relationship with the father.
The children have spent much time in interesting and developmental activities with their maternal grandparents. They have travelled to Cairns about 17 times since 2001. They have not just been involved in holidays, rather, they have each had the opportunity to know and be interested in the children’s schooling and extracurricular activities. There appear to me to be many activities that that each of the children have been engaged in with the grandparents that have enhanced the children’s lives.
Parenting capacity, attitude to the children and extent to which parenting responsibilities discharged
The mother has fulfilled her responsibilities of parenting. She has made long terms decisions for the children, sounded them out with the father, and he has been happy to go along with all of her decisions.
The father has not made long term decisions for the children, he has agreed to them.
The father was happy to leave decisions about the day to day care welfare and development of the children to the mother.
I formed the view that the father undoubtedly loved his children but that he wanted the children to always be available for him on his terms.
There was little evidence I could rely on to conclude that the father was genuinely committed to allocating time with his children. The history of his lack of involvement in his family’s life is fairly telling in this regard.
After separation he filed a response seeking five days a fortnight, but when offered the time did not take it up. He had his lawyers write and challenge the mother’s position of being primary carer. He did not ever bring an application suggesting that the children live with him for most of the time.
The father likes to have an arrangement where he can drop by at the mother’s house for short visits, on an impromptu basis. He has been too busy doing running around when the mother has phoned to seek his assistance with care of the children. He does not phone the children. Most of the children’s school holidays are spent without him. He has not spent school holidays with the children since separation, except for five days in Christmas 2008 and the history of him being actively involved with the children’s lives paints a sad picture from the children’s perspective.
It seems to me that he takes no responsibility for his inability to spend time with the children or for their disappointment. I considered that the father was entirely unaware that his rhetoric regarding what children need was entirely at odds with his conduct as seen in his statement to the report writer when asked about what he believed children needed. The father said they need parents who are accessible. They need to know that if they want you, you are there, not somewhere far away, like I was with my dad[14].
[14] Family Report, paragraph 51.
Even after separation when he no longer has the opportunity of see them every day and when he well and truly knew how [X] was feeling, he did not take up the offer of an extra day a fortnight as the father said he now wants and he failed to take up holiday time with his children during 2009 at all, and particularly in September 2009 after he had seen the guidance officer. This failure is in line with his poor attendance on Family holidays in the past.
The father’s parenting techniques were described by Miss Woodcock as reasonable. At interview, Miss Woodcock observed that the father had difficulty with the children’s behaviour.
I have dealt elsewhere with the complexities of [X]’s relationship with his father. [Y] being more confident and having good self esteem does not appear to have suffered as deeply as [X].
As between [X] and [Y], from [X]’s perspective he has made it clear in drawings and counselling and to Miss Woodcock, that he doesn’t like his sister. He perceives that father spends more time with [Y] and was affected by the father’s comment who’s my best girl.
I am satisfied that, as noted by Miss Woodcock, the father’s parenting skills are wanting and that he is much in need of assistance at both a practical level and in understanding the wants and needs both physically and emotionally of the children.
In relation to the division of roles between the father and mother when the parties lived together, it was clear to me that the division went far beyond dividing up the primary roles each would take on during working hours. The division was deep. This was not a couple who operated like a partnership in parenting their children. This was a family where the father lived his life primarily to work and left the mother and children to live their lives.
The father believes that he worked and provided the financial support and that if I hadn’t paid attention to my work, [Ms Lahman] and the kids wouldn’t have been able to have the things they had - they didn’t suffer. The father seems unaware that it is his work that has lead to the breakdown of his de facto marriage and to his children yearning for his attentions.
The evidence is that he has disappointed his children, and particularly [X], for years by failing to agree to their requests to spend time with them, and that he knew this was happening. He has shown no understanding at all of their longing for him to spend time with them.
After hearing the evidence of [X]’s struggle, difficulties and sadness as [X] expressed to the guidance officer over several years, it is illuminating to read the father’s perspective of his visit to the guidance officer, Ms H, as expressed in the father’s affidavit.
Paragraph 75 reads in part
I spent about an hour discussing [X]’s issues with [Ms H] and we brainstormed on how to sort them out. [Ms H] was very helpful and was keen to know my side of the family situation. I believed that this assisted in issues concerning [X] and [X] did become more settled after our discussion. [X]’s main issue was he was not getting enough time with me. This also was about the time that I was not calling in at the home for a period of ten days because the situation between [Ms Lahman] and I was very tense and I did not want to see the children witness any arguments between [Ms Lahman] and I.
It seems from this explanation that the father considers that his one hour visit to the guidance officer helped [X] to become much more settled. There is no evidence to support such a proposition. In fact the evidence of the guidance officer in subsequent sessions shows [X] continuing to be angry and disappointed with his father[15].
[15] Exhibit ICL 1, entry 18/10/09
As for the father’s view that [X]’s difficulties arose because the father did not call in on impromptu basis at the mother’s house for a period of ten days around this time, is in my view most illustrative of the father’s superficial understanding of the depth of the problems suffered by [X]. It fails also to show any insight into the consequences of his behaviour and its effect on [X].
When being questioned about the difficulties with [X], he expressed no regret or remorse about not going to the school guidance officer in 2008, as he agreed to do in the mediated written agreement. He accepted without hesitation that he knew that the children and [X] in particular had wanted to see more of him for years, and that had continued after separation.
There is no indication that he even now understands what is required of him by the children or the depth of the emotional problems and subsequent behaviour problems with [X]. I had a strong impression that the father had a very limited insight into the children’s needs in terms of parenting or that he would understand and be able to deal with the consequences of his approach.
There are signs that he indulges the children in acquiescing to their requests and leaving the children with the impression he has no house rules. The mother reports that the children have told her it is funny that the father does one thing but then lets them do the opposite. [Y] who is showing signs of defiant behaviour according to her mother and the maternal grandmother, and who is in line to see a guidance officer in this regard, is now using the different parenting styles as a wedge to manipulate the mother. [Y] has told her mother in regard to a variety of everyday issues, such as eating dinner, that she doesn’t have to do it at Dads.
Facilitation of the relationship with other parent
In this matter, the father has properly acknowledged the mother’s significant parenting role in relation to both children: He has been content to leave the parenting to her as, in his mind, this was all part of the division of duties between the parents.
The father is not challenging that role, and whilst he has not supported the mother in her parenting, he has been happy to go along with her decisions. The father has during this litigation, but not in practice, attempted at times to portray his lack of involvement as being somehow due to the mother not including him.
I consider that there is nothing in the evidence to suggest that the mother has in any way excluded the father from having a relationship with the children. Further, I am satisfied that the mother has acted in a child focused way in relation to their relationship with the father. The mother has shown flexibility in arrangements for the father, facilitated impromptu arrangements for the father to call at her home, coming in and sitting down with the children watching TV, at times to suit the father and with little notice. The mother has offered additional time to the father which he has not taken up. The mother has waited until as late as she sensibly could before making other arrangements when the father has failed to make a decision about whether to have holiday time with the children.
Importantly, the mother has identified the effect on the children, and particularly on [X], of the father’s failure to involve himself in [X]’s life as he would want and she has taken steps to try and help [X] overcome his difficulties. The guidance officer recorded [X]’s own observation about his feelings of anger towards his father who recorded [X] saying adults are not listening..... Mum is listening but can’t make a difference because the problem is about the father[16].
[16] ICL Exhibit 1, date 19/8/09
The mother has not undermined the children’s relationship with their father in any way, despite his lack of engagement with the children.
Effect of any changes in the child’s circumstances
Living in [M] in the Northern Rivers District of New South Wales as opposed to Cairns in tropical Far North Queensland would undoubtedly be a different experience in location and climate and a significant change for the children. [M] appears to be a much smaller location, and there are positive and negatives about such comparisons. [M] is three and half to four hours south of Brisbane, which is approximately two hours by plane from Cairns.
The children have, however, spent a good deal of time on holidays in [M] and they are well used to the area. They appear to have enjoyed their time in [M] which has always had the attraction of spending time with their grandparents and seeing other relatives. This lessens the impact of the change.
In the past the mother has made decisions about the children’s schooling and their needs socially and educationally. The mother recognized that the children might need support in making a transition in moving their lives from Cairns to [M] and it was on this basis that she approached Ms H to get advice as to how to handle their feelings about leaving Cairns, leaving friends all their attachments in Cairns. This was at a time when father said he would not stop the mother moving. The mother wanted to ensure that the children were properly prepared.
I am satisfied that if the children do relocate, that the mother has the ability and willingness to ensure that the children’s transition is as smooth as it could be.
The change to live in [M] would mean that the children would no longer spend four days each alternate week-end with the father. They have not yet spent five regular days with the father, as proposed by him. The change would mean that the time spent with their father would necessarily have to be reconfigured from four days, or five if the father did take the time up, and to occur in a different manner.
Changing the time that the children spend with the father from regular time throughout the school term, to spending time with him in the holidays, has some advantages. The disappointment that the children feel about the father’s lack of engagement with them will be removed on a day to day basis and replaced with an opportunity to spend concentrated time of enjoyment with him several times a year at regular interludes. It provides the father with an opportunity to direct his sole attention to the children, something I consider would significantly benefit both children.
The father would be able to commit to the children as he says he is now going to. He would be able to spend uninterrupted time with both children away from the pressure of his work, having made arrangements to have the time off and organize assistance in the business, as he says he will do. The holidays would present a good opportunity for the children to spend extended quality time with the father, free of the routines of work and school, and dedicate himself solely to the children’s arrangements. As Miss Woodcock has said, the father would need to commit to taking the holidays off and show some change in attitude to the children. The father has the opportunity to explore the possibilities of holidays on the Gold Coast and [M] during the school term, which he said he would do.
The father said he can take as many holidays off as possible and get someone to replace him and he accepts that the mother’s offer to accompany the children means that he could, at the very least, see the children on nights and week-ends if he unexpectedly had to work.[17]
[17] Transcript page 128, line 20
There are signs of the children responding to the differences in parenting styles between their parent, as seen in the mother’s evidence of [Y] using the difference in expectations in behaviour and routine at the mother’s house as compared to the father’s household to try and manipulate the mother to achieve what she wants. The evidence is that the father has much to learn about parenting and is having difficulty with the children’s oppositional behaviour, as observed by
Miss Woodcock. On one occasion [Y] wanted to be taken to her father’s house when she wasn’t getting her own way at the mother’s. The mother was exasperated and took [Y] to the father’s.
As the mother is the unchallenged primary parent, and a parent in whom I have confidence has the ability to properly parent these children, I consider there are signs that the consequences of the father’s poor parenting are destabilizing to the mother’s parenting and may continue to slowly undermine her parental authority. I consider that if the children are primarily living with the mother and spending holiday time with the mother, the opportunities for the father’s parenting to undermine the mother’s parenting is much reduced.
I am not satisfied that the father will readily improve his parenting skills any time soon as he has much to learn about parenting these two very intelligent young children who to my mind have already sensed their father’s weaknesses and are now exploiting them.
Even though he is doing a parenting course, I agree with the submission of Miss Benson for the ICL, that opting to do the course by correspondence, as the father has done, gives me no confidence of any marked improvement. He has yet to agree to the therapy as recommended by Ms Woodcock and then complete it he chooses to undergo such counselling.
This opportunity to demonstrate to the children that he is going to change his past attitudes and commit to spending more time with his children arises on either proposal. On either plan, his relationship with the children will be damaged if he continues to disappoint them.
The responsibility for the father making time with the children in Cairns or elsewhere is entirely his.
Difficulty and expense of contact
The mother has proposed that she bring the children to Cairns to enable the father to spend time with the children in Cairns. The mother says she has good friends in Cairns and she will take the opportunity to stay and visit her friends and ensure that the children are available for the father.
In doing this the mother is taking responsibility for any difficulties which arise and has removed any time or distance difficulties that might have otherwise existed.
If the father is able to spend additional time in between terms with the children, the mother has offered to take the children to a more central location such as the Gold Coast or Northern New South Wales. This would require the father flying from Cairns to the Gold Coast or driving on from the Gold Coast to nearby Northern New South Wales. The father also has the option of going to [M] and taking up free accommodation in his former in-laws’ caravan, though I note he was loathe to do this as the father said he would not be comfortable and it send the wrong message to the children. That is a matter for the father.
If the children remain living in Cairns, there are no issues which arise to do with the cost or difficulty of contact.
There is no evidence of any barrier in terms of cost and difficulty in implementing the mother’s proposals.
Family Violence
There is no reference to domestic violence orders or domestic violence in this matter or that the children have been exposed to either.
Orders that are least likely to lead to other orders
The mother and father each seek orders to bring this matter to finality. The mother has said that if she is not able to relocate she will be shattered, but will nonetheless move on with her life in Cairns with the children.
The father seeks orders as set out in his amended response. He told
Ms H that he wished the litigation was over. I do not consider that either of the party’s proposals is more or less likely to lead to other orders.
The ICL Counsel Miss Benson submits as an option that, if I make an order that the mother be restrained from relocating the children’s residence to [M], but I am sufficiently concerned about the father’s capacity to rise to the occasion and take the time that is available with the children, the Court might consider the mother having the opportunity to “revisit” this issue in 12 months’ time. This arises perhaps from the evidence of the report writer that if the father is not going to make himself available in Cairns, then the argument of them not living in Cairns becomes more difficult[18].
[18] Transcript 24/11/09 page 219 line 25 -
This proposal received only mild support from Mr Betts of Counsel for the father who considered the idea preferable to allowing a relocation at this time.
The order proposed by the ICL will result in a further trial. This trial has proceeded over three days. As I understand it, the only person funded by legal aid is the ICL. The mother and father are privately funded. To make an order restraining the mother from relocating the children and permit the mother to “revisit” the position in 12 months, would mean that these parties would be subjected to further significant expense to run a second trial. The mother has deposed that she already spent significant funds on her legal representation and I am sure that the father’s position is no different. I make no criticism of the lawyers in this regard, it is merely an observation from the parties’ perspective.
The parties commenced their litigation in April 2009. There has been much lead up to the trial and the children have been acutely aware of the dispute between the parents as to the proposed move. This whole family, it seems to me, have done all they could to prepare and engage in this hearing. I consider it would be costly in all respects for this separated family to re-litigate in 12 months and involve uncertainty for at least 12 months.
It also seems to me the process could be flawed. The second trial is proposed on the basis that I am concerned about the father’s ability to “rise to the occasion” and take up more time with and commitment to his children. I am not satisfied that I could rely on the evidence of his behaviour during a period when the spotlight of a further trial is upon him. The results could be artificial: I would have doubts as to whether, if the father changed his behaviour, the change was heartfelt rather than driven by the litigation.
Meaningful Relationship
In terms of benefit to the children of having meaningful relationship with each of their parents, on either of the proposals of the parties they will be living primarily with their mother and will continue to have a meaningful relationship her.
The proposal of the mother and children moving to [M] introduces limitations to the frequency and nature of the time spent between the children and their father however, the mother has re-configured the time they are to spend with the father to be taken in block times during holidays and other occasions to enable them to have a meaningful relationship with the father.
There are various facets to the parent-child relationships in this matter and some complexities which I will be mindful of when making orders to enable the children to have a meaningful relationship with the parents.
Equal Shared Parental Responsibility
Each of the parents has requested shared parental responsibility. There is no evidence of family violence or child abuse to rebut the presumption, and I intend therefore to make an order for equal shared responsibility.
Having made that decision I am required to consider by reference to s.65DAA(1) and (2) whether to make orders that the children spend equal time and if not equal time, then substantial and significant time with each parent. .Reference is also to be made to the matters which arise for consideration under s.65DAA (5) as to the practicality of such orders.
Neither of the parents is seeking an order for equal time. The parents are largely agreed with the orders if the children are to remain living in Cairns, save the block time of five days is either taken in one block, or two as proposed by the father. I therefore consider that the issues of practicality in relation to an equal shared time order do not arise.
Evaluating the proposals – discussion
The father’s proposal provides for a continuity of the post separation arrangements. It means that the children will be available in Cairns to spend time with him regularly. The proposal that the children remain in Cairns and live with their mother will mean that the children can continue their schooling and maintain their friendships in Cairns.
Living with the mother in Cairns enables the father to continue to drop around to the mother’s residence and see the children on an ad hoc basis, which he has done in the past. I do not, however, consider that the mother should be required to facilitate this arrangement and indeed the day may come when understandably the mother will consider that it is too intrusive into her own life to have the father coming in and watching TV with the children at her home. The mother has tolerated the arrangement to date. It is very convenient for the father, but I am not convinced that it is an appropriate way for the father to be spending time with the children or meaningful time with the children.
If the children remain living in Cairns with their mother, this offers the prospect of the children having regular time with their father, as they have done during the school term, from Friday to Tuesday or Wednesday morning. This would give the father the opportunity to be involved at all levels of the children’s schooling and to attend the children’s sporting and social interests.
The evidence as to the father’s involvement to date in the children’s lives, however, leaves me unconvinced that the father will take up the opportunities that are open to him and have been for over a year since separation and for many years prior to that.
Miss Woodcock considers that the father needs counselling to change what she regards as an addiction to work. Whether or not the father has an addiction, his behaviour is that he has chosen to put his work commitments over those of his children’s need to see him.
On the mother’s proposal the children will live in [M] and the mother will be able to move interstate and move on with her life in accordance with her right to freedom of movement. This right must, though, always give way to the best interests of the children. She says, and I accept, that she will obtain employment and receive rent free accommodation with her parents whilst she saves to purchase a home for herself and the children. The father’s proposal prevents the mother from receiving the support of her family available in [M]. It also prevents her from taking advantage of the financial opportunities available to her in [M].
I accept that in [M] the mother will be assisted in her parenting of the children through the support of her parents who have already demonstrated they are involved at a most practical level in the children’s lives and who have spent much time with the children doing activities which are very child focused.
I have analysed the evidence carefully in relation to the children’s views. Counsel for the ICL Miss Benson submits that I will not place a great deal of weight regarding the statement of [X] to the guidance officer that he wants to move South, given the history of the other statements he has made about missing his father.
Miss Benson of Counsel for the ICL submits that [X] is missing his father and he will not be able to see more of him if he moves to [M]. This submission assumes that [X] will get to see more of his father if he stays in Cairns. Reference was made to a period when [X] did not see his father for ten days. The evidence is, however, that [X] has been missing his father for years, not days and this has been noted by the team of professionals who have worked with [X] at school and who have been trying to help [X] with his lack of self esteem and social problems. [X]’s difficulties with his sadness and unfulfilled relationship with his father has occurred whilst [X] has been living in the same house and the same town as the father.
The evidence at the time of trial is that [X] has a most troubled relationship with his father. It is the lack of a relationship with the father during the time the children have lived in Cairns, that has caused [X]’s sadness, anger, shame and loss of self respect.
As I have said elsewhere in these reasons, I accept the evidence of
Ms H and her observations. The evidence of [X]’s discussions with the guidance officer to my mind, point to him clearly articulating that he would like to move and he will be disappointed if he is made to stay. The evidence of the guidance officer is that [X] holds no hope that that his father will change.
Geographical distance has not played a part in the father’s reluctance to spend time with his children. It seems to me that it is the father’s emotional distance that has caused the problems.
The evidence is that the father needs to change his passion from his work to his children. I consider that the father has a lack of insight into, and understanding of, his children’s emotional needs.
I have little confidence that the father is going to develop insight into both his own behaviour and its affect upon the children. I considered that the father was unwavering in his view that that his parenting of the children in the past has not affected the children. It is his view that the mother and children did not suffer whilst he paid attention to his work[19]. There was no evidence that the father has resiled from this position in either his affidavit material or in his oral evidence at trial. In my view there was no concession or understanding of the harm that has been caused by the father’s lack of interest in his children’s lives.
[19] Family Report, paragraph 198.
The evidence is that [X] in particular holds no hope that his father will change. I intend to make Orders that will give the father the opportunity to have the relationship with his children that they both are seeking.
As to the suggestion of making an order for further litigation in
12 months on the same issue, I consider that this is fraught with difficulty in that the forensic process is expensive in terms both of money and personal anxiety and holds yet more uncertainty for the parties and their children in the meantime.
As to the mother’s proposal that the children live with her in [M]
I consider that there are some advantages.
The mother is the uncontested primary carer of the children. She will be able to move on with her life. The mother is still a young woman at age 34 and she wishes to live elsewhere. Her reasons for moving are based on a desire to improve her life and the children’s lives, both financially and emotionally. Her proposals for the children to spend time with the father during holidays would result in the children seeing the father on less occasions than if they lived in Cairns, however, the alternative arrangements provide the father with an opportunity to change the current arrangements which see the children each complaining they about the lack of time with the father. The father has committed to making change. I consider he needs to.
I consider the children do not have a meaningful relationship with their father at the present time. If he does make changes, I am satisfied that the arrangements I intend to make will enable the children to have a meaningful relationship with their father and serve their best interests.
The mother’s proposal would enable the father to spend holidays with the children in Cairns or elsewhere at his convenience. The father has the opportunity to give the children his undivided attention, to make plans and commit to them. He is not a father who has shown any interest in becoming involved in the children’s schooling or activities. Whilst residing in Cairns and seeing the children during the school term the father has not taken the opportunity to spend much of the school holidays with the children. I consider that while the children are living in Cairns there will be little change on father’s part in terms of his availability to the children.
I consider as outlined that is some merit in the children spending their time with the father in a different form such as is presented on the mother’s proposal. The father has the opportunity to plan in advance, to quarantine his time and to give the children his undivided attention. They will continue to have an opportunity to enjoy the physicality of their relationship with the father. I consider they will be saved from the disappointment of the lack of involvement by the father on a regular basis as has occurred in Cairns to date.
I have had regard to all of the circumstances, facts, evidence and findings and I am satisfied that having evaluated the competing proposals, that the best interests of [X] and [Y] will be served by making an Order in terms of the mothers application, that is, that the mother be permitted to relocate with the children to [M] and the children spend time with the father as outlined in the mother’s application.
I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Willis FM
Deputy Associate: Matthew Filippi
Date:25 January 2010
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