Langan & Langan
[2021] FCCA 921
•7 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Langan & Langan [2021] FCCA 921
File number(s): CAC 700 of 2012 Judgment of: JUDGE W J NEVILLE Date of judgment: 7 May 2021 Catchwords: FAMILY LAW Parenting unilateral relocation of mother and children to Queensland dispute about whether relocation was consented to where mother has been primary carer and seeks to remain in Queensland with the children where father seeks the return of children to the ACT and a change in residence where mother will remain in Queensland if the relocation is not permitted high level of parental conflict presumption of equal shared parental responsibility rebutted consideration of children’s best interests Legislation: Evidence Act 1995 (Cth), s 79
Family Law Act 1975 (Cth), ss 60CA, 60CC(3), 65DAA
Cases cited: AMS v AIF (1999) 199 CLR 160
Asher v Wilkinson (2020) 61 Fam LR 523
Australian Securities and Investments Commission v Rich (2005) 218 ALR 764
B & B [2006] FamCA 1207
Blanding v Blanding (2017) 55 Fam LR 218
KB & TC (2005) 33 Fam LR 471; (2005) FLC 93 224
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Cales & Cales (2010) 251 FLR 454; (2010) 44 Fam LR 376
Collu & Rinaldo [2010] FamCAFC 53
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
F v F (2008) 38 Fam LR 52
Fox v Percy (2003) 214 CLR 118
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Goode v Goode (2007) 36 Fam LR 422
Hepburn & Noble (2010) FLC 93-438
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Morgan v Miles (2007) 312 FLR 114; (2008) 38 Fam LR 275
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Mulvany v Lane (2009) 41 Fam LR 418
Paskandy & Paskandy (1999) 154 FLR 437; (1999) FLC 92-878
Payne v Payne [2001] Fam 473; [2001] 2 WLR 1826
P & P (2005) FLC 93-239; (2005) 34 Fam LR 340
R v R (2000) 155 FLR 29; (2000) 25 Fam LR 712
In the Marriage of Radford & Alpe (1985) 10 Fam LR 135
Sealey & Archer [2008] FamCAFC 142
Sheldon & Weir (No.3) [2010] FamCA 1138
Sigley v Evor (2011) 44 Fam LR 439
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2008) 37 Fam LR 461
U v U (2002) 211 CLR 238
Vontek v Vontek [2017] FamCAFC 28
Wiley & Wiley [2008] FamCAFC 153Number of paragraphs: 212 Date of last submission/s: 28 January 2021 Date of hearing: 25 & 26 November 2020 Place: Canberra Counsel for the Applicant: Mr G Stagg Solicitors for the Applicant HCC Lawyers Solicitors of the Respondent: Self-Represented Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 700 of 2012 BETWEEN: MR LANGAN
Applicant
AND: MS LANGAN
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
7 MAY 2021
THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The Mother have sole parental responsibility for all matters relating to health and education for the children X born in 2008 (“X”) and Y born in 2011 (“Y”) (collectively referred to as the “children”). Absent cases of emergency, the Mother is to consult the Father over such matters prior to making a final decision.
3.In relation to all other major long-term issues, parental responsibility will be shared equally between the parents.
4.The children live with the Mother.
5.Subject to any other agreement in writing between the parents, the children spend time with the Father as follows:
(a)From the date of these Orders to 20 February 2026 as follows:
(b)Any time during the gazetted QLD school holidays that the Father elects, and the Father shall provide the mother with at least 60 days’ notice of the dates when he elects to exercise that time;
(c)Up to 4 occasions per year, weekend visitations (exceeding no more than 4 days in duration), with the Father providing at least 60 days’ notice on each of these 4 occasions.
6.For the purposes of handovers:
(a)The children are collected from the airport; or in instances where the parents are both present, the nearest police station.
(b)Ms B is not to attend any of the handovers of the children where the mother is present
7.The Father is authorised to obtain copies of all notices, information, reports and invitations from the children’s educational providers, and is authorised to obtain all information, reports or advice from any of the children’s medical or counselling professionals.
8.Each of the parties shall provide up to date contact numbers, addresses and emails to the other.
9.Each of the parties is authorised to attend all sporting or extracurricular activities of the children.
10.Absent any emergency, Ms B is not to contact Ms Langan – and vice versa – the Mother is not to contact Ms B.
11.The parents shall share equally the cost of all schooling, medical treatment and sporting activities for the children. The Father is to reimburse the Mother for half of the costs associated with these activities within 28 days, on production of a tax invoice.
12.The Father is to pay for the costs of the children travelling to Canberra for visitations with him and the Mother is to pay for the cost of the children returning to QLD from spending time with the Father.
13.In the event that, for whatever reason, the children are unable to board their previously agreed and scheduled flight, it is the parent’s responsibility (who has physical custody of the children at the time) to arrange for, and pay, for an alternative, agreed replacement flight.
14.In the event that there are any further disputes between the parties concerning issues affecting the welfare of the children, the parents shall attend mediation.
15.The Mother is restrained from changing the residence of the children from their current residence in Queensland without the prior written consent of the Father, or Order of the Court.
16.All extant Applications are dismissed. The matter is now finalised and will be removed immediately from the docket.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Langan & Langan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
The current proceeding concerns parenting Orders for the two children of the parties’ relationship, 13 year old X, and 10 year old (in 2021) Y (either “the children” or “the girls”).
At the outset of her written submissions, the Independent Children’s Lawyer (“the ICL”) fairly noted the following, with which I agree:
5. Despite the high level of conflict between the parties which existed for a long period of time, both children appear to be remarkably unaffected and retain a close and loving relationship with each parent. This is to the credit of the Mother that has been retained despite her living in Queensland with the children since July 2019.
Ultimately, while there were many issues before the Court – procedural and substantive – as in all parenting cases, pursuant to the paramountcy principle in s.60CA of the Family Law Act 1975 (Cth) (“the Act”), there is only one question for the Court to answer: “what Orders are in the children’s best interests?”
The overlap of procedural and substantive issues most regularly surrounded the Mother’s unilateral relocation to Queensland in July 2019. The basic thrust of the Mother’s evidence was what she described as the Father’s position on any particular issue changing regularly. Regarding the vexed issue of the relocation, the Mother said that the Father initially agreed to her and the children moving to Queensland. However, she said that he later “reneged” on his earlier agreement, as the Mother claimed he regularly did.[1]
[1] Among other places, see T 106.
In this regard, notwithstanding a significant amount of competing evidence, there is an important Child Inclusive Memorandum, dated 15th November 2019 (“the Memo”), from Ms C of the Brisbane Registry of the Court, which became Exhibit D. That Memo confirmed (par.1) that there was agreement between the parties for the children to live with their Mother in Queensland and to spend regular time with the Father. Ms C was not required for cross examination. This Memo is discussed further below, notably in the discussion of the Father’s evidence. In this regard, I note that in the Father’s lengthy Affidavit, filed 5th December 2019, at pars.2 – 9, he outlined at some length details of conversations he had with the Family Consultant prior to, and during the Child Inclusive Conference held in Brisbane on 15th November 2019. In my view, much of the material set out in those paragraphs, and especially his discussions with Ms C, should not have been presented to the Court. In my view, as noted below, this was an exercise in the Father “explaining” his version of events of what, in his view, actually happened at and during the meeting with Ms C. It was a very clear instance of the Father seeking to qualify, quite heavily, other evidence.
In my view, the Memo is significant, not least because (a) it is consistent with the Mother’s account generally, and (b) accepting that human error affects us all, it is nonetheless difficult to imagine any Family Consultant being (apparently) so starkly confused (as the Father contends) on the most basic and critical issue in dispute, namely the Mother and the girls living in Queensland. Further, the Father agreed with much else that was recorded in the Memo, which only makes it stranger that only the most fundamental issue – relocation – was, on the Father’s account, so badly and inaccurately recorded by Ms C.
It was a curious feature of the Father’s evidence how often he said there was “confusion” about crucial matters involving the children, which he then had to “explain” what he had in fact meant by his actions or comments. Three instances that required the Father to explain to the Court what he had actually meant, intended or understood, in contrast to what the unchallenged facts perhaps more reasonably or likely indicated, were:
(a)In the s.11F Memo, the Family Consultant recorded that the parties had agreed on the Mother and the girls living in Queensland. The Father “explained” that he had told the Family Consultant that he would be open to discussing the Mother and the girls living in Queensland, but that there was no actual agreement;
(b)The Father had signed an interstate student transfer form for the girls to attend school in Queensland. The Father “explained” that this was not an indication of his agreement to the Mother and the girls living in Queensland but rather an attempt to ensure that the girls’ education was “not impacted.”[2] Curiously, perhaps, the Father confirmed that he did not advise the Mother of him signing this transfer form. He did not explain why he did not do so;
(c)The Father confirmed that X, for example, had “vocalised” her desire to remain living in Queensland,[3] but he suggested that what X was really saying was that her interest in sports guided her response to want to stay in Queensland.[4] There was no evidence to support the Father’s nuanced “gloss” on X’s views.
[2] T 36.
[3] T 64.
[4] T 64.
In addition to these examples, there was the following further instance that showed the capacity, if not the propensity, of the Father’s loquacious emails to make more opaque his intentions.
Annexure B to the Father’s Affidavit, filed 4th November 2020, is a one and a half page email to the Mother, dated 22nd May 2019. Among other things, par.2 of that email stated: “I don’t consent to or support your decision to move X and Y with you to Queensland.” The last paragraph of that email then stated:
I’m happy to discuss these issues and enter into a mediation process if you would like to. There may be other options you might consider if you still intend to make the move interstate. Let me know if this is of interest and I can organise a mediation process with D Families or similar.
The Father obviously knew (and knows) the Mother very well.. It seems reasonably clear that she had made it known by this time that she intended to move to Queensland. In the light of her evidence, it is reasonably clear that she is not a person who is lightly turned from a decision she has made. The Court may reasonably infer that the Father would know this. That being so, the Father’s offer to mediate a resolution, while not determinative, tended to undercut or perhaps at least to blur or cloud his clear message expressed earlier in the email that he did not agree to the proposed relocation to Queensland.
Contrary to the views of the ICL, and the Family Consultant, Ms E (whose actual opinion only came to light during her cross examination – discussed later in these reasons), in my view, considering all the evidence, the following considerations point clearly in one direction, namely for the children to continue to live with the Mother in Queensland and to spend regular time with the Father, primarily during school holidays, and as otherwise agreed. Subject to what is set out later in these reasons, the crucial factors that lead to this conclusion as being in X’s and Y’s best interests are (summarised):
(a)As the ICL made plain, and noted above, notwithstanding the terrible co-parenting relationship between the parents, the children “appear to be remarkably unaffected and retain a close and loving relationship with each parent. This is to the credit of the Mother ….” Such clear evidence completely under-cuts the submissions by the Father, and other submissions by the ICL (and the evidence of the Family Consultant, Ms E), of the potential “risk” to the Father-daughter relationships if the girls remained living with the Mother in Queensland;
(b)The Mother has been the children’s primary carer for a significant number of years. The parties separated in 2012. There were earlier proceedings in this Court that concluded in 2013. The Orders then made provided for the parents to have equal shared parental responsibility, and for a gradual increase in the Father’s time, moving to unsupervised day-time in in July 2013, leading to overnight time commencing in September 2014;
(c)The Father confirmed in his trial Affidavit, filed 4th November 2020 (par.7) that the 2013 Orders continued to operate until mid-July 2019. Those Orders provided for the children to spend time with the Father each alternate weekend, one overnight (Wednesday) in the off-week, and half of school holidays. Compared to the current regime, a change in the residence of the children whereby they would be placed in the Father’s primary care would, on any view, be a very significant, if not a radical, change in the live-with and care arrangements for the children;
(d)The closeness of the relationship between the girls and their Mother was noted in the earlier Family Report of Ms F, dated 31st October 2012. That Report was used in the earlier proceedings where there was a highly contested claim by the Mother against the Father regarding alleged grooming of X by him; Ms F confirmed, at p.29, that “there was no indication that Mr Langan presents any risk to the children”. At p.28 of that Report (Exhibit B in the current proceeding), Ms F referred to, among other things, X being able to manage overnight time with her Father, “in principle”, but “this would not, at this stage, be in her best interests while the relationship between Mr Langan and Ms Langan [Ms Langan] remain highly conflictual …” Ms F also said that it would be preferable for Y and X not to be separated overnight;
(e)Accepting the age of the 2012 Report, and notably the much younger ages of the children at the time, Ms F also recommended (p.29) that Mr Langan attend a parenting program to further strengthen his capacities. She further noted that both parents “have appropriate attitudes to the children and to their responsibilities of parenthood.” She continued: “However, there are current serious difficulties in relation to their attitudes to each other, and this has had significant implications for the children’s time with their Father since he left the marital relationship.” As well as recommending that X and her parents engage in therapeutic counselling, Ms F also recommended (at p.31) that the Mother engage a psychologist “to address and manage her anxiety about her daughters’ relationship with their Father”;
(f)With only little qualification amidst the particular turmoil of the current contest between the parents, especially during the trial, the consistent view of the children (noting in particular X’s age) has been to remain living with their Mother in Queensland. This included a very recent discussion (actually and surprisingly, during the trial) between X and the ICL, the notes of which became Exhibit E. Indeed, during the trial, after the Father had curiously provided X with the mobile phone number of the ICL, both girls confirmed to the ICL (via the discussion between the ICL and X) their wish to remain living in Queensland with their Mother;
(g)It seemed not to be disputed that, academically and otherwise, the children were doing better at school in Queensland than they had been in the ACT;
(h)Somewhat concerningly, there was significant lack of attention in submissions to the risks to the children changing residence from their long-time primary carer, contrary to their clearly expressed views. Such focus as there was on a change in the girls’ primary residence related to them having lived for a significant part of their lives in Canberra, and that they had kept up relationships with friends in Canberra via social media and regular visits. Otherwise there was little or no “risk assessment”, so to speak, about the reaction and impact on the girls of a change in their primary residence, and in particular not being in the primary care of their Mother;
(i)In relation to a change in residence, as set out in more detail later in these reasons, the Father’s evidence about how he would deal with adjustment issues for the girls was, in my view, rather clichéd, and lacking in detail and insight. In seeking a change in residence, the Court could have reasonably expected the Father to have some basic information to provide to the Court about what precisely he would do to support the girls, such as the inquiries he had made with counsellors, and/or the possible or likely schools they would attend, and the support there available. This is not to deny that the Father loves the children, or that he would not do whatever was necessary. Rather, there was lacking basic detail about how he would “manage” the emotional and other possible (or likely) risks to the girls’ associated with leaving their Mother and being forced to live with him, contrary to their clear wishes. The likely or potential import of such a radical change in the girls’ living arrangements seemed to be treated by the Father as more an exercise of “management”, as opposed to having clear knowledge and insight into the character, personality, needs and responses, and all else, of each of his daughters. This is especially so in circumstances where the Father acknowledged in his oral evidence that Y was regularly “challenging” in her relationship with him,[5] which had been the case since he formerly spent supervised time with the girls a number of years ago.
[5] See T 69.
Perhaps even more summarily, in my view the “views” of the children – particularly 13 year old X (and there being no proposal before the Court that the girls should be separated) – should be given quite significant weight. They have been clear and, especially in recent times, consistent in their views to continue to live with their Mother in Queensland. In my view, it would risk far too great a disruption to change their residence after such a long time with their Mother, in circumstances too where there is no doubt that the girls currently (and for the most part, consistently since separation) have a good and close relationship with him. For all of the disruption, mayhem and discord in the parental relationship, the Mother has nonetheless clearly promoted the children’s relationship with their Father, a fact properly noted by the ICL.
In addition to what has already been said, for the reasons that follow, with some “tweaking”, the Orders sought by the Mother are, in my view, in the children’s best interests.[6]
[6] For completeness, I note that an earlier Contravention Application filed by the Father was withdrawn on the first day of the trial. See Orders dated 25th November 2020.
APPLICANT’S ORDERS SOUGHT
The final Orders sought by the Applicant Father were outlined in his Case Outline, filed 19th November 2020. He agreed with and adopted the Orders sought by the Independent Children’s Lawyer. They were as follows:
1. That all previous parenting orders be discharged.
2.That the Applicant Father have sole parental responsibility for the children Y born in 2011 and X born in 2008 (‘the children’).
The Children’s Return to the ACT
3.That the Respondent Mother facilitate the children being returned to the ACT on or before 11 January 2021 (being three weeks prior to the commencement of the 2021 ACT school year); and
4.That, in relation to Order 3 above, the Respondent Mother ensure that the children are returned to the ACT together with their personal effects and belongings.
Lives With/Spends Time With (where the Mother remains in Queensland)
5.That, in the event the Respondent Mother chooses to remain in Queensland, from 11 January 2021 and continuing, the children live with the Applicant Father and spend time with the Respondent Mother as follows:
a. For the whole of the Term 1, 2 and 3 school holiday periods;
b.For half of the Term 4 (Christmas) holiday period as agreed in writing or, failing agreement:
i.For the second half of the Christmas holidays in 2021/2022 and continuing each alternate year thereafter;
ii. For the first half of the Christmas holidays in 2022/2021 and continuing each alternate year thereafter; and
c. At any other time as agreed between the parties in writing.
6. That, in relation to order 5 above, the parties share equally the costs of any travel to be undertaken by the children, with the Respondent Mother to be at liberty to spend her time with the children in Queensland.
Lives With/Spends Time With (where the Mother returns to the ACT)
7. That, in the event the Respondent Mother chooses to return to live in the ACT the children live with each party in a shared-care week-about arrangement with changeover to occur each Friday at 3:00pm or the conclusion of school.
The Children’s Schooling
8.That the parties do all things and sign all documents necessary to enrol the children into a school nominated by the Applicant Father with documents to be signed by the Respondent Mother within 7 days of the Applicant Father making such a request of her.
9.That, in relation to Order 8 above and in the event the Respondent Mother does not comply with a request made by the Applicant Father pursuant to Order 8, a Registrar of the Family Court of Australia execute the documents pursuant to section 106A of the Family Law Act 1975.
10.That each party be at liberty to communicate with the children’s school/s and obtain any documentation or information from the school/s to which parents would ordinarily be entitled.
11.That each party be at liberty to attend at the children’s school/s for events that parents would ordinarily be entitled to attend including, but not limited to, parent/teacher interviews, sports carnivals and assemblies.
12.That each party be at liberty to communicate with the children’s treating professionals and obtain any documentation or information from those treating professionals to which parents would ordinarily be entitled.
Other
13. That each party facilitate the children communicating with the other party as follows:
a.On special occasions including each of the children’s birthdays, Easter Sunday, Mother’s Day, Father’s Day and Christmas; and
b. At any reasonable time in accordance with the wishes of the children.
14. That each party is restrained by injunction from making denigrating or derogatory remarks about the other to the children, within earshot of the children, or allowing any third party to do the same.
However, the Applicant Father is not opposed to an order for Equal Shared Parental Responsibility should the court find such order is in the best interests of the Children.
RESPONDENT’S ORDERS SOUGHT
The final Orders sought by the Respondent Mother were set out in her Case Outline, filed 17th November 2020. In the Written Submissions of the Respondent Mother, filed 7th January 2021, at par.60, she outlined that the only change to her Orders sought was that she sought an Order for sole parental responsibility;
FINAL ORDERS SOUGHT
1. That all previous Orders be discharged.
2.That the parties have equal shared parental responsibility for the children X born in 2008 (“X”) and Y born in 2011 (“Y”)(collectively referred to as the “children”).
3. That the children live with the mother.
4. That the children spend time with the father as follows:
4.1 From the date of these Orders to 20 February 2026 as follows:
4.1.1 Any time during the gazetted QLD school holidays that the father elects, and the father shall provide the mother with at least 60 days notice of the dates when he elects to exercise that time;
4.1.2 Up to 4 occasions per year, weekend visitations (exceeding no more than 4 days in duration), with the father providing at least 60 days notice on each of these 4 occasions.
5. That for the purposes of handovers:
5.1.1 The children are collected from the airport; or in instances where the parents are both present, the nearest police station.
5.1.2 Ms B is not to attend any of the handovers of the children where the mother is present
6.That the father is authorised to obtain copies of all notices, information, reports and invitations from the children’s educational providers and is authorised to obtain all information, reports or advice from any of the children’s medical or counselling professionals.
7.Each of the parties shall provide up to date contact numbers, addresses and emails to the other.
8.Each of the parties is authorised to attend all sporting or extracurricular activities of the children.
9. Ms B is not to contact Ms Langan via any means.
10. The parents shall share equally the cost of all schooling, medical treatment and sporting activities for the children. The father is to reimburse the mother for half of the costs associated with these activities within 28 days, on production of a tax invoice. The father is to pay all court costs if the mother must initiate court proceedings to enforce this clause.
11. The father is to pay for the costs of the children travelling to Canberra for visitations with him and the mother is to pay for the cost of the children returning to QLD from visitations.
12. In the event that, for whatever reason, the children are unable to board their previously agreed and scheduled flight, it is the parent’s responsibility (whom has physical custody of the children at the time) to arrange for, and pay, for an alternate agreed replacement flight.
13. In the event that there are any further disputes between the parties concerning issues affecting the welfare of the children, he and she shall/attend further mediation.
ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWER
The final Orders sought by the Independent Children’s Lawyer were attached to the Written Submissions filed 28th January 2021. They are as follows:
THAT:
1.All previous parenting orders be discharged.
2.The Applicant Father have sole parental responsibility for the children Y born in 2011 and X born in 2008 (‘the children’).
The Children’s Return to the ACT
3.The Respondent Mother facilitate the children being returned to the ACT as soon as practicable; and
4.In relation to Order 3 above, the Respondent Mother ensure that the children are returned to the ACT together with their personal effects and belongings.
Lives With/Spends Time With (where the Mother remains in Queensland)
5.In the event the Respondent Mother remains living in Queensland, from the date the children are returned to the ACT and continuing, the children live with the Applicant Father and spend time with the Respondent Mother as follows:
a.For the whole of the Term 1, 2 and 3 school holiday periods;
b.For half of the Term 4 (Christmas) holiday period as agreed in writing or, failing agreement:
i.For the second half of the Christmas holidays in 2021/2022 and continuing each alternate year thereafter;
ii.For the first half of the Christmas holidays in 2022/2023 and continuing each alternate year thereafter; and
c.At any other time as agreed between the parties in writing.
6.In relation to order 5 above, the parties share equally the costs of any travel to be undertaken by the children, with the Respondent Mother to be at liberty to spend her time with the children in Queensland.
Lives With/Spends Time With (where the Mother returns to the ACT)
7.In the event the Respondent Mother returns to live in the ACT, the children live with each party in a shared-care week-about arrangement with changeover to occur each Friday at 3:00pm or the conclusion of school at the children’s school or such other location as is agreed between the parties in writing.
The Children’s Schooling
8.The parties do all things and sign all documents necessary to enroll the children into a school nominated by the Applicant Father with documents to be signed by the Respondent Mother within 7 days of the Applicant Father making such a request of her.
9.In relation to Order 8 above and in the event the Respondent Mother does not comply with a request made by the Applicant Father pursuant to Order 8, a Registrar of the Family Court of Australia execute the documents pursuant to section 106A of the Family Law Act 1975.
10.Each party be at liberty to communicate with the children’s school/s and obtain any documentation or information from the school/s to which parents would ordinarily be entitled.
11.Each party be at liberty to attend at the children’s school/s for events that parents would ordinarily be entitled to attend including, but not limited to, parent/teacher interviews, sports carnivals and assemblies.
12.Each party be at liberty to communicate with the children’s treating professionals and obtain any documentation or information from those treating professionals to which parents would ordinarily be entitled.
Other
13.Each party facilitate the children communicating with the other party as follows:
a.On special occasions including each of the children’s birthdays, Easter Sunday, Mother’s Day, Father’s Day and Christmas; and
b.At any reasonable time in accordance with the wishes of the children.
14.Each party is restrained by injunction from making denigrating or derogatory remarks about the other or the other’s partner to the children, within earshot of the children, or allowing any third party to do so.
A procedural excursus
It is important to note the following matters for a number of reasons, one of which relates to the historical circumstances that led to a final hearing being held rather than, as originally sought by the Father (and supported by the ICL), an interim hearing.
After the Mother and children moved to Queensland in July 2019, the Father filed an Initiating Application on 3rd June 2019. The Father then filed an Amended Initiating Application on 16th August 2019, ahead of the first return date on 19th August 2019.[7] Summarised, the matters canvassed at that hearing were:[8]
[7] The Transcript for that listing hearing became Exhibit C1.
[8] There was an issue regarding a subpoena objection; I need not address that matter which quickly resolved. Parts from this Transcript were put to the Mother during her cross examination regarding her relocation to Queensland and the Father indicating that he did not consent to that as outlined in his Application filed in August 2019.
(a)The Father confirmed that he was seeking that the Mother and children return to the ACT region;
(b)The Mother maintained that she advised the Father in May 2019 that she and the children were moving to Queensland;
(c)When asked if the Father agreed to the move, the Mother initially said that the Father did not agree, but qualified her comment, saying that there “wasn’t agreement or disagreement;”
(d)The Mother maintained (in my view, somewhat implausibly) that the move really did not impact on the Father’s time with the children because all she was doing was offering him different time with the children, and was not otherwise reducing the number of days with the children, especially in circumstances where, the Mother said, the Father regularly did not take up all of his time with them anyway;
(e)The Mother, in her typically voluble way, explained the Father’s consistent lack of financial support for any medical, and other, expenses (e.g. school) for the children, and his consistent refusal to sign forms for various matters at the children’s school. Somewhat histrionically, she referred to the ongoing litigation as “death by application”;
(f)The Father complained (somewhat unfairly and unrealistically) that the Mother had not put on a Response to the Amended Initiating Application. I pointed out that it was filed only 3 days prior to the listing date and directions hearing;
(g)Because of the age of the children, among other things, I appointed an Independent Children’s Lawyer (“ICL”);
(h)A timetable was fixed for the filing of Response material by the Mother (28 days); and
(i)The Father understandably raised issues regarding time with the children in the forthcoming school holidays. On this issue, the Court simply noted that it was for the parties to work out something in the light of the existing 2013 Orders regarding school holidays. In this regard, the Mother said that she would pay half of the airfares involved. To the reference to the 2013 Orders, the Father simply said: “Okay. Well your Honour, obviously I can’t execute on those current Orders.”
The matter next came before the Court on 15th October 2019.[9] Summarised, the matters addressed at that directions hearing were:
(j)The Father confirmed that he went to Queensland during the holidays in August 2019. After much “to-ing and fro-ing”, he said that the “organization went well”, and that his two weeks with the children were “absolutely perfect”;
(k)The ICL’s representative at the time said that the ICL had not yet been able to meet with the children, and that the ICL confirmed her support for there to be an interim hearing;
(l)Given the competing contentions, the Court inquired generally whether there should be a s.11F conference in order to obtain some independent evidence. The ICL confirmed that she would support this course, especially given the ages of the children at that time (11 and 8 years respectively);
(m)In response to details setting up the S.11F conference, the Father said: “I don’t want the girls having to come down to Canberra unnecessarily so I’m happy to fly out …”;
(n)The Father confirmed again that he was content for the Child Inclusive Conference (“CIC”) to take place in Brisbane;
(o)The CIC was fixed to take place in Brisbane on 15th November, while the adjourned date before the Court was set for 10th December 2019.
[9] The Transcript for that occasion became Exhibit C2.
The last Court event, prior to the final hearing as it turned out (in part due to the intervention of the COVID-19 pandemic), occurred on 10th December 2019.[10] Summarised, the matters addressed on that occasion were:
[10] The Transcript for that occasion became Exhibit C3.
(p)The Father filed an updated Affidavit (on 5th December 2019) outlining his “corrections” and concerns about matters set out in the child inclusive s.11F Memorandum of Ms C, dated 15th November 2019. As explained by the ICL, the Father’s explanation was that what was being discussed with the Family Consultant was a hypothetical scenario of the children remaining in Queensland with the Mother;
(q)The ICL outlined her concerns about the “manner in which the Mother relocated to Queensland” but also noted that “the children have a very good relationship with the Father.” The ICL further noted that the children would miss him if they were to remain in Queensland with the Mother;
(r)The ICL expressed concern about the Mother stating that she would not return to the ACT region if the children were placed in the primary care of the Father. Such a course would, as noted in the CIC Memorandum, likely have an adverse impact upon Y;
(s)The ICL also expressed “significant concerns” about the Mother’s “capacity and willingness to facilitate a relationship between the children and the Father, if she were not made to return the children”;
(t)The Father said that he supported the position of the ICL. He also said that the discussion with the family consultant was “an open discussion about what options were on the table…”;
(u)There was a somewhat prolonged discussion regarding Christmas holiday arrangements, in particular a specific week in the Christmas holidays nominated by the Mother to the Father in April 2019, and that, on the Mother’s account, the Father could have the rest of the school holidays. The Mother said that the Father originally agreed with this proposal but had since changed his mind. She said this was his usual way of operating – proposing to have the girls for a lesser period than was offered;
(v)The Mother reiterated her contention that the Father originally agreed with the Mother and the children moving to Queensland but that he later changed his mind. Likewise, she said, the Father changed how much school holiday time he would have with the children, indicating that his motivation (I infer, in part) was financial because of the possible impact upon his child support payments if he had the children for longer periods of time;
(w)Again, the ICL expressed concern that if the children remained with the Mother in Queensland “there will probably be shortly an end to any meaningful relationship between the children and the their Father”;
(x)The Court expressed the “gravest concern” for the parties, especially regarding their toxic relationship. This led the Court to fix the matter for final hearing (on a date to be advised) and for a s.62G Report. The object was to see what options there might be to have the matter heard as soon as possible on a final basis because of the clear range of significant difficulties, rather than to try to find time for an interim hearing and a later final hearing;
(y)The ICL expressed concern about the risks of the children remaining in Queensland pending a final hearing. The Court acknowledged those concerns, and equally noted how unsatisfactory for the parties (and the Court) any and all options available to the Court were in the circumstances. It was, the Court observed, primarily a function of lack of resources, which, again, was of no comfort to the parties (or the Court);
(z)The Mother started to raise concerns about what she described as “the conduct of the ICL”; this discussion was not permitted to be advanced until a final hearing.
It is not a panacea for lack of resources, which includes timely hearing dates, but it is nonetheless important to note (again) the impact of the COVID-19 pandemic on the availability of hearing dates. The pressure from the pandemic added to the malaise of the Court in being able to accommodate trials and other hearings in as timely a manner as possible. All of this added to the perennial crush of matters seeking hearing time, many of them (like the present matter) of some urgency. All of this is to acknowledge that circumstances, including lack of resources by the Court, unfortunately conspired to prevent the matter being heard as urgently as everyone – including the Court – would have wished. That said, it was approximately 15 months between the first return date in August 2019 and the final hearing in November 2020. It is (again) no comfort to anyone (including the Court) that there was such a relatively short time for the final hearing to take place after the first return date, an almost unheard of period, where parties are now waiting at least 18 months, and usually much longer, to get a final hearing date.
It is against this procedural background that the following evidence needs to be considered, especially the competing evidence of the parties regarding, among other things, the relationship of the children with the Father and any relevant risks to their relationship by remaining in Queensland with the Mother.
Evidence of Mr Langan
Summarised, the evidence of the Father was as follows.
At the outset of the hearing, Counsel for the Father observed that the Family Report of Ms E, in his view, was essentially “unhelpful”, and instead the Father would also rely on the earlier 2012 Report of Ms F.[11] What follows, unless otherwise specified, arose out of cross examination of the Father by the ICL.
[11] T 21.
The Father confirmed that, after the previous litigation and the Report of Ms F, he attended several parenting courses at G Family Services, but he did not (contrary to Ms F’s recommendation) undertake any counselling himself. In his view, the G Family Services courses provided him with sufficient “insight” into parenting matters such that personal counselling was not required or warranted. That said, he acknowledged that there was a difference between general parenting courses and specific counselling for an individual.
In his view, the Father said that the difficult communication issues between the parties that were around in 2013 remained pretty much the same in 2020. He said the communication “fluctuates”, depending on the issue involved. He said that, in his view, the Mother remained volatile and turbulent in her responses to him.
The Father denied that he consented to the Mother moving to Queensland with the girls. He denied saying anything that would have given the impression of any consent on his part. There followed a brief discussion of some emails, dated 22nd and 23rd May 2019, which are attached to the Father’s Affidavits, filed 4th November 2020, which set out the Father’s view about the relocation, which he said he first learnt about from one of the children.
The Father denied the Mother’s claim that his desire to have the girls live with him was motivated by its favourable impact on his current Child Support payments. Likewise, he denied the Mother’s claim that ongoing verbal abuse and harassment of her continues unabated to the present time.
The Father confirmed that his contentions about the care of the children by the Mother, prior to the move to Queensland, never caused him sufficient concern to warrant an Application to the Court. He also said that, prior to the Mother’s relocation, he had contemplated a move to a shared care/equal time arrangement for the children. Again, he did not make any Application to the Court in this regard. He confirmed that he regularly, if not invariably, found it very difficult to work with the Mother regarding matters involving the children. This included his concerns regarding the adequacy of the children’s lunches, over a period of time (approximately 6 months), and his engagement with the school regarding such matters. But again, it never reached a stage, he said, where he contemplated taking action in the Court.
In response to criticisms by the Mother regarding his sporadic and occasional involvement with the children’s schooling since the last proceeding in 2013, the Father was somewhat circumspect, as he often was in his evidence. This is also to note that the Father was generally a very cautious and somewhat guarded witness, seemingly very careful not to give too much away. As such, he was the complete antithesis of the Mother, whose volatile, sometimes histrionic, and regularly ebullient (often tinged with agitation) behaviour and responses left no doubt about her position or views. The Father often seemed, however, to be crafting his answer as if he were responding to a tricky or delicate question in a Senate Estimates Committee hearing – careful, cautious, giving as little away as possible, ever attentive to what would likely cause him the least amount of potential adverse comment, almost as if he was trying to paint the smallest possible target on his back. Put more succinctly, he was a less than spontaneous witness, and a tad too cautious to be able to get more, or better, detail about issues that would assist the Court. More on such matters later in these reasons.
The ICL asked the Father what he had done to try to improve the difficult communication between the parents, noting that the Father had not done the counselling recommended by Ms F in her 2012 Report. The Father’s considered response was that he always put everything in an email, and avoided telephone conversations with the Mother. He confirmed that this approach had not been as successful as it should have been. He also confirmed that, in my view somewhat surprisingly given the careful and studied parent he is (or claimed to be – I do not say this in any hypercritical way), he had never heard of a parenting App as a means of communication with the Mother until the ICL had suggested it a year or so earlier.
Next, the ICL took the Father to a range of emails in July 2020 regarding the children returning to Queensland after spending time with him.[12] The emails were copied to a wide range of people other than the parents including the ICL. The Father properly accepted that the communication was inappropriate, as was some other communication (not otherwise specified) with the Mother. At the same time, the Father said that he tries to keep communication with the Mother to “factual matters”, in part because (he said) he had difficulty in dealing with “non-factual things.” What he meant by such a catch-all description was not explored or otherwise explained.
[12] These emails are conveniently collected in the ICL’s Tender Bundle, p.156.
An interesting discussion then ensued regarding the children spending time with the Father during the school holidays. In substance, it was put to the Father that the Mother had offered him to have the girls for all of the school holidays. He had declined, saying that with only four weeks annual leave, he could not accommodate that offer of time with the girls.
Simply as an observation, as a long-time public servant, presumably the Father would have (and would have had) various options and degrees of flexibility available to him regarding leave that would have enabled him to spend extra time with the children, even if it was not the full amount of time being offered by the Mother. Further, given the regular, albeit implicit, criticism of the Mother regarding the risk of her [potentially] not fostering the girls’ relationship with the Father, this was another, specific instance, of the Mother again promoting the girls’ relationship with him.
The Father also said that he spoke directly to X, on a number of occasions, about the proposed move to Queensland. After initially saying that there were no specific conversations with the children, the Father then said that he told X that he did not agree with the move but that the parents were discussing what it might mean. He confirmed that in fact there would have been multiple conversations with the children about the move. He said that X was upset at the time because she did not know what it would be like to live in Queensland. He agreed that X (and presumably Y) would have benefitted from some therapeutic assistance at the time to deal with the proposed changes. He said that he did not canvass with the Mother any therapeutic option because he had lost hope that this could, or might, occur. It was not clear, or immediately apparent, whether the Father had in fact contemplated such assistance for the children at that time, though it seemed that he had only considered it when it was raised by the Court during the hearing.
The Father acknowledged that both children’s grades at school had improved since their move to Queensland. Such questions from the ICL were predicated upon documents produced under subpoena from the Queensland Education Department.
Regarding his proposal that he have sole parental responsibility, and communication with the Mother in the light of such an Order if granted, the Father said that a “new approach” to communication with her would be needed. He said that he would want to “work towards openly discussing parenting matters” with the Mother. He did not elaborate on what this “new approach” was or would look like. Nor did he address the apparent inconsistency between his earlier evidence of having “lost hope” of communicating with the Mother, on the one hand, and his now foreshadowed “new approach”, on the other. To be fair, he was not asked to explain the apparent dichotomy. He did say that he would seek to “take on board” the Mother’s opinions.
Fairly, the Father acknowledged that he thought the children would initially not cope well in coming into his primary care, but that he would get them support to make sure the transition worked satisfactorily. As noted earlier, the Father had no specific plan or details about what such support or assistance would look like. Some of the Father’s comments about obtaining such support sounded somewhat clichéd. He repeated that he would seek to engage more with the Mother. Given the history of discord in the co-parenting relationship, I took such comment to be rather aspirational.
The Father said that he accepted X’s point of view and consistently expressed wish to remain living with her Mother in Queensland. It was not put to him that if he accepted X’s view, his Order seeking that the children change residence from being with the Mother and to live primarily with him was inconsistent with that view. That said, he also acknowledged that some weight should be given to X’s view, but he did not elaborate how much weight should be given to it, or what then to do with it.
The Father said that the children were “adaptable”. In order to facilitate a transition into his care, he said that he would get them involved with other activities, including water skiing. There was no evidence to indicate that either of the girls had expressed any interest in this sport or activity. He said that he would “look to shape their experiences”, which clearly would not be exactly the same as in Queensland, and that he would “support them.”
When it was pointed out that such activities were not undertaken previously, the Father said that if he was granted sole parental responsibility he would be able to overcome the stalemate with the Mother that had previously occurred regarding “key decisions and choices.” When asked about the “extra things” he said he would involve the children in, the Father said that “family is a big thing and there would be interaction across both my family and Ms Langan’s family.” There would also be, he said, activities around school. Respectfully, accepting that some evidence must necessarily involve degrees of projection and contemplation of the unknown future, much of this discussion was again both somewhat clichéd, and featured the regular use of slogans. Detail and precision were not strong features of the Father’s evidence.
The Father was asked what he would do, for example, if after 6 months or so in his primary care the girls wanted to return to Queensland. He said he would firstly get “professional services” involved to help with the transition, and talk to the Mother about “supporting the transition”. He said that he would “keep working” until “we reach an impassable impasse.” He said he would engage “every resource appropriate to transition the children.” This did not actually or directly address the Court’s question about the circumstance where “the transition” was not working.
He was asked if he would consider returning the children to the Mother if that was their expressed wish. He said that he wanted what was best for the children. If that ultimately was their wish, the Father said that in such an “awful set of circumstances” he would have a discussion with the Mother and “potentially the Court.” Again, how such “discussions” could or would take place with either (or both) the Mother and the Court was not explained. The Father fairly said that he had not thought about what such an “end point” might look like but he had thought about the potential difficulties likely to be encountered in the early stages of a transition of the girls into his full-time care. Again, no details of those “thoughts” were provided.
In response to whether there might be a perception by the girls that the Father was putting his interests above their interests, if the Father agreed to the children returning to their Mother, the Father said that this “might be a possible reaction.” He said that he and the girls already have a strong relationship. He acknowledged that the Mother and his partner, Ms B, had a difficult relationship, and that there had been “verbal conflict” between them.
In response to some very wide-ranging questions from the self-represented Mother, a number of which were not permitted, or which had to be “revised and refined”, the Father commented as follows.
First, he confirmed that there had been a number of occasions where he could not have the children in his care as proposed or previously contemplated. One such time involved him going to a family, “non-child-based” “adult-specific”, wedding. He confirmed that the children did not know about the wedding, which was in Melbourne over Christmas. Given the Father’s earlier evidence regarding the range of family-related events to which he would take the girls, presumably this “non-child-based” “adult-specific” wedding, was an exception to this promise/proposal. Otherwise, the Father said that he did not agree with the Mother’s general proposition that there had been regular and/or significant occasions when he had not spent time with the children. He said that, if the girls came into his primary care, he would always ensure that consideration would be given to them being included and involved. The Father said that the children would always be “factored into” plans and commitments.[13]
[13] I need only note here that the Father’s partner, Ms B, has older, adult children, who live with her and Mr Langan.
The Father also confirmed that there had been occasions when he was away, playing in a band, when the children were formally in his care. On those occasions, the children stayed with Ms B.
The Father said that he and Y have a “close attachment”, and that his relationship with both girls is “very strong.” As already noted, the firm and clear confirmation by the Father of his good and close relationship with the girls, in my view, strongly undercuts his assertions and submissions of the risk to his relationship with them should they remain living with their Mother in Queensland. Plainly, there has been no diminution of his relationship with them, let alone any poisoning of it by the Mother, with the girls living with her in Queensland, and earlier with her at Town H, just outside the Australian Capital Territory (“ACT”). Likewise, a claim made by the Father in cross examination, that if the co-parenting relationship with the Mother was better, his relationship with the girls would be correspondingly better, is similarly without substance.
The Mother put to the Father that, given the children have lived primarily with her for the “last nine years”, did this not suggest that the Mother had facilitated the relationship of the girls with the Father. Notwithstanding this self-evident fact, curiously if not unfortunately, the Father would not concede that this was so. Rather, he said it was a function of the time he has spent with the children and nothing to do with the Mother. In my view, this was a remarkably poor assessment of the situation. The Father seemed incapable of recognising that the girls had been able to be shielded, primarily by the Mother (because they were in her primary care), from the toxic, alarmingly negative and combative relationship between their parents. The converse must follow: if the children had not been so protected (and in turn, their time with the Father relevantly not supported), it would inevitably have manifested itself in any number of adverse consequences for the children, including a negative impact on their relationship with the Father. But no such adverse impact on the children was claimed, or observed, by anyone – parent or expert.
The Father insisted that he was the victim, not the perpetrator, of abuse during the relationship. It was not disputed that there was a mutual Apprehended Violence Order amongst the police records produced under subpoena.
There was an extended discussion about certain flight details the Father had not provided to the Mother regarding the children returning from time with him in 2020. He said that he provided flight details such as the city from which the girls were flying, the time of the flight, and the time the children should arrive at the airport. The Father said, however, that he could not remember whether he gave the Mother the flight number. He was then advised by the Mother that she had asked X for the flight details, who said that she could not give them out without the Father’s permission. Some of this discussion devolved close to the theatre of the absurd! Ultimately, the Father agreed that he should have provided the flight details – in their entirety – to the Mother.
The Father asserted that this level of nit-picking with the Mother was not indicative of his communication with her generally. In the light of his earlier evidence about the need for a new approach in communicating with the Mother, there was plainly some inconsistency.
Next the Father was asked about his contribution to the children’s school fees. He confirmed that while he paid child support (which was up to date) he had not really contributed to school fees. He said that he had paid for various other expenses, usually sporting. He confirmed that since the children had been in Queensland, he had not paid anything other than child support.
The Father confirmed that the children had told him directly that they wanted to stay in Queensland. He said that X appeared to be motivated by her love of sports.
Initially, the Father said that he did not speak with the children about the Court proceedings. He acknowledged that they were aware of them, and if they had asked anything, he would have said that they should be allowed to run its course. Further, he said that when X had said that she wanted to remain in Queensland, he probably would have said something to her along the lines of “Mum and Dad will work this out through the Court.” When it was pointed out to him a certain inconsistency in his responses, on the one hand saying that he did not speak to the girls about the litigation, but on the other hand that he had spoken with X about the parents working things out with the Court, he maintained that he did not speak with X about “Court details.” Unfortunately, the Father’s evidence often had this level of opacity.
When the Father was again asked questions about his financial support for the children, this time in relation to their sports, the Father said that he was not aware that they did this activity until the girls had mentioned it to him recently. Accordingly, he confirmed that he did not contribute financially to this venture. He was aware, however, that his partner, Ms B, had written to the Mother saying that that the Father was not, and would not be, contributing to medical expenses.
As something of an aside, I simply note that the Father is a high ranking public servant, and his partner, Ms B, is a professional contracted to the Employer J. How and why financial matters were, apparently, somewhat or somehow stretched for the Father and his family was not clear or otherwise explained. Of course, it may simply have been the case that they made a decision not to provide financial assistance to the children while-ever they were, or remained, in Queensland. There was little comment by the Father to the Mother’s proposition that the children had regularly been playing sports (including taking lessons) since separation in 2012. He did acknowledge that one time he wanted to buy sports equipment for X for her birthday. A “curious” response, at least. The niggardliness that often manifests itself in family law litigation knows no boundaries.
The Father confirmed that even before any move to Queensland, if the Mother turned up to sports for example, Y would cling strongly to her Mother. In turn, this led the Father to confirm that his relationship with Y had regularly been challenging, and that he had been required to work “really hard” on it. He denied the Mother’s suggestion that she had facilitated the improvement in Y’s relationship with the Father. How he could reject out of hand rather than acknowledge, to some degree at least, such a clear proposition, was not apparent. All that he, and the Court, had to rely upon was the fact that his relationship with Y had improved and was now good (on the Father’s evidence and not challenged by the Mother), and that the children lived primarily with the Mother. It must follow that, at least, there was no opposition from the Mother to Y’s relationship with the Father, and ultimately in it flourishing.
To use an agricultural analogy, but which is supported at least since the time of Aristotle and biblical times, as well as by academic and professional writings more generally, regarding human relationships, something will only grow if it is nurtured and in “good soil.” In my view, whatever the discord (and worse) between the parents, very fortunately it has not adversely affected the children. Their relationship with both parents is plainly sound and meaningful. It must also follow that there is “good soil” in both households, whatever the sulphurous and hugely regrettable adult toxins from which the children have fortunately been quarantined. Not to see or appreciate this remarkable and fortunate dichotomy is either a function of wilful blindness, plain obduracy or astonishing lack of insight. Unfortunately, there were liberal doses of all these vices – on both sides to varying degrees – (not unusual of course in family law litigation) during the hearing and in the course of the litigation more generally.
To repeat: the context of the Father’s evidence (and the Mother’s evidence as well) was against the background of the following essentially undisputed matters:
(a)The children have lived primarily with their Mother for the last nine years;
(b)The children have a strong and meaningful relationship with both parents;
(c)The children have consistently expressed their views to remain living in Queensland with their Mother;
(d)The children have been doing significantly better in their schooling in Queensland;
(e)The children seem to have been relevantly quarantined from the toxic and regularly dysfunctional parental relationship, to the credit of both parents; and
(f)The Father and his partner work full-time; the Mother works part-time.
At the beginning of the second day of the hearing, the Court asked the Father to return to the witness box to answer some further questions, and to clarify some others.
First, he confirmed that, in his view, the document he signed regarding the children’s education records being able to go to Queensland was simply a procedural matter. He also confirmed that he was certain that he had not advised the Mother of him signing this document. In his view, that document did not require the assent or agreement of the Mother.
Secondly, contrary to the Mother’s evidence not below, the Father reported that there were no conversations between the parents regarding the Mother moving to Queensland prior to him sending the email of 19th May 2019 where he inquired whether the girls were moving to Queensland.
Thirdly, regarding the CIC Memorandum, the Father said:
(a)It was “curious and regrettable” that the Memo recorded that there was agreement between the parties regarding the Mother moving to (staying in) Queensland with the children;
(b)He recalled the Memo recording that there were positive changes in the girls following their move to Queensland;
(c)He recalled saying that Y is very attached to her Mother;
(d)He also recalled saying that going into the Conference, he was conscious of the impact of having the girls come back to Canberra, which was a “difficult decision”, which he spoke about “openly and honestly”. He said that it was a difficult decision for him to ask the children to come back to Canberra, and the Family Consultant reiterated (he said) that she had to canvass the issues and put forward a view regarding them;
(e)The Father said that he did not agree for the Mother and the girls to stay in Queensland but that he was happy to talk about what it would look like if they did. He maintained that he was misunderstood, and he was “open and transparent” about talking about what it would look like if they stayed in Queensland.
It was put to the Father that the evidence before the Court was that (a) Y would struggle if she was removed from her Mother’s primary care, (b) the Report of Ms E confirmed X’s view that she wished to remain living in Queensland, (c) the children have lived primarily with their Mother since separation, (d) the children were doing better at school in Queensland, and (e) the children have a good and close relationship with both parents. The Father responded by saying that the good relationship of the children with him was due to the regular and close proximity of the children to him. He said the converse was true, namely that his relationship with them would not continue if they stayed in Queensland, which would lead to absence of regular contact with him.
In the light of the above, and leaving to one side – again – that the evidence did not support, indeed it refuted, the Father’s contention regarding a diminution in the girls’ relationship with him if they stayed in Queensland, the Court asked him why it would be in the best interests of the children to change their primary residence. The Father said that, over “State boundaries” the co-parenting relationship with the Mother was not sustainable. It would also be difficult, he said, to be “part of the lives” of the children from so far away.
To these matters the Court observed that the Father had been involved in the lives of the children, and his good and meaningful relationship with them has been maintained, in the time that they have been living in Queensland. Moreover, the Court further noted that the co-parenting relationship has invariably been difficult since separation. In my view, the Father struggled to outline or to provide a coherent or reasonable answer why, in the light of the matters put to him, it was in the best interests of the children to return to Canberra.
Further, in my view, implausibly, and contrary to his own evidence, the Father said that if the girls came to live primarily with him, he would foster a better co-parenting relationship with the Mother, and bring different attitudes and approaches to his relationship with the Mother. He did not outline what these would be or how they would be implemented. The Father’s propositions in this regard were illogical and rather conditional. It necessarily posed the following perhaps “curious” question(s):
(a)why had he not pursued this (or these) different attitudes and approaches up to this point;
(b)how he would foster a better co-parenting relationship with the Mother in circumstances where it had been fractious for the last 9 years (he provided no relevant details);
(c)on the father’s evidence, these new attitudes, approaches and proposed better co-parenting relationship, were all predicated upon the children living with him – hence conditional on a change in residence of the children; and
(d)the Father was not asked what he would do if these “new and improved” attitudes did not bear fruit, and/or likewise if the co-parenting relationship with the Mother did not improve and actually declined in the light of the new attitudes and approaches that the Father brought to bear on matters.
The Father opined that while the children appeared to be happy and content in Queensland, there was nothing to suggest that they would not be equally as happy in the ACT with him. Should it need to be pointed out, among other things, to require the children to live with their Father would (a) remove them from their long-time primary carer (the Mother), and (b) be directly contrary to their consistently expressed views to remain living in Queensland.
The Father continued in his evidence to express concern about the likelihood of the Mother and her partner remaining together, thereby questioning the stability of the Mother’s household with the children. Leaving to one side that there was no evidence to support such a conjectural comment, to this the Court simply inquired why a similar caution or reservation could not, in principle, apply to the Father and his relationship with Ms B. Respectfully, such a comment by the Father about the Mother’s relationship with Mr K suggested a degree of desperation, or grasping at straws. It was an inappropriate comment.
The Father next raised a question or issue about the children being neglected (on a few occasions arising from what the girls were, or were not, provided for lunch at school a number of years ago) in the Mother’s care when they lived in NSW. To this, the Court questioned whether there was any evidence about any neglect since the relocation to Queensland. There was no such evidence or contention.
The Father acknowledged that the children appeared to be thriving in Queensland, but cautioned that this was dependent on the Mother and her partner remaining together. He accepted that there was no evidence about any likely change in the status of that relationship.
The Father said that he would provide the girls with a stable living environment, stable co-parenting that would “give them [the children] an opportunity to have the benefits of both parents working together.” When asked to explain how any such change would come about, the Father said that, up to the present, the co-parenting relationship was largely based on what the Mother wanted and allowed. He said that the Mother was manipulative regarding all things to do with the children, and that she consistently told lies. He said that if the children came to live with him, he would work “constructively and fairly”, and invite the Mother to participate in discussions and decision-making, but (it seemed) only if she came back to Canberra.[14]
[14] See, for example, the discussion at T 133.
When asked by his Counsel about certain comments in the CIC Memo, the Father said that there were two separate, or two parts, to the interviews. It seemed that one part of the interview was between the Mother and the Family Consultant, and the other with the Father, after the Mother had indicated that she would not be returning to the ACT. Discussions then turned to what arrangements might look like if the Mother and children remained in Queensland.
Finally, in this tranche of the Father’s evidence, he confirmed that he provided no flight number, or gate number, to the Mother regarding the children’s return flight to Brisbane on 20th July 2020. This was so unnecessary and inappropriate as to not require or need any comment. The Father was quite quick to blame the Mother for all of the co-parenting difficulties, but rather less transparent or acute to accept his own responsibilities or failings in this regard. He was quick however, as noted in these reasons, to explain inaccuracies, misunderstandings, and similar infelicities, as he saw them, which were drawn adverse to his interests, such as in the CIC Memo.
The ICL then asked the Father some rather interesting questions. They arose out of the Father confirming that he had sent X the ICL’s mobile number overnight. The ICL asked him, with an understandable degree of quiet verve, why he had done this. The Father responded by saying that he was concerned at some comments from the Mother the previous day about removing a pamphlet provided by the ICL to the children. He said that X confirmed to him that she had left this pamphlet in Canberra. The Father was surprised to hear that X had called the ICL on the second morning of the trial. Having provided X with the ICL’s mobile phone number, his surprise at her using it should not have come as a surprise to him at all. It appeared that the ICL was quite surprised to receive the call, especially and understandably during the final hearing.
In my view the Father’s actions in contacting the children during the trial was inappropriate. It immediately and necessarily embroiled the children directly in matters that were the subject of contest and evidence during the hearing. It appeared to be quite a potentially manipulative action taken by the Father. I suspect that it was more a case of poor judgment on his part rather than being deceitful; motivated more by desperation than malign – but certainly imprudent.
The ICL confirmed to the Father that X had reiterated the view of both girls to remain living in Queensland with their Mother. In the light of this late-breaking news, leave was granted for the Father to speak with his Counsel. Upon his return to the Court room, there was no indication of any change in the Father’s position, notwithstanding the immediately expressed views of the girls to the ICL.
Against this background, at the end of the Father’s evidence, I remained uncertain on what basis the Father thought it would be in the best interests of the children to be removed from their Mother and placed in his primary care. In no hyper-critical way, and having proper regard to the outline of principle by the High Court in Fox v Percy, regarding the views and observations of trial Judges, respectfully, I found the Father to be a less than impressive witness.[15] As earlier observed, he seemed regularly more concerned to give what he perceived to be “correct” answers rather than provide a more spontaneous, or clearly child-focussed, response. The Father’s comments in the witness box were often in rather generalised and sloganized terms. His answers often did not give detail that a Court could and should have reasonably expected in circumstances where the Father, as the Applicant, had presumably thought through what might be described as his “game-plan”. Likewise, it was not clear that he had paid requisite attention to the necessary evidence he would need to convince the Court that changing the primary residence of the girls was in their best interests. Unfortunately, there was no clear or even apparent “game-plan.”
[15] Fox v Percy (2003) 214 CLR 118.
Rather more critically, his answers and responses often did not focus or show insight, and or knowledge, of each individual child. In my view, the Father’s evidence was overly cautious, and more “parent-focussed” than “child-focussed.” By this I mean that the benefit to the Father spending more time with the children seemed more to the forefront of his thinking, or how to cope with the Mother in their co-parenting game of chess (move and counter-move), than being able to articulate why it was in the girls’ best interests to change their long-term primary residence from that of their Mother to him. Obviously in a different context, the basal principle remains, as the Full Court, in Mulvany v Lane, at [89] (May and Thackray JJ; Finn J agreeing at [12] – [13]) (emphasis in original):[16]
The question that truly arises from s.60CC(2)(a) is not “What outcome will best ensure that S has a meaningful relationship with his mother”, but rather, “What is the benefit to the child of having a meaningful relationship with his mother?”.
[16] Mulvany v Lane (2009) 41 Fam LR 418. The Full Court decision in Sigley v Evor (2011) 44 Fam LR 439 at [136] and the cases there cited was to similar effect in relation to the statutory focus to be on “the benefit to the child”.
Applied here, the basal principle of the “benefit to the child”, is relevant to determining whether to change the primary residence of the girls. This is in circumstances where the most regular comment by the Father was that he sought the girls to change residence to live with him because he was concerned about his relationship with them if they stayed with their Mother. Yet he confirmed consistently that his relationship with the children was good and solid.
As stated above, given how strong this relationship is, and how long the children have lived primarily with the Mother, in my view it was untenable for the Father to argue that there was some relevant risk, which had not materialised over the last nine years, regardless of whatever State in which the Mother and the children lived. Such an argument would require the Court, unfathomably in my view, to find that the Mother would [now] start to undermine the children’s relationship with the Father. She has had nine years to undermine it, but this has just not occurred. Even in the last almost two years since the Mother and the girls have been living in Queensland, the Mother has had ample opportunity to erode or corrupt the children’s relationship with the Father. It simply has not occurred. If this was the cornerstone of the Father’s case, as it seemed to be, and the ICL’s case also, given the other matters summarised above, one might form a view that the Father’s Orders sought were more about him than the children.
In my view, the primary reason or argument for changing the girls’ primary residence was not relevantly made out. The evidence to make such a radical change to the lives of the girls was not only unsupportive of the Father’s case, but it firmly contra-indicated any such change. Further and significantly, why such a move was in the children’s best interests was not able to be relevantly articulated by the Father. Any putative risks to the children changing their long-time residence were not, in my view, properly addressed or properly considered by the Father, other than in the most generalised terms. Such risks that were articulated by the Father (e.g. the stability and longevity of the Mother’s relationship with her partner) were necessarily speculative and hypothetical. And as noted already, the evidence pointed very strongly and clearly in the direction opposite to where the Father wished to lead the Court.
I accept that the Father was, and remains, unhappy about the Mother’s move with the children to Queensland. I accept that there are clear comments to this effect in correspondence, including that he did not agree with or consent to such a move. On the other hand, there is also not insignificant evidence (discussed further below) that accords with the Mother’s evidence (including the CIC Memo of Ms C) concerning the Father agreeing with her move to Queensland with the girls.
Evidence of Ms B
Ms B is the Father’s de facto partner. They have been together since late 2012. There is no dispute that she has had regular dealings and engagement with the children, and with the Mother, since that time.
It is no criticism of Ms B to record that her evidence, in my view, added little to the matters to be determined by the Court. Ms B confirmed that the Father and the children have a good and close relationship. Likewise, she confirmed that she has a good relationship with the children. All adults agree that Ms B and the Mother have a very strained relationship. This included her observing that the Mother was “the most selfish person she had ever met.” Ms B acknowledged that on certain occasions, her correspondence and or engagement with the Mother had not been helpful. I do not see that it assists to elaborate on any of these details.
Ms B said that she does not discuss matters involving the Mother with the children when they are in the care of the Father. She concurred with the general evidence that the parents have a poor co-parenting relationship, and that communication between them is difficult.
Ms B’s evidence was fair and balanced. Curiously, she said that she was unaware that X had consistently expressed a view to remain living with her Mother in Queensland. How and why Ms B was not aware of this was not explored or explained.
Evidence of Ms Langan
This summary of principle must, of course, be understood in the context of the ‘prescribed legislative pathway’ or scaffold in Part VII of the Act, to which I have already referred. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
To this instruction, I note the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours said, at [60]:[39]
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
[39] McCall v Clark (2009) 41 Fam LR 483. See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
I draw attention also to the comments of the Full Court in Blanding, which involved a parent seeking to relocate and who was permitted to do so.[40]
[40] Blanding v Blanding (2017) 55 Fam LR 218.
In the course of considering at some length the grounds of appeal, the plurality (Ainslie-Wallace and Berman JJ – with whom Finn J generally agreed) said, at [141] – [142]:[41]
[141] There was thus ample evidence on which his Honour could conclude that the mother’s happiness in not relocating would not only affect her but also the children. We do not then accept the submission that this was a factor of no relevance to his Honour’s determination.
[142] This ground devolves to an argument that his Honour apportioned disproportionate weight to this matter against the other countervailing considerations. As his Honour’s reasons make clear, this was not the sole basis for his determination that the order sought by the mother should be made. However, in his view, it was the most important. The weight or importance to be placed on evidence is a matter exquisitely within the preserve of the trial judge and we are not satisfied that in giving it the weight he did, his Honour erred.
[41] See also the Full Court’s comments at [148] regarding issues of “weight” given by the trial Judge to certain evidence. The Court there said that such matters were “entirely a matter for his discretion.”
The Court then said, at [153] and [159] – [160]:
[153] It was contended that his Honour should have “indicated what weight he places on their views and why”. We reject this submission, which carries with it the suggestion that a judge, in considering a range of issues as part of the exercise of a wider discretion in relation to the best interests of children, is in some way required to indicate “weight”. Such a submission misstates the very nature of the weighing process. His Honour clearly rejected the concern that the father had influenced the children directly but was open to the proposition that being aware of his opposition may have an influence on their views. In our view nothing further was warranted nor needed to be said.
…
[159] His Honour carefully and clearly considered the father’s desire to remain a part of the children’s lives. He was conscious of the additional time spent by the father by being involved with the children’s after school activities. His Honour found that the children had a close and normal relationship with the father and the mother [20]. He further took into account that a move to the Central Coast will change the children’s circumstances and that they will see less of their father than before [25].
[160] His Honour referred to and took into account the difficulty and expense of the father spending time with and communicating with the children at [26]. He noted that while it would not prevent them from communicating, it would be more difficult and expensive [27]. His Honour further considered these issues when determining the advantages and disadvantages of the parties’ proposals [44(a)] to [44(e)].
Finally, at [166], the Court said:
In any event, the apportionment of weight or importance to evidence is a matter for the exercise of the trial judge’s discretion. As we have already said, the bar to appellate intervention in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
Consideration & disposition
I turn to the detail of the legislative scaffold in Part VII of the Act, and s.60CC(3) in particular, in the light of the evidence before the Court. In the quite brief summary below, I follow each of the “considerations” sequentially, unless otherwise specified, and each comment or observation, also unless otherwise specified, should be taken as a formal “finding” by the Court. There were some considerations that were, self-evidently, not relevant.[42]
[42] See s.60CC(3)(h).
Given the ages (especially 13 year old X), the consistency of their comments, the reasons given by them (including how much better at school they are doing, and X’s sporting preference that is more readily accommodated in Queensland), and the long-time primary care of the Mother, the views of the girls should be given quite significant weight. I note that Y has not formally been recorded as expressing her views, save that, for example, in X’s communication with the ICL, she confirmed that Y shared the same views as her older sister to remain living with their Mother in Queensland.
It is perhaps significant to note also that, apart from the Mother’s written submissions at pars.21 – 24, there was no discussion or consideration by anyone of the impact upon the girls if directed to live in Canberra with the Father, but the Mother (as she confirmed on a number of occasions) remained living in Queensland. Given the closeness of the girls to the Mother, this would very likely add to the grief and depth of difficulty in the adjustment of the girls living for the first time since separation primarily with their Father.
Three decisions are particularly noteworthy here.
In Bondelmonte v Bondelmonte, the High Court made some general observations regarding the views of children under the Act.[43] At [34] – [35], the High Court said:
The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child's siblings. Section 60CC requires that attention be given by the court to these matters.
[43] Bondelmonte v Bondelmonte (2017) 259 CLR 662.
Then at [43], the Court said (internal citations omitted):
Section 60CC(3)(a), whether or not read in conjunction with the other provisions in Pt VII, neither expressly nor impliedly requires the court to seek the views of a child. It requires that the views which have been "expressed" by a child be considered. The term "consider" imports an obligation to give proper, genuine and realistic consideration but this cannot affect or alter the terms of the provision so as to require a child's views to be ascertained.
Secondly, in R v R, the Full Court said, at 724:[44]
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case. It is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
[44] R v R (2000) 155 FLR 29; (2000) 25 Fam LR 712.
Thirdly, in In the Marriage of Radford & Alpe, the Full Court noted, and accepted, that one of the matters properly taken into account by the trial Judge was the risk of making a decision and imposing upon the children in question a decision that was contrary to their wishes. [45] The Full Court further noted the trial Judge’s comments regarding the likely [adverse] impact upon the children’s relationship with their parents in such an eventuality. The Full Court noted, ultimately with approval, the trial Judge’s comments, at 139:
For instance, are they [the children] likely to be resentful and if so will this resentment put between them and their Father a barrier even more difficult to surmount than that caused by them living in another country?
[45] In the Marriage of Radford & Alpe (1985) 10 Fam LR 135.
In my view, insufficient weight has been given to the views of the girls both in the Report of Ms E, and in the submissions filed – except those of the Mother. Nor has sufficient (if any relevant) attention been given to the risks to the girls if a decision was taken adverse to their long-held, and consistently expressed, views, as referred to in the Full Court decision in Radford & Alpe. This dimension was not properly addressed by anyone, except the Mother, particularly in the light of the Mother shielding the girls from her intention to remain living in Queensland should the children be ordered to lie with their Father. It would seem on all the evidence, and in the light of the authorities noted, that the risks of resentment towards the Father from the girls, and likely much else besides, are considerable.
There is no question that the children have a good and close relationship with both parents. Y remains perhaps, according to the evidence, more dependent upon her Mother.
In relation to the matters embraced by the “considerations” in sub-paragraphs (c), (ca) and (i) of s.60CC(3), in my view the evidence strongly indicates that:
(a)The children have little difficulty communicating with both parents. By virtue of geography and circumstance, clearly they communicate most directly and regularly with the Mother;
(b)The bitterness and toxicity in the parental relationship seems to wax and wane. However, it is regularly volatile and fractious. The communication between the parents, is variable – to put it at its highest;
(c)The Father insists that he is keen and available, up to a point, to see and communicate with the children. On the Mother’s evidence, she is both better placed (having done it for the better part of 9 years) to make decisions about matters relating to the girls, and because (she says) the Father regularly says one thing but changes his mind;
(d)I have no doubt that both parents want the best for the girls. However, in my view, the Father’s guardedness and full-time work (and Ms B, likewise on the work front), which takes a priority for understandable reasons, make it even more difficult – even when the parties lived in much closer proximity – for much co-operation about decision-making for the girls.
The matters embraced by s.60CC(3)(d) and (e) are of signal importance in the current matter. Although recorded many times already earlier in these reasons, by way of summary and for ease of reference, I repeat the following:
(a)As the ICL made plain, and noted above, notwithstanding the terrible co-parenting relationship between the parents, the children “appear to be remarkably unaffected and retain a close and loving relationship with each parent. This is to the credit of the Mother ….” Such clear evidence completely under-cuts the submissions by the Father, and other submissions by the ICL (and the evidence of the Family Consultant, Ms E), of the potential “risk” to the Father/daughter relationships if the girls remained living with the Mother in Queensland;
(b)The Mother has been the children’s primary carer for a significant number of years. The parties separated in 2012. There were earlier proceedings in this Court that concluded in 2013. The Orders then made provided for the parents to have equal shared parental responsibility, and for a gradual increase in the Father’s time, moving to unsupervised day-time in in July 2013, leading to overnight time commencing with the Father in September 2014;
(c)The Father confirmed in his trial Affidavit, filed 4th November 2020 (par.7) that the 2013 Orders continued to operate until mid-July 2019. Those Orders provided for the children to spend time with the Father each alternate weekend, one overnight (Wednesday) in the off-week, and half of school holidays. Compared to the current regime, a change in the residence of the children and to be placed in the Father’s primary care would, on any view, be a very significant, if not a radical, change in the live with and care arrangements for the children;
(d)The closeness of the relationship between the girls and their Mother was noted in the earlier Family Report of Ms F (used in the earlier proceedings where there was a highly contested claim by the Mother against the Father regarding alleged grooming of X by the Father; Ms F confirmed, at p.29, that “there was no indication that Mr Langan presents any risk to the children”). At p.28 of that Report (Exhibit B in the current proceeding), Ms F referred to, among other things, X being able to manage (in principle) overnight time with her Father but “this would not, at this stage, be in her best interests while the relationship between Mr Langan and Ms Langan [Ms Langan] remain highly conflictual …” Ms F also said that it would be preferable for Y and X not to be separated overnight;
(e)Accepting the age of the 2012 Report, and notably the much younger ages of the children at the time, Ms F also recommended (p.29) that Mr Langan attend a parenting program to further strengthen his capacities. She noted too that both parents “have appropriate attitudes to the children and to their responsibilities of parenthood.” She continued: “However, there are current serious difficulties in relation to their attitudes to each other, and this has had significant implications for the children’s time with their Father since he left the marital relationship.” As well as recommending that X and her parents engage in therapeutic counselling, Ms F also recommended (at p.31) that the Mother engage a psychologist “to address and manage her anxiety about her daughters’ relationship with their Father”;
(f)With only little qualification amidst the particular turmoil of the contest between the parents, especially during the trial, the consistent view of the children (noting in particular X’s age and her communication on Y’s behalf) has been to remain living with their Mother in Queensland. This included a very recent discussion (actually and surprisingly, during the trial) between X and the ICL, the notes of which became Exhibit E, confirming the united views of the children to remain living in Queensland. Indeed, during the trial, after the Father had curiously provided X with the mobile phone number of the ICL, both girls confirmed to the ICL (via the discussion between the ICL and X) their wish to remain living in Queensland with their Mother;
(g)It seemed not to be disputed that, academically and otherwise, the children were doing better at school in Queensland than they had been in the ACT;
(h)Somewhat concerningly, there was significant lack of attention in submissions to the risks to the children changing residence from their long-time primary carer, and contrary to their clearly expressed views. Such focus as there was on a change in the girls’ primary residence related to them having lived for a significant part of their lives in Canberra, and that they had kept up relationships with friends in Canberra via social media and regular visits. Otherwise there was little or no “risk assessment”, so to speak, about the reaction and impact on the girls of a change in their primary residence;
(i)In relation to a change in residence, the Father’s evidence about how he would deal with adjustment issues for the girls was, in my view, rather clichéd, and lacking in detail and insight. In seeking a change in residence, I would have expected the Father to have some basic information to provide to the Court about what precisely he would do to support the girls, such as the inquiries he had made with counsellors, and/or the possible or likely schools they would attend, and the support there available. This is not to deny that the Father loves the children, or that he would not do whatever was necessary. Rather, there was lacking basic detail about how he would “manage” the emotional and other possible (or likely) risks to the girls’ being forced to live with him and leaving their Mother, as already recorded, directly contrary to their clear wishes. The likely or potential import of such a radical change in the girls’ living arrangements seemed to be treated as more an exercise of “management”, as opposed to having clear knowledge and insight into the character, personality, likely needs and responses, and all else, about each of his daughters. This is especially so in circumstances where the Father acknowledged in his oral evidence that Y was regularly “challenging” in her relationship with him, which had been the case since he formerly spent supervised time with the girls a number of years ago;
(j)Finally, matters of “geography” and the flow-on expenses associated with travel are a critical consideration. This obvious and important factor and reality, of the Mother and the girls living in Queensland, and the Father and his partner living in the ACT, is a matter both of logistics, economics, and much else besides. This includes the mental health and well-being of the Mother as the children’s primary carer.
The cost, in time, energy and finances, for both parties but most especially for the Father, are very important matters for the Court to weigh. In terms of the “considerations” in s.60CC(3) (e), clearly there are very significant practical difficulties and expenses in the children spending time with their Father. For all of this, it remains undisputed (and oft-repeated in these reasons) – fortunately so for all concerned but most crucially the children – that the children have a good and close relationship with both parents. The extended period the girls have lived in Queensland with their Mother has not, on any evidence provided to the Court, adversely affected their relationships with the Father, which remains sound.
Both parents, in different ways, are able to provide for the relevant needs of the girls.[46] There was no suggestion that there were any relevant deficits in this regard, accepting that there were criticisms, mostly of the Mother, in providing the girls with the support needed in their relationship with the Father. As noted a number of times already, it was not disputed that the girls were doing academically better in Queensland – acknowledged by the girls themselves – than they were in the ACT.
[46] See s.60CC(3)(f).
There were no matters arising under s.60CC(3)(g) that were, in my view, of any significance.
Matters pertaining to “family violence”, as noted above and in earlier Reports before the Court (notably by Ms F), related to historical events (e.g. allegations against the Father from many years ago; mutual Domestic Violence Order). In the light of more recent evidence, I do not need to canvass these items any further.
In my view, the Orders of the Court today will give the parties, and most importantly, the girls, the certainty everyone needs “to move on.” They will provide a strong basis for the future and will (or should) minimise the risk of further litigation.
Parental responsibility
The final matter to consider relates to parental responsibility. The evidence plainly shows that the parties have a deeply discordant relationship with, very regularly, very poor communication. Because of the geographical distance between the parties, and the girls living full-time with the Mother, primarily because of its practical advantages, in relation to health and education, she shall have sole parental responsibility. However, absent cases of emergency, the Mother is to consult with the Father over matters concerning the health and education of the girls prior to making a final decision. In relation to all other major long-term issues, parental responsibility shall be shared.
For completeness, should it be necessary again to state the obvious, the geographical distance between the parties obviates against the need to consider an equal time arrangement, or one that otherwise comes within the ambit of s.65DAA of the Act regarding substantial and significant time.
Conclusion
In Morgan v Miles, the Full Court confirmed that, absent cases of emergency, it was desirable that matters involving relocation should be determined at a final hearing.[47] This has now occurred, accepting that there were some procedural anomalies along the way.
[47] Morgan v Miles (2007) 312 FLR 114; (2008) 38 Fam LR 275 at [72] – [88].
At [91] in Morgan v Miles, Boland J said (emphasis added):
The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
The italicised remarks of Boland J, in my view, clearly and properly apply to the circumstances here, with the girls having lived with their Mother since separation for the last 9 years, and where (as all the evidence confirmed at trial) the girls enjoy a good, close and meaningful relationship with their Father. This relationship has not been impaired over the now not insignificant time the children have lived in Queensland – since July 2019. Curiously, and somewhat unfortunately, no one mentioned this long-standing and critical Full Court authority of Morgan v Miles.
The Father sought some form of “accountability” from the Mother for her unilateral move to Queensland. Strictly speaking, “accountability” is not a “consideration” under Part VII of the Act. Subtly, the Father seemed to want to elevate accountability for a unilateral relocation to some form of retribution or punitive justice. The matters the Father sought to raise against the Mother were properly subsumed under other considerations in s.60CC(3), relating to things like communication and the co-parenting relationship.
A critical aspect of the “accountability” so earnestly sought by the Father related also to any potential or actual undermining of the girls’ relationship with him. As noted a number of times earlier in these reasons, the Mother has clearly not undermined the Father-daughter relationships. Those relationships remain strong and meaningful. The risk feared by the Father to his relationship with the girls has simply never eventuated, including since their move to Queensland.
In Taylor v Barker, the majority (Bryant CJ and Finn J) said, at [109], that “happiness is a state of mind to be inferred from evidence.”[48] At [113], after referring to the facts of the matter in that case as being “finely balanced”, their Honours said that in “such a case one factor will usually become decisive.” Here, leaving to one side the times of high emotion and volatility, the Mother’s evidence consistently attested to her constant frustration and frequent anguish in dealing with the Father, especially with his regular change of mind (on her evidence). In my view, my assessment of the Father’s language was that he was regularly quite “fluid” in his expression, thereby giving himself some “wriggle-room” so as not to be completely locked in to any particular position. This was particularly evident in his comments to the Family Consultant at the CIC interviews and his explanations to the Family Consultant regarding consideration of options, and his later clarifications to the Court of what he actually meant. None of these comments are intended to be overly critical of the Father, still less to suggest any sleight of hand on his part.
[48] Taylor v Barker (2008) 37 Fam LR 461.
The Mother also confirmed her firm desire to move away from the cold of the ACT, and to live with her partner in Queensland. She confirmed (which I accept) how much better she feels, and how much better the children are doing, living in the warmer climes of Queensland. While perhaps not as finely balanced as the facts in Taylor v Barker, in my view, the “happiness” of the Mother was and remains an important factor in the Court’s decision here in accordance with the principles outlined by the Full Court. All of this said, it remains the Court’s focus to make Orders that are in the best interests of the children.
Curiously too, and unfortunately, no one – except the self-represented Mother – referred to the Full Court decision of Taylor v Barker.
I recall again the important, and Full Court endorsed, comments by Kay J in Godfrey v Sanders, at [36], where his Honour said (emphasis added):[49]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[49] Godfrey v Sanders (2007) 208 FLR 287.
To be terribly repetitious, the girls have a close and meaningful relationship with their Father. It remains meaningful and close notwithstanding the geography between the ACT and Queensland. While not necessarily optimal, certainly from the Father’s perspective, it is nonetheless meaningful from all sides. The evidence is unequivocal in this regard. This is precisely what the Act requires – a meaningful relationship.
With one addition, the Orders proposed by the Mother are, in my view, plainly and properly in the best interests of X and Y. To ensure there can be no doubt (as intimated by the Mother in her evidence, regarding the silence of the previous Orders on the subject), the additional Order is that unless for the purposes of returning the live in the ACT, the Mother is restrained from changing the residence of the girls from their current residence in Queensland without the prior written consent of the Father, or Order of the Court.
In sum: the evidence, especially the views of the girls (Y’s views expressed by her sister X), and their ongoing meaningful relationship with the Father, strongly supports the Orders sought by the Mother. The principles of law, set out above, also strongly support the Mother’s position, and do not support the Father’s. This is in circumstances where a number of directly relevant Full Court decisions were not [obviously] considered by him. None of this is a criticism of the Father seeking to have the girls live with him on a full time basis, for the first time since the parents separated 9 years ago. However, pursuing the Orders that he did, showed a certain naiveté (at least, but perhaps more), and importantly showed a certain lack of awareness and sensitivity towards his daughters’ strongly held, and firmly expressed, views. He likewise showed a degree of lack of insight in comprehending the risk he and the girls could run by forcing them to live with him after having lived for so long with their Mother and expressing a firm view to remain living with her.
Further, the risk the Father feared (and fears) – of a diminution of the girls’ relationship with him – has never materialised. The meaningful relationship between the girls and the Father remains firm, meaningful and undiminished. To move the girls against their strong views could very likely jeopardise this relationship.
To repeat: the Orders made by the Court are in the best interests of X and Y.
I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 7 May 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Costs
-
Appeal
0
14
0