LASMAN & LASMAN
[2013] FamCA 593
•14 August 2013
FAMILY COURT OF AUSTRALIA
| LASMAN & LASMAN | [2013] FamCA 593 |
| FAMILY LAW – CHILDREN – Relocation – Application by the mother to relocate overseas – mother has been the primary carer – children have an attachment to and relationship with each parent and with paternal and maternal grandparents – mental health – whether the mother’s parenting ability and capacity is impacted if she were to remain in Australia – where the mother will comply with parenting orders if she were to relocate – children shall live with the mother. FAMILY LAW – PROPERTY – Application by the mother for property orders – insufficient evidence – further directions required. |
| Family Law Act 1975 (Cth), ss 4, 61B, 61DA, 65DAA, 79(4), 75(2) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), s2 and Schedule 1, s 45. |
| Bevan & Bevan [2013] FamCAFC 116 MRR v GR (2010) 240 CLR 461 Muldoon & Carlyle (2012) FLC 93-513 Sayer & Radcliffe and Anor [2012] FamCAFC 209 Stanford & Stanford (2012) 293 ALR 70 |
| APPLICANT: | Ms Lasman |
| RESPONDENT: | Mr Lasman |
| FILE NUMBER: | CAC | 1966 | of | 2010 |
| DATE DELIVERED: | 14 August 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 8-10 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maurice |
| SOLICITOR FOR THE APPLICANT: | Dobinson Davey Clifford Simpson |
| COUNSEL FOR THE RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE RESPONDENT: | Tuggeranong Legal |
Orders
All previous parenting orders are discharged.
The children, N (born … 2004) and X (born … 2008) live with the mother and the mother be at liberty to change the children’s place of residence to Town S in Sweden.
Immediately upon the mother and the children relocating and changing residence, the mother shall notify the father both orally and in writing of the new address of the residence of the mother and children in Sweden, together with all other relevant contact details including telephone, facsimile, email, mobile phone and Skype.
The mother will notify the father of any changes to those details within 24 hours of such change.
The mother and the father have equal shared parental responsibility for the children, save that:
(a)The mother will have sole parental responsibility for decisions relating to the children’s schooling, on the condition that the mother advise the father and keep him advised of the particulars of the children’s enrolment at school and general progress.
On the basis that the father remains in Australia, the father will spend time with the children as follows:
(a)In Australia, on one occasion every two years for not less than 21 days on each such occasion, to include Christmas day, with the mother travelling to and from Australia with the children and the mother bearing the costs of the children’s air travel to and from Sweden on each such occasion.
(b)In Sweden, as agreed between the parties and on condition that the father be responsible for his travel costs to and from Sweden and all other costs for the purposes of spending time with the children. It is noted that on these occasions, the paternal grandmother may accompany the father and also spend time with the children in Sweden.
(c)By Skype communications, Facetime or telephone each Monday, Wednesday and Sunday or such other days as agreed, between 4pm and 6:30pm Swedish time, with each party required to establish and maintain a working telephone, internet and Facetime service and advise each other and keep each other advised of the relevant telephone numbers and email addresses for the purposes of this communication.
(d)If the children are unable to be at home to receive the communication from the father in accordance with Order 6(c), the mother advise the father of their unavailability, if known before hand, as soon as practicable and an alternate date be provided and facilitated by the mother.
(e)On such further or other occasions as may be agreed between the parties.
The mother provide to the father by ordinary postal service or by scanned email communication, copies of each of the children’s school reports within 72 hours of receipt of such by her.
The mother provide to the father a copy of the order form for the children’s individual and classroom annual school photographs, as applicable, within 72 hours of receipt of the form by the mother.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
The parenting matter is removed from the pending cases list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lasman & Lasman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1966 of 2010
| Ms Lasman |
Applicant
And
| Mr Lasman |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a matter which relates to where the children, N (born in 2004) and X (born in 2008), will live. That is not only with which parent they will live or with whom they will spend time, but in which country they will live.
The parties are also in dispute about property matters, but their evidence and submissions about that matter are not, at this point, finalised.
The hearing of this matter was somewhat complicated by the fact that during the final stages of final submissions the father changed the position that he maintained throughout the hearing, which was that the mother should remain in Australia and the children should live primarily with the mother. His final orders sought in the final stages of the final submissions were that the children should stay in Australia and live primarily with him.
The mother sought that the children would live primarily with her and she would live with them in Sweden. That proposal was further complicated by the fact that during the course of the proceedings, the single expert witness sought permissions to re-assess the mother’s mental health in the light of additional evidence that had arisen and then gave a different opinion about the mother’s ability to cope if she were to remain in Australia.
These issues are examined at some length during the course of my reasons for judgment.
Applications of the parties
The mother’s primary application in relation to parenting orders was based on her being permitted to relocate to Sweden. She sought alternative orders depending on whether the father lives in Australia or Sweden.
The final parenting orders sought by the mother are set out in a document titled Final Orders Sought by the Applicant Mother:[1]
[1] Filed 19 April 2013.
a) The children live with the mother and the mother be at liberty to change the children’s place of residence to [Town S] in Sweden.
b) The parents have equal shared parental responsibility, except in relation to the children’s school for which the mother will have sole parental responsibility. The mother will have this sole parental responsibility on the condition that she advises and keeps the father advised of particulars of the children’s enrolment and general progress at school.
c) If the father lives in Australia and the children live in Sweden, the father spend time with the children as follows:
In Australia on one occasion every two years for not less than 21 days. Each such occasion to include Christmas Day. The mother will travel to and from Australia with the children and the mother will bear the costs of the children’s air travel to and from Sweden on such occasion.
In Sweden, as agreed between the parties and on condition that the father be responsible for his travel costs and from Sweden and all other costs for the purposes of spending time with the children.
By Skype communications, Facetime or telephone each Monday, Wednesday and Sunday or such other days as agreed, between 4pm and 6:30pm, Swedish time.
In the event the children are unable to be at home to receive the communication from the father, the mother shall advise the father of their unavailability, if known before hand, as soon as practicable and an alternate date be provided and facilitated by the mother.
Such further or other occasions as may be agreed between the parties.
d) If the father lives in Sweden and the mother and children live in children, the children live with the mother and spend time with the father:
i) Every second weekend from after school on Friday until commencement of school on Tuesday.
ii) For half of each term and long summer school holiday period
iii) By telephone each Tuesday, Thursday and Saturday between 5:30pm and 6:30pm
e) The mother shall provide the father copies of the children’s school reports, copies of the order form for the children’s school photographs.
f) In the alternative, if the mother is not permitted to relocate to Sweden with the children, the children live with the mother and:
i) Parents have equal shared parental responsibility.
ii) Children shall spend time with the father as set out in paragraph 2(d) above.
In relation to property orders, the mother sought that orders the Court considers appropriate and the mother be excused from particularising the Orders she seeks until discovery has occurred.
In support of her application, the mother relied upon her affidavits filed 30 May 2012, 21 December 2012 and 19 April 2013 and her Financial Statement. She also relied upon affidavits from the maternal grandfather and maternal grandmother, both filed 19 April 2013.
The father filed an Amended Response to Initiating Application on 19 April 2013. At the commencement of trial, he sought the orders set out in that document. The Amended Response sought orders in the alternative:
a)If the mother were not permitted to move the children’s place of residence to Sweden:
i)The parents have equal shared parental responsibility.
ii)The children live with the father.
iii)The children spend time with the mother every second weekend, every Wednesday from after school until the commencement of school on Thursday, and for half the school holidays.
b)If the mother were permitted to move to Sweden with the children:
i)Immediately upon the mother and the children relocating and changing residence, the mother shall notify the father both verbally and in writing of the new address of the residence of the mother and children in Sweden, together with all other relevant contact details.
ii)The mother shall notify the father of any change to those details within 24 hours of such change.
iii)The children spend time with him in Australia every year for not less than six weeks, including Christmas Day.
iv)The children spend time with the father in Sweden on condition that he gives the mother 21 days’ notice, for a period of 21 days at least.
v)By Skype, every second day starting from the first Monday in [Town S].
On 9 May 2013, the second day of trial, the father handed up a Minute of Orders Sought and the orders set out in that document were very different from the orders set out in the Amended Response filed 19 April 2013. The Minute of Orders handed up in Court on 9 May 2013 sought that the mother’s application to relocate be dismissed, that the children live with the mother and spend time with the father every alternate weekend and for half the school holidays. The trial was, from the second day, conducted on the basis that the father was seeking orders for the children to live primarily with the mother and to spend time with him.
On the last day of trial, at the end of counsel for the father’s submissions, counsel for the father indicated that the father changed his application yet again and reverted to seeking the orders set out in his Amended Response filed on 19 April 2013.
Although the majority of the trial was conducted on the basis that the father sought for the children to live in Australia primarily with the mother and spend time with him, I must “consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway”.[2] The father’s proposal as at the end of the trial was that set out in his Amended Response filed on 19 April 2013. I therefore base my judgment and reasons therefor on the basis of that proposal and the mother’s proposal set out in her Final Orders Sought, set out above. The orders sought in the father’s Amended Response are set out in full at Annexure A to these reasons.
[2] Sayer & Radcliffe & Anor [2012] FamCAFC 209, [48].
In support of his application, the father relied upon his affidavits filed 20 June 2012, 10 January 2013 and 19 April 2013, and his Financial Statement filed 19 April 2013. Leave was given for the father to rely upon a statement of evidence from the paternal grandmother.[3]
[3] Exhibit F1.
Background
The mother was born in Sweden and met the father in 2003. The parties came to Australia in and lived together from February 2004. They married in 2004 in New South Wales Town C and returned to Sweden in 2005 where they lived until December 2006. After that, the parties lived in Australia and still do. The parties separated on 2 December 2010 when the mother left the family with the two children. The parties’ divorce became final in February 2012.[4]
[4] Mother’s affidavit, filed 30 May 2012, [1] and [2].
The mother described her leaving the family home as a “planned escape” from what she alleges to be the father’s controlling behaviour. After leaving the family home, the mother and the children were placed in refuges on the South Coast of NSW and then the ACT. Since then she has been living in an ACT Housing property.[5]
[5] Single expert’s report, 7.
After separation, the father instituted proceedings in the Federal Magistrates Court, as it then was. On 3 December 2010, orders were made in that Court restraining each of the parties from removing the children from the Commonwealth of Australia.
Final parenting orders were made by consent on 28 January 2011 (“the consent orders”), with one discrete issue, being that of where the children should attend school, being reserved to a later date. Those consent orders provided for the parents to have equal shared parental responsibility and for the children to live with the mother. The consent orders provided that the children would spend time with the father in a graduated process. The time ultimately spent by the children with the father was each alternate weekend from after school on Friday until before school on Monday, each Wednesday from after school until commencement of school on Thursday and for half of the school holidays. The children would also have telephone contact with the father each Tuesday, Thursday and Saturday between 5pm and 6pm.
On 21 June 2011, it was determined that the child N attend the W Primary School.
In May 2012, the mother filed her application to relocate to Sweden and application for property orders.
On 28 June 2012, Federal Magistrate Neville (as his Honour then was) made orders for discovery on the part of the husband and interim parenting orders. Those parenting orders permitted the mother to travel to Sweden with the children for approximately four weeks in mid-2012 to attend the mother’s brother’s wedding.
Ms B was appointed as the single expert (“the single expert”) on 23 November 2012.
On 21 February 2013, this matter was transferred to the Family Court where it came on for hearing on 8, 9 and 10 May 2013.
Relevant law
The Family Law Act 1975 (Cth) ("the Act") was amended in 2011 by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ("the amending Act"). Those amendments affect the provisions that apply in parenting matters. The amending Act stipulates that certain amendments, which are relevant in this matter, "apply in relation to proceedings instituted on or after commencement."[6] The amendments relevant to this matter did not commence until 7 June 2012.[7] These proceedings were instituted on 30 May 2012, therefore the relevant amendments do not apply to this matter. When I make reference to the Act, I refer to the provisions as they were before the amendments came into effect.
[6] Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), Schedule 1, Part 2, s 45.
[7] Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), s 2.
Under the Act, I am obliged, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[8] In this regard, "parental responsibility" means "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."[9] Equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility, as defined in s 61B, and is not a presumption about the amount of time a child spends with each parent.
[8] Family Law Act 1975 (Cth), s 61DA(1).
[9] Family Law Act 1975 (Cth), s 61B.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child, or another child who is a member of the parent's family, or engaged in family violence.[10] Family violence means "conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety."[11]
[10] Family Law Act 1975 (Cth), s 61DA(2).
[11] Family Law Act 1975 (Cth), s 4.
The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child's best interests.[12]
[12] Family Law Act 1975 (Cth), s 61DA(4).
In determining what is in the child's best interests, I must have regard to the factors set out in s 60CC of the Act. Those factors are divided by the Act into "primary considerations" and "additional considerations".
If the presumption of equal shared parental responsibility applies, I am obliged then to consider whether the child should spend equal time with each of the parents or substantial and significant time as defined in the Act. In determining whether a child should spend equal or substantial and significant time with each parent, I must have regard to the best interests of the child as the paramount consideration and also have regard to whether it is reasonably practicable for the child to spend such time with each parent.[13]
[13] Family Law Act 1975 (Cth), s 65DAA(1) and (2).
The pathway for making a determination in relocation matters has been explored in MRR v GR[14], Muldoon & Carlyle[15] and Sayer & Radcliffe & Anor[16].
[14] (2010) 240 CLR 461.
[15] (2012) FLC 93-513.
[16] [2012] FamCAFC 209.
In Sayer & Radcliffe The Full Court said:[17]
47. It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders …
48. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying the relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
[emphasis added]
…
[17] Sayer & Radcliffe and Anor [2012] FamCAFC 209, [47]-[48].
After considering the principles enunciated in MRR v GR, the Full Court in Sayer & Radcliffe and Anor set out “the approach to applications involving relocation of a child”:[18]
[18] Sayer & Radcliffe and Anor [2012] FamCAFC 209, [33]-[37].
33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
…
36.… consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
…
37.However, it is important to emphasise … that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
[emphasis added]
The Full Court in Muldoon & Carlyle (supra) stated that, in a case where a parent plainly wishes to relocate, the correct approach by the Court is not to consider whether the relocating parent should be permitted to relocate and whether that parent has compelling reasons to relocate. Rather, the correct approach is to consider whether it is better for the child to live with the relocating parent in the new location or to live with the other parent in the old location. The Full Court referred to AMS v AIF (1999) 199 CLR 160:[19]
[19] Muldoon & Carlyle (2012) FLC 93-513, [91].
91.Her Honour was not in error in postulating that it was not up to the court to restrain the mother from leaving O and that she was entitled to make that proposal. In doing so her Honour was following what the High Court said in AMS (supra) per Hayne J at 231-2:
217Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out. And it is, then, not surprising that counsel for the mother told the primary judge (in effect) that if the mother’s having custody of the child depended upon her staying in Perth then she would not move to Darwin. But that does not mean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a “good” or a “compelling” reason for wanting to move.
218To translate the question into this form – has the mother shown a good, or good enough reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of the inquiry. The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin. …
219The complexity and difficulty of the inquiries which must be made is increased when, as was the case here, a parent’s wish to move is expressed conditionally – I will go unless I cannot then have custody. It is more complex and difficult because there are then three competing possibilities for consideration.
[original emphasis]
From this it may be derived that the principles to be followed in determining the best parenting orders in a relocation matter are:
a)The question of whether a parent should be permitted to relocate should not be the focus of the Court’s inquiry as to the parenting orders that would be in the children’s best interests.
b)The Court must consider each proposal in the context of what is in the best interests of the children, by reference to s 60CC factors.
c)If an order is made for equal shared parental responsibility, taking into account ss 60CC and 61DA, the Court must consider whether equal or substantial and significant time are in the children’s best interest based on the s 60CC findings. If an order for whether equal or substantial and significant time is in the children’s best interests, whether such an order is reasonably practicable, taking into account the matters set out in s 6DAA(5).[20]
[20] Family Law Act 1975 (Cth), ss 65DAA(1) and (2).
I am guided by these principles in this matter.
There are three proposals to consider in this matter. The first is the mother’s proposal that the children relocate with her to Sweden and spend time with the father in Australia. The second is the father’s proposal that the mother remain in Australia, that the children live with him and spend time with her. The third is the proposal by the mother, if she is not permitted to relocate to Sweden, that the children live with her and spend time with the father.
The mother’s orders sought consider another option – one where the children, the mother and the father all live in Sweden. In that scenario, the mother seeks that the children live with her and spend time with the father. This option does not appear to be a possibility. The father gives evidence that his ability to follow the mother and children to Sweden “if permitted to relocate” is “severely restricted” by language.[21] The father told the single expert that if the children move to Sweden his “gut instinct” would be to “permanently re-locate to Sweden”, but he does not know what he would do or how he would establish himself.[22]
[21] Father’s affidavit, filed 20 June 2012, [34].
[22] Exhibit J1, 28.
I consider the first three above-mentioned proposals in light of the s 60CC factors below.
Best interests of the children
Primary considerations
Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both parents
During her first interview with the single expert, the child N was asked by the single expert to draw a picture of everyone in her family doing something. N depicted herself holding her mother’s hand and kissing her mother (and the other members of the family doing various other things). The single expert commented that the picture was “largely unremarkable, but does indicate [N] has a primary attachment to her mother”.[23]
[23] Exhibit J1, 38.
The child X was also asked by the single expert to draw a picture of everyone in his family doing something. The single expert describes the picture as follows:[24]
This picture included his father, his mother, [N] and himself. He said it was everybody gardening at [the paternal grandmother’s] house, but then he added, “but Mummy’s on a holiday in Sweden.” [X] is shown next to his father on the far right side of the page, and [N] is shown next to her mother on the far left side of the page. However, [the mother’s] arm is reaching over toward [X]. [X] and his father are smiling, but his mother is either frowning or flat in expression, and [N] is without facial features. The picture indicates that [X] has a close attachment relationship to his father, but also wants his mother within his reach.
[24] Exhibit J1, 43.
The children were also observed with the mother:[25]
The handover from [the father] (with whom the children were staying on that date [of the observation]) to [the mother] was reasonably smooth. Both children ran to their mother for hugs. When [the father] was leaving, [X] ran to hug his father and was reluctant to let him go.
Once in my room, the children played a game of dominos with their mother, who had also given them a framed photo each of themselves with her for their room at their father’s room. [N] said, “I love you Mummy” several times, and her mother replied with, “I love you too.” … [X] said at one point, “Where’s Dad, I want to go with Dad.” However, he then cuddled with his mother and played well with her. …
… When his father returned [[X]] began acting-out behaviours (trying to climb on the desk in the reception area to sing loudly). [N] gave her mother lots of warm and tight hugs prior to leaving. [X] was disorganised in his behaviour on handover back to his father, and remained boisterous on his way out of my office. He was not able to focus on saying goodbye to his mother.
[emphasis added].
[25] Exhibit J1, 46.
From these observations, the single expert concluded:[26]
Both children exhibited an [sic] close attachment relationship with their mother. They also demonstrated a very strong bond with each other. [X] also exhibited a strong attachment to his father, and was clearly distressed by having to leave one parent behind to be with the other parent.
[26] Exhibit J1, 46.
The children were also observed with the father:[27]
Ten minutes into the observation session [X] went to sit on his father’s lap. … Twenty minutes into the session [X] became tired of the game and became boisterous and restless. He started climbing over his father. [The father] was patient with him. [N] continued to try to play the snakes and ladder game with her father, but [X] became too disruptive for the game to continue. She sighed but patiently packed up the game. …
[27] Exhibit J1, 46.
The single expert concluded from these observations that:[28]
Both children exhibited an attachment relationship with their father, although [X] more so. [N’s] attachment to her mother seemed closer in relative terms, but this is understandable given her different age and her sex. …
[28] Exhibit J1, 47.
The single expert further said:[29]
[The children] have close attachment relationships with both their mother and their father. Based on my interviews with the children and upon my observation of the children with their parents, I am of the opinion that [N] is most closely attached to her mother, whereas [X] is equally attached to each parent. … [X] perceives himself to be very closely aligned with his father. … [X] selected two dependency items for his father, but none from for his mother. This does not suggest that [the mother] is not meeting [X’s] dependency needs, but it does indicate that [X] strongly wants his father to be available to meet his dependency needs.
[original emphasis]
…
[The parents] clearly love their children, and their children clearly love them. …
[29] Exhibit J1, 47 and 48.
I accept the single expert’s evidence that both children have a close attachment relationship with the mother. I also accept that both children have an attachment relationship with the father, however X’s is closer with the father than N’s. Based on these findings, it would be of benefit to both children to have a meaningful relationship with each parent to the extent that might be possible. It is clear from the evidence that the children love both of their parents.
Section 60CC(2)(b) – the need to protect the child from harm as a result of being exposed or subjected to child abuse, neglect or family violence
The mother has made allegations that the children have witnessed threats made by the paternal grandmother against her. The relevant incidents are detailed below.
On 27 March 2011, when the mother was collecting the children from the father, the paternal grandmother, who was also present, became angry with the mother and refused to make the children available to the mother. The mother returned some time later and informed the paternal grandmother that she had spoken to the police. The father then came out with the children while the paternal grandmother shouted “I had better not go out there ‘cos then I would get you. I’m gonna get you before I die. I’m going to choke you. I am going to squish you. You have ruined [the father’s] life. Because of you [the father] is taking medication.” During this tirade, the father told his mother to be quiet several times. The children were present and could see and hear the paternal grandmother’s comments. They were, understandably, upset and N needed reassurance that nothing was going to happen to the mother.[30] As a result of the incident on 27 March, the mother obtained an interim DVO against the paternal grandmother on 28 March 2011 and that order was made on a final basis (without admissions) on 26 July 2011.[31]
[30] Mother’s affidavit, filed 30 May 2012, [50].
[31] Mother’s affidavit, filed 30 May 2012, [52] and annexure F.
The father denies the above incident occurred as the mother described. He says only that “this series of events is disputed”, but does not give an alternative account. He says that the paternal grandmother asked the mother to leave the home in a “non-confrontational manner”.[32] I accept the mother’s evidence.
[32] Father’s affidavit, filed 20 June 2012, [110] to [115].
Another “incident” occurred during a changeover at McDonald’s on 11 June 2012. The paternal grandmother accompanied the father to the changeover in breach of the DVO. Upon their arrival at McDonald’s, the mother took a photo of the paternal grandmother and the father in the car. The paternal grandmother then approached the mother and said “Who the hell do you think you are? Do you really think your husband is an axe murderer?” The mother felt fearful and worried and went inside the McDonald’s restaurant to seek the assistance of a staff member to facilitate changeover.[33]
[33] Mother’s affidavit, filed 21 December 2012, [11].
The father states that the paternal grandmother attended that changeover at his insistence and denies his mother said “Who the hell do you think you are? Do you really think your husband is an axe murderer?”[34]
[34] Father’s affidavit, filed 10 January 2013, [25] to [35].
The paternal grandmother was charged with breach of the DVO and the order was extended for a further 12 months.[35] Again, I accept the mother’s evidence.
[35] Mother’s affidavit, filed 21 December 2012, [16].
If the mother and children were to move to Sweden, the frequency of any exposure to verbal abuse and threats between the paternal grandmother and the mother would be low. The only likely possibility of it occurring would be during the school holiday periods when the mother accompanies the children to spend time with the father in Australia.
I am satisfied that the paternal grandmother has some difficulty in controlling her feelings, conduct and words, particularly in relation to the children’s mother. This is not to suggest that the paternal grandmother does not love the children. I am sure she does. However, it is not in the children’s interests to have a person whom they love and respect making unkind and unpleasant statements about another person they also love, and respect and have a very close association and relationship with (their mother). The paternal grandmother’s attitude in the past does not assist the father’s case in this matter.
There was an issue about the children, the paternal grandmother and the father all sleeping in one bed at the father’s home. This was clarified that the children, the father and the paternal grandmother all sit in bed and read together. The father often falls asleep in the bed because he is tired from work. The children sometimes seek to sleep with the paternal grandmother and, so it happens that all of them sleep in one bed. I accept that this is an occurrence by coincidence and is not the result of any inappropriate intent by the father or the paternal grandmother.
It follows that if the children were, as the father proposes in his Amended Response, primarily in his care in Australia, it is likely that they would be significantly more exposed to the potential of harm arising from adverse comments that might be made by the paternal grandmother about the mother.
Additional considerations
Section 60CC(3)(a) – any views expressed by the children
During the first interview with the single expert, N expressed a wish to relocate to Sweden to live, telling the single expert that living in Sweden would make her “Really, really, really happy.”[36]
[36] Exhibit J1, 36 and 37.
The child N had a second interview with the single expert ten days after the first at her request. At that interview:[37]
[N] said that she also wanted to talk about why she wanted to go to Sweden. She said, “I feel really at home in Sweden. I feel more normal here, but everything feels perfect in Sweden. And I know more people in Sweden.”
I noted that [N] would not see as much of her father in person, and asked if she would miss him. She said, “Yes, but if the Judge says we can go to Sweden I would go and Miss Daddy [sic]. But I would want to go to Sweden. But only for a holiday. Up to three months, that’s all. I’ve got a lot of friends here. I’d miss Nanny and Daddy and my second cousin [J]. The problem is that when I’m here I miss Sweden, and when I’m in Sweden I miss Australia.” …
…
I asked [N] how [X] would feel about relocating to Sweden. She said, “He would be very, very, very upset because is very close with Daddy. I’m closer to Mummy. … I do want to go to Sweden, but definitely not for more than six months. I wouldn’t go any further than that.” She added, “I say to Daddy that I don’t want to go to Sweden and I say to Mummy that I do want to go to Sweden, otherwise they will be disappointed and angry.”
I asked [N] how she would feel if the Court said she were to live in Sweden until she was an adult. She said, “I would be very upset. I would love to visit there, but not that long.”
[emphasis added]
[37] Exhibit J1, 38 and 39.
The single expert was of the opinion that “although [N] is only 8 years of age, she has been able to form a reasonable and valid view.” N’s view is “likely to be based primarily on an emotional (although to some degree also a cognitive) understanding of the core implications of international relocation for she herself, [X], and her father, her mother and [the paternal grandmother].”[38]
[38] Exhibit J1, 57.
The mother does not believe that N’s wishes have changed in relation to moving to Sweden. She states that, after N’s second interview with the single expert, N said she was “too scared” to tell the single expert “the truth about how [she] really feel[s] about Sweden because she “think[s] Daddy will be really cross with [her]”. She further went on to say that “if Daddy would find out that my true wish is to move to Sweden, the next time he would see me he would get really angry and cross with me … and I would be smacked really hard and I don’t want to have that pain.” N said she was aware that whatever she says to the single expert would be put into a report that the parents would read. N explained to the mother that, instead, she told the single expert she wanted to go to Sweden but not to live there forever. She explained that she did this because it the father would be “not angry because he then would think that I want to live in both countries.”[39]
[39] Mother’s affidavit, filed 19 April 2013, [167] to [170].
It is difficult to determine, in the circumstances, what N’s true wish is in relation to a move to Sweden. The mother’s account of what N said is consistent with the single expert’s report that N tells each parent what they want to hear so that they do not get angry. N’s statements to her mother could very well have been said because she did not want her mother to get angry.
During the hearing the expert changed her opinion and expressed the view that, on balance, she believed N wants to relocate to Sweden.
The child X also had a second interview with the single expert and during that interview the single expert asked him where he would like to live. The single expert explained that she would not usually ask a child of X’s age to express his wishes, however, given X was well aware the question of whether he would live with his mother in Sweden or remain Australia was a contested issue between the parents, the single expert made an exception:[40]
I asked [X] where he would like to live. He replied: “America, because it snows in winter.” I asked, “Does it snow in winter in Sweden?” He said, “Yes. I want to go to Sweden but I want Nanny and Daddy to go too.” I asked [X] [what he] would want if his father and [the paternal grandmother] could not go to Sweden. He replied, “I would stay in Australia.”
To clarify [X’s] wishes further, I asked him, “Would you like to go to Sweden to live or for a holiday. He said, “For a holiday.” I asked [X], “If you could only see Daddy on Skype because you were in Sweden, but visit him sometimes, how would you feel?” [X] replied, “Angry”. I asked, “Who would you be angry with.” He said,
“With Mummy.”…
[X] has said that he does not want to relocate to Sweden and he would be angry with his mother if this occurred. While he is only just five years old, his wishes are strong and based upon a fear that he will be separated from his father.
[emphasis added]
[40] Exhibit J1, 43 and 49.
In this matter, the children are obviously in conflict. They want to spend time or live with each of their parents to the extent that it is possible to do so and are very concerned and anxious not to cause offence or upset to either parent. On balance, I accept that N would prefer to be with her mother in Sweden and that X probably would prefer to be with his father. What is not clear, however, is the extent to which either child would be prepared to be separated from the other and there is nothing in this matter which would indicate that the children should be separated from each other.
Because of the way this matter was conducted, no attention was paid to the proposition that the children’s wishes were directed to their primarily living with their father. I could not make a finding that that constituted their wishes, even though I accept that X has a close affiliation with his father.
Section 60CC(3)(b) – the nature of the children’s relationships with each of the parents and other persons
I have discussed the nature of the children’s relationships with each of the parents; there is nothing further to add.
The children appear to be close to both their paternal grandmother and their maternal grandparents.
They participate in telephone and Skype calls the mother has with her family and they have met all their cousins in Sweden and Norway. In addition, the children and the maternal grandparents correspond by letters. The children have also spent time with the maternal grandparents when they have visited the family in Australia.[41] The mother describes the children’s relationship with the maternal grandparents as “very close and connected”.[42]
[41] Mother’s affidavit, filed 30 May 2012, [33] to [35].
[42] Exhibit J1, 14.
When the single expert asked how close the child N was to the paternal grandmother, N informed the single expert:[43]
“Really, really, really close.” I asked her how close she was to her maternal grandparents. [N] said, “I am probably closer to Nanny … because I see her more, but I’m also close to Mormor (maternal grandmother) because we see each other on Skype almost five times a week.”
[43] Exhibit J1, 39.
N’s comments about being close to Nanny were reflected in the single expert’s observations of the children with the paternal grandmother:[44]
… [N] read a Cinderella book to her grandmother and [X]. [X] was restless and said, “I want to go to Daddy.” However, [the paternal grandmother] was able to get him to settle, and he listened to his sister read for a further several minutes.
[X] cuddled up on the couch with [the paternal grandmother] at first, and then sat in a separate chair. Both children were happy and settled after [N] finished reading.
The children both appeared to be warmly attached to their paternal grandmother. The only comment I would make was that, as she was about to leave my rooms with the children (while helping them pack up), [the paternal grandmother] tearfully said, “I don’t know how I’d go on without these little children.” I would caution against such comments being made in front of the children, who are already quite torn about their family situation and showing some signs of emotional distress in relation to it.
[emphasis added]
[44] Exhibit J1, 47.
The children’s relationships with their grandparents are important. They do not have the same importance as the children’s relationships with their parents. The children are very close to their paternal grandmother (notwithstanding the comments I made about the situation previously) and I am also satisfied that the child N feels a closeness to her maternal grandparents. It is natural that the children should be closer to their paternal grandmother than their maternal grandparents because they have spent more time with her. I am satisfied that if the children were to live in Australia, they would receive the support of the paternal grandmother (on the assumption that she could control her feelings about the mother) and I am equally satisfied that if the children were to live with their mother in Sweden, that they would receive support from the mother’s parents.
Section 60CC(3)(c) – the willingness and ability of each parent to facilitate and encourage a relationship between the child and the other parent
The mother appears to be willing and able to facilitate and encourage a relationship between the children and the father. There have been allegations by the father that this is not so (see discussions regarding the mother’s attitude to the responsibilities of parenthood) and that the mother did not allow him to speak with the children on the phone when they were in holiday in Sweden. I make findings adverse to the mother in relation to this for the reasons set out below.
The father says the mother has been difficult in relation to the time the children are to spend with him. Much of what the father says are assertions. While a few instances are detailed, he provided little evidence about specific times when the mother refused/obstructed his time or telephone conversations with the children.
The father asserted, as at June 2012, that the mother continued to deny him telephone contact with the children, even when he phoned at the times specified in the orders; that the mother refused his offers to care for the children while she worked or studied; and that the mother consistently denied him time with the children in accordance with the orders.[45] The father gives little evidence about the specific times and dates on which these things are alleged to have happened. He does, however, give evidence about one occasion where the parents had agreed that changeover would occur at midday, rather than 9am, on Monday owing to a public holiday. The father says the mother forgot about this arrangement and police arrived at his doorstep at about 9:45am.[46]The mother’s actions in calling the police were unjustified, but the father himself concedes that the mother did this because she “forgot” about their arrangement and not because she had any intention to curtail the father’s time with the children.
[45] Father’s affidavit, filed 20 June 2012, [46], [90], [119] and [133].
[46] Father’s affidavit, filed 20 June 2012, [120] to [122].
The father also stated that when the mother moved out of the family home with the children in December 2010, she “denied [him] access to [the children] until the matter was placed before the court”.[47] (I comment about this later in my reasons). It is further alleged by the father that the mother prevented N from accessing the mobile phone he provided to N.[48]
[47] Father’s affidavit, filed 20 June 2012, [35].
[48] Father’s affidavit, filed 20 June 2012, [40].
The father also stated that on 14 October 2012, after agreeing to the father spending make-up time with the children after their holiday in Sweden, the mother “reneged” on this offer in relation to N. She did not allow N to go with the father and X became distressed about the fact that N was not there with him.[49]
[49] Father’s affidavit, filed 10 January 2013, [9] and [51].
It is also alleged that the mother is not willing to facilitate the children’s relationship with the paternal grandmother. The father says that on one occasion, the mother did “all she could to prevent [the father] from making the journey to [Town C] [to visit his mother]”. She called the police and told them the father was in an erratic state because he had not taken his anti-depressant medication. The father claims the police attended on his home, found him fit to drive a vehicle but recommended the children remain in Canberra.[50]
[50] Father’s affidavit, filed 19 April 2013, [12].
It is to be noted the assertions by the father in this regard are not supported by any specific dates, times and circumstances. Having listened carefully to the mother’s evidence, I am satisfied that while she may find it difficult to actively encourage the children in their regard for and affection towards their father, she will comply with court orders and I so find.
The mother reported to the single expert that, if she were permitted to move to Sweden:[51]
I would do as much as I can for him to still be a part of the kids lives. It is important for the children as he is their father and it would be detrimental to the kids to [lose] their relationship with him and not have a chance for their relationship to develop. Even if he’s not a fantastic father, he needs to be part of their lives. I would never discourage contact with their Dad.
[51] Exhibit J1, 15.
One of the father’s reasons for opposing the mother’s relocation to Sweden is his fear that, once in Sweden, the mother will not abide by parenting orders for the children to spend time with the father, and the father will have no means of enforcing Australian parenting orders in Sweden.
To assuage the father’s fears, the mother obtained advice from a Swedish family lawyer about how orders from an overseas jurisdiction could be enforced in Sweden. The Swedish solicitor wrote:[52]
… it would not be possible to enforce or register a judgment form Australia in Sweden. However, a party can make an application to Stockholm District Court requesting that their agreement, which means the judgment from Australia, shall form the basis for a corresponding judgment in Sweden. This is applicable as long as the judgment does not conflict with Swedish law. The part of a judgment from Australia relating to custody and the other parent’s right to access could undoubtedly form the basis for a judgment of a Swedish court.
If, once a judgment has been issued in Australia, a party does not follow an order on the children’s right to access with the other parent, then that parent can apply for a summons at Stockholm District Court, or at the District Court in the court district where the child is domiciled, regarding both custody and access matters. Great weight would then be attached to the provisions of the previous judgment when the Swedish court assesses what is in the best interests of the child.
[52] Exhibit M1.
The mother has said that, if she were permitted to move to Sweden with the children, any order for the children to spend time with the father in Australia “would be honoured and upheld. It would be put into Swedish law, and a copy would be sent to [the father’s] solicitor. I have offered for the children to come every two years as it’s important to them as Australians and to continue their relationship with their Dad and [paternal] grandma.”[53]
[53] Exhibit J1, 15.
The mother states that during the most recent holiday to Sweden, she tried to call the father for the children on about six occasions during the specific times the father was permitted to speak to the children. She felt that if the father wanted to speak to the children, then he would call them.[54] While this attitude does not demonstrate a positive and pro-active attitude by the mother towards encouraging the children’s relationship with the father, the mother does comply with court orders regarding the communication the children have with the father.
[54] Proceedings, 8 May 2013, cross-examination of the mother.
I accept the mother would abide by Australian orders and facilitate the children’s relationship with the father by complying with orders for the children to spend time with him.
The mother, through her counsel, offered that if she is able to return to Sweden with the children, she would put in place “mirror orders” under Swedish law which would enable the father to enforce any orders that were made in this country about his spending time with or having communications with the children. Although the evidence about the feasibility of this arrangement and the father’s locus standi in Sweden was scant, I am satisfied that while such an arrangement may fall short of a guaranteed legal safety net, it represents a practicable solution.
It would appear that the father or the paternal grandmother has spoken to the children about the current court proceedings:[55]
In September 2012 [X] said to me “You called the police on Daddy and Nanna and you make them go to Court”. I reassured him that this was not true and changed the topic. …
On occasions after I have been to the Federal Magistrates Court I have been asked questions about it by [X] after he returns to my care from time with [the father]. [X] said to me on one occasion in the car, “Why do you make Daddy go to Court? Daddy cannot afford that”. On another occasion over dinner [X] said “Why are you taking Daddy to Court? That is not very nice to do. Daddy does not have that money.”
[55] Mother’s affidavit, filed 21 December 2012, [42(k)] and [(l)].
These comments made by the father to the child X demonstrate a poor understanding on the father’s part of the responsibilities of parenthood. The father has embroiled X in the adult conflict by making him aware of the Court proceedings. X’s comment that the mother “taking Daddy to Court” is “not very nice to do” because “Daddy does not have that money” indicates that X takes a negative view (based on what the father has said to him) of the mother’s actions. This may adversely affect X’s views of the mother and affect his relationship with the mother. It was irresponsible of the father to make such comments to X.
However, the father reported to the single expert that he does his “best” to
isolate the children from [his] reactions to [the mother].” He talks “only positively” about the mother.[56]
[56] Exhibit J1, 26.
I am prepared to accept that the father genuinely would like to isolate his negative feelings about the children’s mother from them. He has been subject to lapses in this regard in the past. This has not been in the children’s best interests.
It is to be hoped that following upon the finalisation of these proceedings the father is able to adjust his behaviour to ensure the children have a positive experience in the time that they spend with him and that they are encouraged in their relationship with their mother. To the extent that there is a comparison between the attitudes of both parents, I accept the mother is more likely to encourage the relationship with the children with their father than vice versa. I do not, however, place a great deal of weight upon this consideration. This is so notwithstanding that cross-examination of the single expert showed that the mother did not agree that the father makes positive contributions to the children’s lives. I accept the mother will comply with orders.
The genuineness of the father’s commitment to developing or maintaining a relationship between the children and their mother is possibly called into question by his late decision to change the orders that he was seeking to orders for the children to live primarily with him. It is difficult to interpret what was the basis for this late change of heart, but it is unlikely that it was, in any way, generated by his desire to encourage the relationship between the children and the mother.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances
The children’s views, as expressed to the single expert, were that they would like to go to Sweden for a holiday for a few months, but no longer. The child X said he did not wish to go to Sweden if the father and paternal grandmother did not go. In light of this, the single expert considers the likely effect of a move to Sweden:[57]
If the children were permitted by the Court to relocate to Sweden, [N] would be expected, in the short-term, to adapt to her change of circumstances and embrace her new life. However, she has expressed that she does not want to move away from her father in Australia, and would be likely to experience guilt, grief and loss, anger and attachment disruption in the medium to longer term. These emotional states would likely be expressed as anxiety and sadness. …
Given her mother’s report … that [N] is experiencing heightened anxiety and depression symptoms, moving her from Australia and her relationship with her father against her wishes would be expected to have a detrimental overall effect on [N]. Her relationship with her maternal grandparents would be expected to initially compensate for, and distract from, her relocation away from her father, as would the novelty of a new school. However, as the realities of life in Sweden become more apparent to [N] (i.e. once she understood that her fantasy of life in Sweden being “perfect” in all domains was unrealistic), she would be expected to deeply miss her father and her life in Australia. Due to the close bond between [N] and her mother, I would not foresee [N] becoming angry with her mother for initiating the relocation, but I do see her as becoming increasingly despondent and anxious as a result of the disruption to her attachment relationship with her father.
[X] has said that he does not want to relocate to Sweden and he would be angry with his mother if this occurred. While he is only just five years old, his wishes are strong and based upon a fear that he will be separated from his father. While I expect that [X] would cope with this by forming a close day-to-day attachment relationship with his maternal grandfather in Sweden, he would also be very likely to respond to being separated from his father through acting-out behaviours (particularly aggressive behaviours). … [X] is already displaying signs that he is struggling with the emotional demands of living between two households. If he were to move to Sweden and endeavour to maintain a Skype relationship (together with other forms of telecommunication) with his father, I would predict that [X] would initially act out and/or withdraw emotionally. Over the longer term, he may experience and demonstrate resentment towards his mother for initiating the relocation.
[57] Exhibit J1, 48 and 49.
If the mother and children relocate to Sweden, “it is likely that the children’s relationship with their father (and particularly [X’s], given his younger age and his male gender) would atrophy to some extent. At the very least, the children’s relationship with [the father] would change significantly.”[58]
[58] Exhibit J1, 53.
The single expert recommends that, if the children moved to Sweden, the following should occur in order to foster and support the children’s relationship with the father:[59]
a)The mother bring the children to Australia at least every two years at her expense. This is what the mother seeks as final orders.
b)The father visit Sweden every alternate year for at least four weeks.
c)The children have Skype contact with the father three mornings during the week with longer sessions on weekends.
[59] Exhibit J1, 53.
If the children move to Sweden, this would have adverse impacts on the father which could, in turn, adversely impact the children:[60]
If [the father] remained in Australia (in the event [the mother] was permitted to live in Sweden with the children), I would predict that he would suffer a further period of Depression, which would be likely to be severe and have negative implications for his ability to function occupationally and perhaps also socially. His existing vulnerability to paranoid beliefs would be expected to be amplified, and his dependency upon his mother may also increase. In my opinion this would not prevent him from regularly contacting the children via whatever means were reasonably available to him … but the children would be expected to be aware that their father was deeply upset about not being in closer proximity to them, and the sense of guilt this may engender in the children could negatively affect the relationship between [the father] and the children.
[60] Exhibit J1, 55.
The father’s application was for the children to remain living with the mother in Canberra and to spend time with him each alternate week from after school on Wednesday until the commencement of school on Monday and for half the school holidays. This represents a change from the current arrangements he has with the children. The father currently spends about four nights a fortnight with the children during school terms and this proposal means he would spend five nights a fortnight with the children. The father’s final proposal, however, saw the children living with him. It would be a significant change that the children go from spending time with the father now each alternate weekend and for one night in the off-week, to spending a block period of five nights a fortnight with the father. Even more strongly would it be a significant change for the children to live primarily with the father.
The single expert makes the following comments in light of the father’s late reinstated application for the children to live with him:[61]
… it would not be in the children’s best interests to live with [the father]. [The father] demonstrates some ongoing psychological vulnerability (particularly as highlighted in the results of his psychometric testing) and would not, at this stage, be expected to function optimally as a majority-care parent. … Furthermore, [the father’s] work responsibilities currently result in much of the care of the children being assumed by [the paternal grandmother] …
Given [the paternal grandmother’s] acrimonious relationship with the children’s mother, increased time spent with [the paternal grandmother] at the home she shares with [the father] would place the children in a situation where they feel increasingly torn by their loyalties to different family members. This would be expected to be expressed as increased anxiety in [the child N], and an escalation in attention-seeking and aggressive behaviour in [the child X].
[emphasis added]
[61] Exhibit J1, 49.
I accept the single expert’s evidence in relation to the father’s capacity to be a majority care parent. The single expert’s comments in this regard are also relevant to the extent that they refer to increased time between the paternal grandmother and the children. That is, that this would place the children in a situation where they feel increasingly torn by loyalties to different family members.
If the mother and children continue to live in Australia and their time with the father increases:[62]
the mother would be expected to experience significant subjective distress which may be expressed through a further episode of Depression. The children would be aware of her distress, experience guilt in relation to it, and seek to comfort and reassure their mother. This would have a net overall negative effect on [the mother’s] parenting relationship with the children.
Section 60CC(3)(e) – the practical difficulty and expense of the children spending time and communicating with a parent
[62] Exhibit J1, 56.
If the mother and children are permitted to move to Sweden, there would no doubt be great practical difficulty and expense in the children spending time with the father in Australia.
There would be, in comparison, little practical difficult and expense for the children in spending time with the father if the mother remained living in Canberra. They do not live far from one another.
Section 60CC(3)(f) – the capacity of the parents and any other person to provide for the child’s needs
The single expert’s opinion is that both parents have the capacity to provide for the children’s emotional and intellectual needs.[63]
[63] Exhibit J1, 50.
It would appear that one of the main reasons the mother wishes to move back to Sweden is because she feels isolated and lonely in Canberra because of the language and cultural barriers which make it difficult for her to make other friends. She depends a lot on her parents as a primary source of comfort and encouragement. The mother was particularly low in March 2012 and thought about suicide. However, she “snapped out” of those thoughts when she considered the children.[64]
[64] Mother’s affidavit, filed 30 May 2012, [57] and [58].
The mother reported that if she could not relocate to Sweden with the children, she would be “depressed … feel dissatisfied. The children would pick up on that. I would move on, but I’d feel unhappy and trapped.”[65]
[65] Exhibit J1, 15.
The single expert assessed the mother as being a:[66]
psychologically stable individual, but one who exhibits some symptoms of heightened anxiety in the context of her relationship with [the father] and the current family law proceedings. She is particularly anxious about interactions with [the father] and [the paternal grandmother] … [The mother] also reports feeling “trapped” in Australia, and is fearful that she may re-experience Depression should the Court order that she is not permitted to re-locate to Sweden with the children. However, in my opinion [the mother] could manage this risk successfully with appropriate supports, even though such a decision by the Court would be very distressing to her.
[66] Exhibit J1, 9.
The single expert said in her report that it is understandable the mother feels trapped in Australia because she is now living alone after the dissolution of her marriage, she has no positive relationships with any member of the father’s family and she has limited social supports.[67] While the single expert concludes that the mother’s parenting relationship would be optimised if she were permitted to relocate with the children to Sweden because she would be close to her own family and would be removed form distress associated with regular contact with the father,[68] the single expert’s opinion, if the mother is not permitted to relocate to Sweden, was, at the time of the report:[69]
… [the mother] is likely to be able to cope adequately from a psychological perspective. [The mother] is a resilient individual who is currently managing a very stressful period of her life without any mental health disorder or the aid of any psychiatric medication. …
In sum, my opinion is that [the mother’s] psychological health is generally good, and she would be able to parent the children effectively in either Sweden or Australia.
[67] Exhibit J1, 52.
[68] Exhibit J1, 54.
[69] Exhibit J1, 52.
The single expert also states that it would be “most important” for the mother to be able to travel with the children annually.[70]
[70] Exhibit J1, 54.
Subsequent to receiving the single expert’s report, the mother filed a further affidavit on 19 April 2013. In that affidavit, she details how well or not she is coping with living in Australia:[71]
8. I have put on a mask to shield the children from how I feel. …
9. There are days however when I feel like I can’t keep all of this up. Some days, I drop the children to school, get home and have planned a list of things I will get done. Then I come into house [sic] and just start crying or sit on the couch and think. I then find that hours have passed by and I have not really noticed anything. On those days, once I get the children home, even cooking dinner for them can feel too hard. On those days, we have noodles or McDonalds or something else quick.
10. … My sleep is disturbed and I worry about my future and the future of our children. I worry about how I will handle [the father] and his mother if I am not permitted to live in Sweden, once this case is over and the spotlight of the Court proceedings has passed.
…
12. My energy levels are generally low. There are some days that I feel I cannot get out of bed. I have to make myself do this, thinking about the things that need to be done for the children. …
13. On the days that I am alone, I often don’t feel motivated enough to get properly dressed. Some days I am in my pyjamas all day and don’t leave the house.
…
17. I have worried that if I say I am “not well” or “not coping” in these proceedings, that I will be criticised and considered not to be a good parent. I have worried that this means that the children might be taken from me, as I am not being a good enough mother to them.
[71] Mother’s affidavit, filed 19 April 2013.
The mother deposes to finding it difficult to make friends with people of her age in Canberra and feeling lonely.[72] The mother has a much more extensive support network in Sweden, including her parents, extended family and friends.[73]
[72] Mother’s affidavit, filed 19 April 2013, [79] to [81].
[73] Mother’s affidavit, filed 19 April 2013, [82]
During cross-examination of the single expert, the matter was adjourned so that the single expert could make an updated assessment of the mother.[74] After that assessment, the expert reported that the mother said, at the original interview in January 2013, the mother was scared that if she indicated she was depressed or suffered anxiety that the children would be removed from her care. The mother, therefore, gave a more ‘upbeat’ account of her situation to the single expert.[75]
[74] Proceedings, 10 May 2013, cross-examination of the single expert.
[75] Proceedings, 10 May 2013, cross-examination of the single expert.
Based on the updated assessment, the single expert’s findings were that the mother met the criteria for major depressive disorder. The mother indicated that on the days the children are with her, it does not affect her functioning because she is “pushing through for the kids”. She, however, has diminished interest in all activities of the day, every day, has gained weight, experienced insomnia, feelings of worthlessness, excessive and inappropriate guilt and markedly diminished concentration.[76]
[76] Proceedings, 10 May 2013, cross-examination of the single expert.
The single expert also concluded the mother has general anxiety disorder. The mother finds it difficult to control worry, is easily fatigued, has difficulty concentrating, her mind goes blank at times, she is irritable in relation to interactions with the father and the paternal grandmother, experiences muscle tension and sleep disturbance.[77]
[77] Proceedings, 10 May 2013, cross-examination of the single expert.
The single expert commented that these updated ‘diagnoses’ were more consistent with her clinical impression of the mother from the first interview. The single expert said that in the first interview, her clinical impression was that the mother was at least somewhat depressed and anxious. However, her forensic test did not indicate this and, because the single expert was working in a forensic capacity, she did not deviate from the results of the forensic test. However, the current conclusions are more consistent with her clinical impression. This gives force to the single expert’s updated assessments.[78]
[78] Proceedings, 10 May 2013, cross-examination of the single expert.
The single expert’s reasons for her conclusions were well explained and the above is merely a summary of those reasons. I accept the single expert’s conclusions about the mother’s current mental health.
Based on her updated assessment of the mother and her reading of the mother’s affidavit of 19 April 2013, the single expert’s opinion is that she will experience significant and prolonged depression and generalised anxiety disorder in the event she is not permitted to live in Sweden. However, if she were to move to Sweden, the main factors which contributed to her depression and anxiety disorder would be ameliorated. The single expert’s opinion is that upon return to Sweden, within a short period of time, and with the support of family and friends and perhaps appropriate therapy, the mother could return to full psychological health.[79]
[79] Proceedings, 10 May 2013, cross-examination of the single expert.
If the mother and children relocate to Sweden, the mother would have the support of her family, particularly her parents who would live close to her. Not only will the mother’s parents be able to provide her with emotional support, they will also be able to provide the mother with some financial support so that she does not immediately have to seek employment if she returns to Sweden. This will enable the mother to be available to care for the children and assist with their settling in to living in Sweden.[80]
[80] Mother’s affidavit, filed 30 May 2012, [40].
In Sweden, it is expected the mother would also be able to provide financially for the needs of the children. She is trained as a health professional in Sweden and gives evidence that it will not be necessary for her to do any further training to able to re-engage or be employed as a health professional in Sweden.[81]
[81] Mother’s affidavit, filed 30 May 2012, [41].
If or when the mother returns to work in Sweden, her family is available to care for the children while the mother works and there are also after-school care and day-care services available which are significantly subsidised by the Swedish government. The mother has obtained information that the costs of day-care for two children on a full-time basis would be $114 per month. Before- and after-school care for two children on a full-time basis would be $58 per month. While the mother does not intend to place the children in care full-time[82], it is an indication of the affordability of care in Sweden and supports the mother’s case that, in Sweden, she would have greater capacity to provide for the children’s needs than she does in Australia where she receives only Centrelink benefits as income and where child-care is significantly more expensive.
[82] Mother’s affidavit, filed 30 May 2012, [42].
Perhaps the most significant contrast between the proposals of the parties is that, if the mother were to remain in Australia as the father suggests, she would be in a difficult financial situation. In the short term, she would be substantially dependent upon social security and public housing. She may obtain employment in due course but it would be more difficult for her to do so in Australia than in Sweden. Her transport needs are quite difficult, particularly if she is unable to drive because of her medical condition. The mother would be isolated from support systems that she would reasonably enjoy in Sweden and, based on the expert’s opinion, her mental health may deteriorate to the level where she is at significant risk of experiencing significant and prolonged depression and generalised anxiety disorder. The expert was also of the view that the mother could parent more effectively in Sweden.
In Sweden, she would have the support of her parents, accommodation provided by her parents and the probability of a job. Transport for the children to and from school would be somewhat simplified.
I turn now to consider the situation if the family lived in Australia.
The mother raised a concern that the father will not actually be available to care for the children because of his work commitments and it will, instead, be the paternal grandmother who cares for the children.[83]
[83] Mother’s affidavit, filed 21 December 2012, [22] to [28].
The mother is concerned about arrangements where the children are primarily looked after by the paternal grandmother because of comments made to her by the children and also because she is concerned the paternal grandmother will make derogatory comments about her in the children’s presence. The child N told the mother about a “normal day” at the father’s home:[84]
Nanna wakes up first. She wakes Daddy up. Then she goes down to make breakfast in the kitchen. We wake up and hear Daddy leaving when the door closes. We have breakfast, me and [X], because Nanna has had hers already with Daddy. After breakfast we put on the T.V, while we are getting dressed. Then Nanna says she needs her nanna nap and she falls asleep on the couch. Nanna says she is only going to sleep for five minutes but it is more [than] two hours. While she is asleep me and [X] watch T.V. and play with our toys. If we are hungry we try to wake Nanna up by shaking her or tickling her and if that sometimes does not work, we sit on her. But she is fast asleep and does not wake up. Then we take what we want from the fridge or in the cupboards. Then when Nanna wakes she cooks us dinner and we eat ane we watch more T.V. and then we go to bed. On some days we go to Sunday school with Daddy but not with Nanna because she does not go to church because she says that she prays at home. Then after Sunday school Daddy takes us home to Nanna and then he goes to work all day. It feels that Daddy does not care about us anymore since he has got this stupid job … He does not make time for us anymore and Nanna only sleeps all day.
[84] Mother’s affidavit, filed 21 December 2012, [28].
The father denied that it is the paternal grandmother who cares for the children. The father finishes work at 4pm and then heads home to care for the children. He also denied that his mother always sleeps when the children are in her care, claiming she rarely sleeps for more than one hour at a time. It is difficult to see how the father would know what happens while the children are in the paternal grandmother’s care and he is away at work.
The father states that he works from 8am to 4pm on weekdays and one weekend per month. However, his employers were accommodating and flexible.
The single expert concluded that, if all of the family resided in Australia, because of the father’s work schedule, the mother was better able to provide for the children’s physical needs.[85]
[85] Exhibit J1, 51.
The mother asserted that N and N’s teachers have informed her that there have been many occasions when N has returned late to school after spending time with the father and is frequently collected late when due to spend time with the father.[86]N was also late in attending the 2012 end of year school concert. The children participating in the concert were to arrive at school at 5pm so they could change into their costumes and have their make up applied. The children were in the father’s care and N did not arrive at school until 5:40pm, causing N to feel flustered and embarrassed at being late in attending the concert.[87]
[86] Mother’s affidavit, filed 21 December 2012, [30] to [35].
[87] Mother’s affidavit, filed 21 December 2012, [36] to [38].
By way of summary, if the children were living in Australia and spending substantial or primary time with their father, I could not be satisfied on the evidence before me about the father’s capacity to provide for the children’s physical and emotional needs because of his work commitments and his psychological vulnerabilities. That is not to say that the children would not benefit from spending time with him, but rather, that his capability to provide for their physical care contrasts with that of the mother, particularly if she were in the supportive environment she proposes in Sweden. If the mother herself were obliged to remain in Australia, her capacity to provide effectively for the children may be diminished by her psychological difficulties as referred to by the single expert in her oral evidence.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and of either parent and any other characteristics of the child the Court considers relevant
The children speak fluent Swedish and have spent time in Sweden in the past. They would be able to adapt to living in Swedish culture if they moved to live there.[88]
[88] Exhibit J1, 56.
The mother’s primary support networks, her parents and other family members, are all in Sweden. The only close friend the mother has in Australia is Ms W.[89] Ms W has been the subject of disputes between the parties, with the father claiming she is an unsuitable person to assist in looking after the children when the mother is unavailable. While the mother has attended recreational activities in Canberra, those activities are currently difficult for her to participate in, because of her parenting responsibilities.[90]
[89] Exhibit J1, 12 to 13.
[90] Exhibit J1, 13.
Section 60CC(3)(h) – Aboriginal or Torres Strait Islander children
This is not a relevant consideration in this matter.
Section 60CC(3)(i) and (4) – each parent’s attitude to the child and to the responsibilities of parenthood.
There has been some criticism of the father’s attitude to the responsibilities of parenthood. The father’s financial support of the children is a relevant consideration. Since December 2011, the Child Support Agency (the CSA) has been collecting arrears owed to the mother in child support. Between 29 December 2011 and 15 May 2012, the mother received $44.54 each fortnight as payment of arrears.[91] The father asserts that the arrears accumulated because he failed to inform the CSA about his cessation of employment (the father had commenced a period of unpaid leave).[92]
[91] Mother’s affidavit, filed 30 May 2012, [14].
[92] Father’s affidavit, filed 20 June 2012, [48].
The mother meets all costs of the children while they are in her care and, as at May 2012, the mother was not receiving any financial assistance from the father. She met the costs of the children’s involvement in extracurricular sports (commencing May 2012) and other excursions and special school activities that occur.[93] The father’s evidence is that he offered to meet the cost of the children’s extracurricular sports and other extracurricular activities or excursions. He says he requested a total amount for the cost of these activities from the mother, but she did not respond,[94] and so he did not pay.
[93] Mother’s affidavit, filed 30 May 2012, [21].
[94] Father’s affidavit, filed 20 June 2012, [57] and [58].
At times, the mother has not been able to meet all expenses relating to the children. For example, in December 2011, the mother could not afford to pay for the children’s school materials for 2012. Although the school principal allowed the mother to defer payments until February 2012, the school ultimately met the cost on the mother’s behalf.[95] The school has also assisted the mother in meeting the costs of N’s excursions in 2011 as the mother could not afford to meet the full costs on her own.[96] The father states that he put money in an envelope in N’s backpack to cover the cost of her school materials.[97] It is completely unclear what happened to this money, if it was indeed placed in N’s backpack. I place little weight on this evidence from the father.
[95] Mother’s affidavit, filed 30 May 2012, [22].
[96] Mother’s affidavit, filed 30 May 2012, [23].
[97] Father’s affidavit, filed 20 June 2012, [55].
The father asserted that he has provided the mother with “numerous cash-in-hand” payments to assist with paying for the children’s activities. He says he also arranged to pay for N’s sport and music lessons.[98]
[98] Father’s affidavit, filed 20 June 2012, [61].
From June 2012, it became clear to the mother that the father had obtained new employment. The children informed the mother that they had to get out of bed early and get in the car with the paternal grandmother so that the grandmother could drive the father to work.[99] The father said he advised the mother of his new employment and also advised the CSA of his new employment and increase in income “immediately”.[100]
[99] Mother’s affidavit, filed 21 December 2012, [20]-[21].
[100] Father’s affidavit, filed 10 January 2013, [46] and [48].
The father denied all of the allegations the mother had made in relation to non-payment of child support.[101]
[101] Father’s affidavit, filed 20 June 2012, [10].
In March 2013, the mother emailed the father informing him that N’s innersoles cost $889.95 and she requested that the father pay $444.97.[102] The father said he would pay $200 on 28 March and pay the rest the following Thursday and the mother agreed to this arrangement.[103] After investigating the Medicare rebate for the cost of the innersoles, at the father’s request, the mother asked the father to pay her $221, being half of the net cost to her (after the Medicare rebate). The mother did not receive any payment from the father.[104]
[102] Mother’s affidavit, filed 19 April 2013, [112] and annexure G.
[103] Mother’s affidavit, filed 19 April 2013, [113].
[104] Mother’s affidavit, filed 19 April 2013, [117].
In relation to these financial issues, I prefer the evidence of the mother to the father. My preference is based upon the mother’s demeanour and the form and nature of her evidence in the witness box. This reflects, in part, upon the father’s attitude to his responsibilities as a parent in that it indicates, on my finding, that he has not provided the financial support for the children that might properly have been expected of him in the circumstances.
In addition to the father’s lack of financial support of the children, there was also a suggestion that he did not take the opportunity to communicate with the children as often as he might have during their holiday to Sweden for the mother’s brother’s wedding. The mother asserted that he only spoke to the children on two or three occasions during their four week holiday. The mother described instances when the father was online on Skype but did not contact the children.[105] The father provided a different account of what happened. He alleged the mother only allowed him to speak with the children on two or three occasions during their holiday in Sweden, despite the father’s more frequent telephone calls and Skype calls.[106] I make no finding adverse to the father based on this. With the time difference between Australia and Sweden, and the difficulties that can arise with technology and internet connections, I do not conclude that the father’s minimal communication with the children during their time in Sweden indicates a poor attitude towards the responsibilities of parenthood. Nor do I make a finding that the mother deliberately withheld the children from speaking to their father.
[105] Mother’s affidavit, filed 21 December 2012, [2] to [5].
[106] Father’s affidavit, filed 10 January 2013, [5] to [6] and annexure B.
The mother, on the father’s report, has not provided the father with any information regarding school photographs for the children. Furthermore, when the mother left the family home, she took all the family photographs and has not provided them to the father so that he can make copies.[107]
[107] Father’s affidavit, filed 20 June 2012, [8] and [9].
The father complains that when the mother left the family home with the children in December 2010, she did not inform him of her whereabouts and would not allow the father to have telephone communication with the children.[108] The father would argue that this demonstrates a poor attitude to the responsibilities of parenthood by the mother.
[108] Father’s affidavit, filed 20 June 2012, [35].
The mother stated that when she left the family home on 2 December 2010, she called the police to make arrangements to notify the father. The mother’s understanding was that someone from the Domestic Violence Service called the father to let him know that she and the children were safe. The mother acknowledged that the children were upset about being removed from the family home and the father suddenly. However, she says she explained to N that she did not feel safe with the father and she told X they were going on a holiday. The mother also acknowledges that she could have let the children speak to the father while they were in the refuge. This was a sensible acknowledgement from the mother.[109]
[109] Proceedings, 8 May 2013, cross-examination of the mother.
I accept the mother’s explanation in relation to the events that occurred when she separated from the father. There is no doubt that her departure without informing the father of where she was going with the children was a deficit in her responsibility as a parent. Nevertheless, I accept that she had acted on what she thought was appropriate advice at the time. The advice was, in fact, wrong, but she was, particularly given her language difficulties, in my opinion entitled to rely upon what she thought was appropriately authoritative advice.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family
The mother alleged the father was verbally abusive to her during the marriage. He blamed the mother for his need to take anti-depressant medication. She recalled various times during the marriage when he made degrading and controlling remarks towards her, such as “You are a bad mother”, “You are a fucking bitch”, “You are worth nothing”, “No man will ever love you as much as I do”, “You’re such a weak and horrible woman. You make me go through all this shit.”[110]
[110] Mother’s affidavit, filed 30 May 2012, [46].
The father denied he said those things to the mother.[111] In fact, the father alleged that during the relationship, it was the mother who made “cruel and inappropriate comments” (though he gives no evidence of what the specific comments were), who spat in his face and threw hot tea and coffee at the father.[112] The mother, in fact, conceded that she spat on the father on one occasion. She said she did this when she “ran out of English words”.[113]
[111] Father’s affidavit, filed 20 June 2012, [106].
[112] Father’s affidavit, filed 20 June 2012, [107].
[113] Exhibit J1, 13.
The father, on 31 October 2011 entered into an undertaking not to behave in a harassing manner towards the mother and not to harass or intimidate the mother. That undertaking applies for 24 months and will expire at the end of October 2013.[114]
[114] Mother’s affidavit, filed 30 May 2012, annexure G.
The parties no longer live together and communicate through email. The mother’s evidence is that email communications have been civil. Any distress caused by remarks such these would no longer appear to be an issue because the remarks are not being made.
The mother also alleged that she saw an axe in the boot of the father’s car. It appeared that the mother implied she was afraid when she saw this axe and, after enquiring about why it was there, the father said “leave it there, if you touch it, there will be consequences.”[115] The father denied there was an axe in his car and denied that he said those words.[116] I make no finding about this, given the scant evidence available. Even if the father did keep an axe in the boot of his car, there is absolutely no evidence that he would use this to hurt the mother or the children.
[115] Mother’s affidavit, filed 30 May 2012, [49].
[116] Father’s affidavit, filed 20 June 2012, [109].
There was an allegation made by the paternal grandmother that the mother had attempted to drug the father with Valium. The father did not seek that the children live primarily with him and was content that the mother be the primary carer of the children until the very end of the proceedings. His change of mind was not explained or supported by any new evidence or by any submissions explaining his change. I find it incredible, as counsel for the mother pointed out in cross-examination, that if the father had been drugged by the mother, he would have been content to have her be the primary carer for their children. I reject the allegation that the mother did this.[117]
Section 60CC(3)(k) – any family violence order that applies to the child or a member of the child’s family
[117] Proceedings, 9 May 2013, cross-examination of the father.
As a result of the incident on 27 March, the mother obtained a DVO against the paternal grandmother and that order was made on a final basis (without admissions) on 26 July 2011.The terms of the DVO do not affect the parenting orders[118] as neither parent seeks that the paternal grandmother facilitate changeover or that the paternal grandmother be restrained from coming into contact with the children.
Section 60CC(3)(l) – whether it would be preferable to make an order that would be least likely to lead to institution of further proceedings
[118] Mother’s affidavit, filed 30 May 2012, [52] and annexure F.
It is in the best interests of the children to make final orders in this matter, to provide them with certainty about their future.
Section 60CC(3)(m) – any other factor the Court considers relevant
If the children continue to live in Australia, they will live with the mother (on either party’s application). The mother currently lives in ACT Department of Housing accommodation. In Canberra winter, the mother and the children experience heating issues in that accommodation.[119]
[119] Mother’s affidavit, filed 19 April 2013, [57] to [60].
If the children and the mother relocate to Sweden, they will live in the mother’s home town, which is where the maternal grandparents currently live. The maternal grandparents are building a new home for themselves on the land adjoining their current home. If the mother and children move to Sweden, they would be living in the maternal grandparents’ old home and the maternal grandparents would live in their new home which is only about 50 to 75 metres away.[120]
[120] Mother’s affidavit, filed 19 April 2013, [62].
The mother suffers from epilepsy and will only be able to renew her driver’s licence if she remains “fit free” for six months.[121] The mother had a fit in February this year[122] and cannot drive for six months. At the end of six months she will go to the doctor to see whether she can drive again.[123] The mother will be the primary carer for the children on either party’s application. If the mother remains in Canberra, it will be very difficult for her to take the children to and from school and to any extra-curricular activities without a car. The mother currently takes the children to school by bus, and they need to take two or three buses. The mother always accompanies the children because they are so young.[124]
[121] Mother’s affidavit, filed 19 April 2013, [36].
[122] Mother’s affidavit, filed 19 April 2013, [18] to [20].
[123] Proceedings, 8 May 2013, cross-examination of the mother.
[124] Proceedings, 8 May 2013, cross-examination of the mother.
In Sweden, the children’s school is about 5km from the maternal grandparents’ home and the children could ride their bikes or take the bus to school. There are before-school and after-school care facilities available.
A contentious issue in these proceedings was the mother’s ability to find employment in Australia. … She cannot work in Australia because her qualifications are not recognised in Australia and her qualifications do not qualify her to be employed in aged-care or for her to be a carer. She has not yet made any enquiries about converting her qualifications in Australia.[125]
[125] Proceedings, 8 May 2013, cross-examination of the mother.
The mother has made some enquiries about employment prospects in Sweden. She knows people in a nearby town to Town S who could assist in getting her a job. She would earn approximately $3,570 per month.[126]
[126] Proceedings, 8 May 2013, cross-examination of the mother.
I accept that it is more likely than not that if the mother returns to Sweden that she is likely to be employed and, if she is, she will be better able to provide financially for the children.
The child N has been diagnosed as dyslexic. The mother has made enquiries of primary school facilities in Town S and ascertained that there are “special needs” teachers, psychologists and registered based at the school, available to provide support and services to children as required.[127]
[127] Mother’s affidavit, filed 30 May 2012, [43].
Parenting orders
In this matter, it is obvious that the children have much to gain from each of their parents and it is a source of disappointment to me, and I am sure, a source of sadness to the children, that this will not be able, easily, to be accomplished. There is no doubt that if the mother stayed in Australia, the children would have the advantage of each of the parents having reasonably frequent time with the children.
The first question I consider is whether it would be in the best interests of the children to live with the mother and spend time with the father or whether it would be in their best interests to live with the father and spend time with the mother. Based on the above analysis of the s 60CC factors, I find that it would be in the best interests of the children to live with the mother. The most significant factors in my decision are:
a)The single expert’s opinion, which I accept, is that the father would not function optimally as a majority care parent because of his ongoing psychological vulnerabilities.
b)The father’s work commitments may mean he is not available to be able to care for the children. Consequently, the paternal grandmother would be responsible for caring for the children at times. The single expert commented that increased exposure to the paternal grandmother may put the children in a situation “where they feel increasingly torn by their loyalties to different family members”, given the paternal grandmother’s acrimonious relationship with the mother, of which the children are aware. This is not a situation which would serve the children’s best interests.
c)The child N is closely attached to the mother and the child X is equally attached to both parents.
d)The mother is likely to comply with court orders for the children to spend time with the father.
Although the single expert expressed concerns about the effect on the children if they were to relocate to Sweden, I am satisfied that the mother and the maternal family would be available to assist the children with that transition. The mother is a capable parent, despite her recent mental health issues. If the mother were to move to Sweden, she would have the emotional support of her family, her physical and financial situation would improve and this can only improve the quality of parenting. The maternal grandparents, from the evidence, love the children. Together the factors are in place for the mother and the maternal grandparents to be able to assist the children in making the transition from living in Australia to living in Sweden.
I am satisfied that children should live primarily with the mother, whether she be in Sweden or Australia.
The question then arises as to whether the mother and children should live in Sweden or Australia.
I find that the children would be better off living primarily with their mother in Sweden. A most significant factor affecting my decision is that, on the single expert’s opinion, the mother’s mental health is precarious and, if she stays in Australia, would be at significant risk of suffering major depressive disorder and anxiety disorder. She would also have much better emotional support and opportunities for financial establishment in Sweden than in Australia. It is not in the best interests of the children for their primary carer to be suffering from these mental health issues or to be isolated or to be in financial hardship. The single expert was also of the view that the mother would be able to parent more effectively in Sweden. This factor, combined with the findings that the children have a close attachment relationship with their mother, that N’s wish is to move to Sweden, that the children have good relationships with their maternal family, that the mother is likely to comply with court orders, that the father has work commitments which may impede on him personally being able to care for the children, are enough to support a decision for the mother to relocate.
However, there is the issue of the child X’s desire to be with the father and, importantly, the single expert’s opinion that if the children were to move, the father would likely suffer a period of depression which would negatively affect his ability to function occupationally and, perhaps, socially. The single expert goes on to say that the children would be “expected to be aware that their father was deeply upset about not being in closer proximity to them” and the sense of guilt this may engender in the children could have adverse impacts on their relationship with the father. The single expert was also very concerned that the maternal grandfather would replace the father as a father figure. The detriment to the children in having their primary carer suffer the things described above outweighs the detriment to them if these things happen to the father.
The orders I propose to make will provide that the children live with their mother and that she be permitted to relocate with the children to Sweden. Essentially, this is an order denying the injunction prohibiting her movement.
I will make an order that, immediately upon relocating, the mother inform eh father verbally and in writing of the children’s new address in Sweden together with all relevant contact details, including telephone, facsimile, email and mobile phone. The mother shall also be required to notify the father of any changes to those details. This order will enable the father to be able keep in touch with the children while they are in Sweden.
The mother seeks that there should be equal shared parental responsibility and, given the significant change for the children in their living arrangement, it seems to me this would ensure the parents maintain and are obliged to maintain some communication and cooperation about the major factors affecting the children’s lives. The mirror orders to be brought into effect in Sweden should reflect this principle even if it might be known by a different name in accordance with Swedish law.
However, I will make an order for the mother to have sole parental responsibility in relation to decisions relating to the children’s schooling, on the condition that the mother will keep the father informed of the children’s progress at school and the particulars of their enrolment. It is sensible and practical for the mother to have sole parental responsibility in this regard because the children will be attending school in Sweden, the mother will be with the children on a day-to-day basis and have knowledge of the schools available in Sweden.
The mother seeks orders that the children visit their father by her bringing them to Australia every two years for not less than 21 days, to include Christmas Day. I shall make an order to that effect. She seeks further that the father be free to travel to Sweden to spend time with the children by some sort of prior agreement. I will make an order to that effect as well. However, I make the following comments. There may be some advantage in the children’s travelling to Australia with their mother every year, with the father’s paying the cost of her travel with the children and the children’s costs of travel on the alternate year. In essence, this means the mother will pay for one year and the father for the next. The mother’s accommodation should be her own responsibility in Australia in each event. Such an arrangement would have the effect of providing the children with a greater connection with Australia and would also enable them to spend more time with their paternal grandmother and their father’s family. If that is not economically feasible, it may be that the father might be accompanied in his trips to Sweden by his mother on some occasions so that the children can continue that relationship. I leave this, however, for negotiation between the parties.
The mother seeks to facilitate communications by Skype, Face Time or telephone each Monday, Wednesday and Sunday or such other days as may be agreed between 4pm and 6:30pm Swedish time. I shall make an order accordingly. She provides, in her Minutes of Orders Sought, for an alternate arrangement if that should fail on any occasion and it is a sensible order which I will also make.
The mother also makes provision for what would happen if the father chose to go and live in Sweden. While the arrangement she proposes would make sense if that were to occur, I do not propose to mandate that alternative as the father shows no indication that’s what he would or could do.
Relevant law in relation to property matters
To some extent, the final determination of matters relating to property must await the parties’ opportunity to assess the orders I have made about where the children will live. Accordingly, while I will set out some findings I make in relation to property matters between the parties in this judgment at this point, so far as further submissions and the possibility of further evidence about the individual circumstances of the parties, as they may be affected by s 75(2), will probably need to await a further date which I will provide as soon as possible.
As a result of the High Court decision in Stanford & Stanford[128] and Bevan & Bevan[129] I should not make an order altering the interests of properties of the parties unless it is just and equitable to do so. The parties are in dispute about matters relating to property and, given the fact that they have two children who will be affected by those orders and given the fact that they will be separated by a significant distance as a result of the orders I have made about the children and given that there will not be the same opportunity that would occur in some cases for the parents to share the financial and physical burden of the care of the children, it is just and equitable that there should be an order altering the interests of the property of the parties to some extent.
[128] (2012) 293 ALR 70.
[129] [2013] FamCAFC 116.
In determining that fact, I am necessarily obliged to consider at a more detailed level, the matters set out under s 79(4)(a), (b) and (c) and then to consider the relevant matters under s 75(2) incorporated by reference to s 79(4)(d), (e) and (f).
Contributions
Neither party had very much property at the commencement of the relationship.[130]
[130] Mother’s affidavit, filed 30 May 2012, [75].
Financial contributions
During the marriage, the father was the income-earner and the mother was the home-maker and primary carer for the children.
The father gave the mother funds for food and other household items. The mother asserts that it was “common” for the husband to give her only $80 per fortnight. The mother found it difficult to provide for the family with these limited funds and she accessed funds in a Swedish debit card account to in emergencies. Because of the limited funds provided by the father to her, the mother, at times, could not buy food and often bought clothing from second hand and charitable stores. The mother asserts that, by 2010, she sought food and health products from charities.[131]
[131] Mother’s affidavit, filed 30 May 2012, [24].
The mother’s parents provided some financial assistance by paying for much of the children’s clothing and the mother’s clothing.[132]
[132] Mother’s affidavit, filed 30 May 2012, [24].
The father denies that he only gave the mother “limited funds”, saying she had access to the parties’ account (in his name) through the use of an EFTPOS card.[133]
[133] Father’s affidavit, filed 20 June 2012, [66].
It is the mother’s assertion that the father used his money “as he wanted”, spending it on discretionary items such as takeaway meals, alcohol, taxis and plants for his office. When the mother asked the father about the purchase of such discretionary items, he would say they were gifts from work or were purchased with money from petty cash.[134] The father, on the other hand, claims that his salary was paid into his account and he used those funds to pay for rent and utilities including electricity, phone and internet bills.[135]
[134] Mother’s affidavit, filed 30 May 2012, [25].
[135] Father’s affidavit, filed 20 June 2012, [68].
The maternal grandparents provided financial assistance in other ways. They paid for the mother’s and the children’s travel to Sweden in mid-2008 and in mid-2010.[136] The father disputes that the maternal grandparents paid for these trips. He says he contributed a “substantial” amount and deposited substantial cash payments into the mother’s Swedish account for the duration of her stay.[137] Notwithstanding that the mother would categorise the contributions from her parents as substantial and no doubt the father would say that his contribution was substantial, overall it seems that the provision of funds by the maternal grandparents in this regard would not be a factor which would significantly affect the determination of the contributions of the parties.[138]
[136] Mother’s affidavit, filed 30 May 2012, [36].
[137] Father’s affidavit, filed 20 June 2012, [94].
[138] This is notwithstanding that it could properly be categorised as a Gosper v Gosper contribution for these purposes.
The paternal grandmother also provided some financial assistance to the parties. She alleges that the mother “ran up” credit card debt of $13,000 and there were school fees owing to the amount of $8,000. The paternal grandmother paid both of those debts for the parties.[139] The mother denies she used credit cards, saying she does not believe in them.[140] It is difficult, if not impossible, to make any firm determination about the truth of the origin of the credit debt, but in the overall scheme of a property division between the parties, very little turns on whether or not the paternal grandmother made the contributions she asserts she did. And that is so, even if it were to be determined (but I cannot) that the mother was responsible for the creation of the debt.
[139] Exhibit J1, 34.
[140] Mother’s affidavit, filed 19 April 2013, [159] and [160].
Non-financial contributions to property and contributions to the welfare of the family
I am prepared to accept that each of the parties made non-financial contributions to the property of the parties and that the principal contribution to the welfare of the family was the mother as a result of the father’s dedication of his activities to earning income and providing financially for the parties. Overall, I would find that the contributions of the parties would be equal.
Adjustments
Section 75(2)(b) – the income, property and financial resources of each party and his or her physical and mental capacity for appropriate gainful employment
At present, the father’s income, property and financial resources are far greater than those of the mother. The mother is currently receiving only Centrelink benefits of $518 per week as income, while the father earns an income of $1,415. The mother’s property at present comes to a value of $5,340 and is comprised of savings in a bank account, household contents and a car. The mother has no superannuation, while the father has superannuation of $14,685.51.
The mother’s capacity for appropriate gainful employment is improved by her return to Sweden. I find that it is more probably than not that she will have a capacity to earn a reasonable income in Sweden.
The father’s physical and mental capacity for appropriate gainful employment. He held various jobs during the parties’ relationship and currently works in a personal services industry. There is no evidence to suggest the father cannot obtain employment in the future and be able to support himself.
I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 14 August 2013.
Legal Associate:
Date: 14 August 2013
Annexure A
Final orders sought by the respondent father
Assuming the Court does not permit the mother to change the children’s place of residence to [Town S] in Sweden, the respondent father seeks the following orders:
1.1That the parties have equal shared parental responsibility for the care, welfare and development of the children …
1.2That the children live with the father.
1.3That the children spend time and communicate with the mother as agreed between the parties.
1.4That the parties have sole responsibility for making decisions about the day to day care, welfare and development of the children during the periods when the children are living with them except as otherwise provided for in these orders.
1.5That the children spend time with the party with whom they do not live:
Each alternate weekend from 5:00pm or after school on Friday until 5:00pm on Sunday;
Each Wednesday from 5:00pm or after school until 8:00am or school commencement on Thursday.
1.6Failing other agreement from time to time, the children shall be picked up and dropped off from the home in which they live by the party with whom they are about to spend time.
1.7That the children spend time and communicate with the party with whom they do not live as follows:
1.7.1For one half of each term school holiday period as agreed, and in default of agreement, for the first half in odd years and the second half in even years;
1.7.2For one half of the Christmas school holidays as agreed and in default of agreement, for the first half in odd years and the second half in even years. Except that from 5pm on the evening of Christmas Eve to 5pm on Christmas day. The children will spend Christ mas Day with the father and from 5pm on the evening of 23 December to 5pm on Christmas Eve. The children will spend Christmas Eve with the mother;
1.8For one half of the Easter long weekend as agreed and in default of agreement, for the first half in odd years and the second half in even years.
1.9That notwithstanding anything else in these orders, the children will spend from 5pm on the evening of Christmas Eve to 5pm on Christmas day with the father. That notwithstanding anything else in these orders, the children will spend from 5pm on the evening of 23 December to 5pm on Christmas Eve with the mother.
1.10That notwithstanding anything else in these orders, the children will spend time with the mother on the Swedish holidays of Valborg and Midsummer.
1.11That notwithstanding anything else in these orders, the children will spend ANZAC Day being 25 April with the father.
1.12That notwithstanding anything else in these orders, the children will spend Father’s day and Mother’s day:
If any of these days fall on a weekend when the children are not already spending time with that party, then the children will spend time with that party from 5:00pm on the Saturday before the day until 5:00pm on that day.
1.13That notwithstanding anything else in these orders, the children will spend Children’s birthdays:
On the children’s birthdays the children will spend time with the part that they are not already spending time with for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non school day.
1.14That notwithstanding anything else in these orders, the children will spend Parent’s birthdays:
On each of the party’s birthday the children will spend time with that party if not already spending time with them for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non school day.
If the Court does permit the mother to change the children’s place of residence to [Town S] in Sweden, the respondent father seeks the following orders:
2.1 That immediately upon the mother and the children relocating and changing residence, the mother shall notify the father both verbally and in writing of the new address of the residence of the mother and children in [Town S], together with all other relevant contact details including telephone, facsimile, e-mail and mobile phone, Skype and the mother agrees that she will notify the father within 24 hours of any changes to those details.
2.2 The husband spend time with the children as follows:
2.2.1In Australia on 1 occasion every year for not less than 6 weeks, on every occasion to include Christmas Day, with the mother travelling to and from Australia with the children and the mother bearing the costs of the children’s air travel to and from Sweden on each such occasion.
2.2.2In Sweden on condition that he gives notice to the mother 21 days in advance of any contact period with contact being for a minimum of 21 days.
2.2.3By Skype communication on every second day starting from the first Monday in [Town S].
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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