Leahy and Colliss
[2017] FCCA 1992
•23 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEAHY & COLLISS | [2017] FCCA 1992 |
| Catchwords: FAMILY LAW – Parenting – relocation – competing live with applications – three children aged 11, 9 and 4. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 65D |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Sayer & Radcliffe & Anor [2012] FamCAFC 2096 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR LEAHY |
| Respondent: | MS COLLISS |
| File Number: | DUC 93 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 15 – 16 March 2017 |
| Date of Last Submission: | 16 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 23 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Battley |
| Solicitors for the Applicant: | Warwick McCarthy & Co Solicitors |
| Counsel for the Respondent: | Mr Kenny |
| Solicitors for the Respondent: | Campbell Paton & Taylor |
ORDERS
The parties shall have equal shared parental responsibility for the children:
(a)X, born on (omitted) 2006;
(b)Y, born on (omitted) 2009; and
(c)Z, born (omitted) 2012
The children shall live with the mother.
The mother is permitted to relocate with the children from (omitted), New South Wales to the (omitted)/(omitted) area, New South Wales area with the children.
Prior to the relocation, the children shall spend time with the father in accordance with the time provided for in the Interim Orders made on 7 September 2016.
Following relocation the children shall spend time with the father as agreed between the parties and failing agreement as follows:
(a)Subject to order 6(a) during school terms for one extended weekend from the conclusion of school on Thursday until Monday afternoon with the children to be returned to the mother by no later than 7pm and such contact shall occur on New South Wales gazetted long weekends whenever possible and if not agreed, on the fourth weekend of each school term.
(b)During New South Wales gazetted school holidays:
(i)For the first half of the April, October and December/January school holiday periods in even numbered years and the second half of such school holiday periods in odd numbered years; and
(ii)For all of the June-July school holidays with such period to commence from 12pm on the Saturday immediately following the conclusion of the school term and conclude at 12pm on the Saturday immediately preceding the resumption of school.
(c)At all other times as agreed.
Changeover shall occur as agreed between the parents, and in the absence of agreement:
(a)During school terms and to facilitate the children’s time with the father pursuant to Order 5(a) the parents shall cause the children to travel by aeroplane between (omitted) and (omitted).
(b)To implement Order 6(a), the parties shall share the cost of the children’s return airfares from (omitted) Airport and (omitted) equally and for that purpose:
(i)The mother shall be responsible for booking and paying for each alternate return flights of the children and accompanying adult and the father shall be responsible for booking and paying for any other return flights of the children and accompanying adult;
(ii)The parent who books and pays for the flights shall give the other parent at least 30 days’ notice and provide the booking details;
(iii)The parent who books the flight shall endeavour to book the departure flight after school on Thursday and return flight not later than 5pm Monday.
(c)During school holiday periods, changeover shall occur at the car park of (omitted) Supermarket.
The parents shall have telephone communication with the children as agreed, and failing agreement as follows:
(a)When the children are in the mother’s care, the father will have Skype communication with the children between 6pm and 6.30pm on Tuesday, Thursday and Sunday night, and to facilitate this order the mother will ensure that she sets up a Skype account with computer access to the children and notify the father of the account name;
(b)When the children are in the father’s care, the mother will have Skype communication with the children between 6pm and 6.30pm on alternate nights and to facilitate this order the father will ensure that he sets up a Skype account with computer access to the children and notify the father of the account name.
Both parents are restrained from saying anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent or their family and further are restrained from allowing any other person to say anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent or their family.
Each parent shall sign all documents and do all acts necessary to authorise the school or day care at which the children may attend, to furnish both parents with copies of all school reports, school photograph order forms, notices and advices concerning the children and any activities involving the children.
Each parent will notify the other of any change of contact telephone number, or residential address 48 hours prior to such change occurring.
Each parent shall inform the other as soon as practically possible, of any emergencies involving the children whilst the children are in the relevant party’s care.
In the event that the children or any of them are required to attend a medical professional, each party will notify the other within 48 hours of the attendance, and will advise as to the need for that attendance, the time and place of such attendance, and the outcome of such attendance, and if a medical report is available, the party will provide the other party with a copy within seven days of receipt.
The parties are restrained from changing the children’s school until the conclusion of the 2017 school year except by agreement in writing between them or further order of the Court. The Court notes that the restraint is not intended to operate to prevent the parties from applying for enrolment at appropriate schools for the children to commence in the 2018 school year.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Leahy & Colliss is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DUBBO |
DUC 93 of 2016
| MR LEAHY |
Applicant
And
| MS COLLISS |
Respondent
REASONS FOR JUDGMENT
Introduction
The three children the subject of these parenting proceedings have lived in (omitted), New South Wales, their whole lives. Their parents separated in May 2014 and since separation, they have been living with the mother although spending significant and substantial time with the father. For three years after separation, the children were spending every weekend with the father and time during the week with the mother. However, in September 2016, orders were made by consent providing for the children to live with the mother and spend five consecutive nights each fortnight with the father.
The mother is engaged to marry. She wants to move from (omitted) and start a new life with her current partner in the (omitted)/(omitted) area. She proposes that this move occur either towards the end of 2017 or the end of 2018.
There are competing live with applications before the Court, that is, each of the parties is pressing the Court for orders that the children live with him/her in circumstances where the mother is relocating.
The Law
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of the proceedings.
The children’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[1]
[1] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[1] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[2] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[3] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because 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.[4] Consideration does not mean discussion.[5]
[2] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[3] [2009] FamCAFC 92
[4] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[5] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
The application of the statutory provisions in the context of relocation cases has been discussed by many authorities. The Full Court in Malcolm & Munro[6] approved what was said by Justice Boland in Morgan & Miles[7], particularly at paragraphs 79 to 81, where her Honour said as follows:
[6] (2011) FLC 93-460
[7] (2007) FLC 93-343
79. In considering whether the child should live with the parent who proposes to relocate a court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
that the child’s best interests remain the paramount but not sole consideration;
that a parent wishing to move does not need to demonstrate “compelling” reasons;
that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
In Sayer & Radcliffe and Anor[8] the Full Court discussed the approach to be taken when a parent is seeking to relocate as follows:
It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are 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 ... 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 relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)
[8] [2012] Fam CAFC 209 at [47]
Furthermore, the High Court[9] has recently stated, being a reminder of the discretionary nature of parenting decisions, that[10]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
Relevant Facts & Evaluation
[9] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]
[10] These were obiter comments in the context of an appeal with considerations different to the present case
The Father
The father was born on (omitted) 1967. At the time of the hearing he was 50 years old.
The father lives in the former matrimonial home, a property the father leases from a family member. When the children are spending time with the father, they do so in the home they grew up in.
The father is single and works part-time as a (occupation omitted) at (omitted) Hospital.
The mother
The mother was born on (omitted) 1970. At the time of hearing she was 46 years old. She was born in the (country omitted) and immigrated to Australia in (omitted) 1975. The mother has been an Australian citizen since (omitted) 1998.
The mother lives in rented accommodation in (omitted) with the children.
She is a (occupation omitted), currently employed on a full-time basis by (employer omitted) as a (occupation omitted). For years, the mother ran her own (business omitted) in (omitted).
The mother is engaged to marry Mr M, with the wedding date being set for (omitted) 2017.
The relationship
The parties commenced living together in 2000. They were married on (omitted) 2002.
The parties separated in May 2014, and a divorce order was made on 29 December 2016.
Throughout the parties’ relationship the mother was an extremely hard worker, not only in the home but also in her business. When the children were little, as each of them was born and in their very early years, she juggled the burden of running a (business omitted), with breastfeeding and rearing children. When the children were babies, she would take them to work with her.
The mother was the main income earner throughout the relationship.
Early in the parties’ relationship the father worked as a (occupation omitted), and later began working in his current role. The father was involved in the children’s care from early on and he also did some of the housework.
As the children started attending day-care both parents were involved in transporting the children.
Both parties were hands-on parents and involved in the daily running of the household. They shared tasks such as changing nappies, cooking, making medical appointments and taking the children to them as necessary, readying the children for school and assisting and supervising homework, reading and school projects.
The children
There are three children from the parties’ relationship:
a)X, born on (omitted) 2006;
b)Y, born on (omitted) 2009; and
c)Z, born (omitted) 2012.
X commenced school in 2010. She is currently in Year 6 at (omitted) Primary School in (omitted).
She is described by her mother as kind and gentle, and as a talented (hobby omitted). X came first in the (hobby omitted) championships for under 12’s in January 2017, and in 2016 she progressed to state level competition.
The father speaks proudly of X’s sporting achievements in his evidence.
In 2010 X was diagnosed with celiac disease. While both parties travelled to Sydney to attend the initial appointment with the paediatric gastroenterologist, it is the mother who has since that initial appointment taken the child to Sydney for all of the follow-up appointments, and has paid all costs of the appointments including travel and accommodation when required. It is the mother who arranges all aspects of the specialist appointments, including appointments with the child’s general practitioner to obtain referrals when necessary. The mother is actively involved in encouraging X to have a healthier lifestyle in accordance with advice received from a dietician as well as the gastroenterologist. The mother is concerned that the father does not monitor X’s diet, nor that he encourages healthy eating habits.
Y is currently attending the same primary school as X. He is in Year 2. He is described by the mother as an energetic and affectionate boy with an enquiring mind. He is said to be engaging with people. The father says that Y is following in his sister’s steps and developing an interest in (hobbies omitted). Y plays (hobbies omitted) during the year.
The mother describes Y as struggling since separation. She reports that at various times he has said to the mother “It is your fault you and Dad split up. You make all the rules. It is not fair.” The mother also reports the child saying, in the first twelve months after separation, things such as “Dad was so sad, He is missing us. He was crying and I was crying too.”
In mid-late 2016 and continuing, Y has been acting out at school. He has been described by his teacher as having “dark” behaviours, and that he has at times been generally non-compliant and defiant.
Y had an in-school suspension in early 2017, this occurred shortly before the final hearing. In a letter dated 6 March 2017, from the school to the parents, the Assistant Principal reports that Y shouted and screamed “everything is stupid, no one cares, no one will tell me what to do.”
The father says that he has observed Y’s behaviours to escalate following the mother showing him and his siblings “their new house” in early 2017. The father says that “irrespective of this” he is committed to trying to deal with Y’s behaviours. He does not outline in his Affidavit what that commitment entails.
Y developed a stutter in 2014, and the mother arranged for him to attend a speech pathologist. The parents each attended some of the sessions, however, the father failed to attend at times. The father also failed, when Y was spending time with him, to ensure that the child completed his speech pathology homework each time.
The speech therapy for Y ceased in about early 2016. The mother reports that the child, despite his significant progress, continues to stutter at times, and that this was more noticeable when he returned to the mother’s home after spending time with the father during the 2016/2017 summer school holidays.
When the parties separated Z was only 18 months old, and still being breastfed. After separation and due to the parties’ inability to co-operate about feeding times, the mother stopped breastfeeding.
Z has difficulties in settling down to sleep and has had these difficulties since he was a baby. In 2015, the parents were seeing an occupational therapist in respect of Z’s sleeping difficulties. The tendered notes indicate that the father did not identify sleeping as a goal for Z and that he felt that Z manages well when he is in his care as he is getting the attention as needed.
The parents have quite different sleeping arrangements for the children at their respective homes, which results in significant disruptions to established sleeping routines. This seems to be having quite a significant effect on Z.
The mother describes Z, after returning from spending time with the father, to go through stages of different emotions. At first he is rejecting of the mother and then being clingy and wanting to sleep with her for comfort at night. It is the mother’s belief that the inconsistency of routines in different households and the ongoing parental conflict are having a negative impact on Z.
Z attends a local day care facility in (omitted). He is due to commence formal schooling from the start of the 2018 school year. Z requires speech therapy.
Dr V in the Family Report assessed the children as being particularly vulnerable, given the combination of a high level of stress rising from the dispute and the biological disposition they might have for mental health and behavioural fragility. She noted[11] as follows:
Already, Y and Z are externalising their distress and showing signs of developmental and behavioural issues and Z in particular seems to have low resilience. X, on the other hand, is internalizing her feelings.
[11] Family Report Paragraph 121
The children’s views and their relationships
The children and parents were interviewed by Dr V on 5 December 2016. On the day of the interview, they arrived for the appointment accompanied by the mother and Mr M.
The children hugged the father when they saw him and went to McDonald’s with him while the mother was being interviewed.
Taking the children to McDonald’s is normally a treat for the children.[12]
[12] T:68-69
It is important to record some of the observations in the Family Report:
57. X… presented as a polite child who expressed herself articulately. She stated that she thought the interview was to discuss the family “drama” and spontaneously disclosed that she would prefer to stay in (omitted) with her friends. She added that ultimately she understood the decision would not be hers.
Dr V opines that X was unambiguous in her views that she wishes to live in (omitted), and that her views were expressed with a reasonable level of maturity and should therefore be given some weight. According to Dr V, X’s views appeared to be her own and she did not seem to be coached to express those views. Dr V further opines that X is struggling with being valued in both households, and that she is likely to experience considerable resentment if she is removed from the school environment which currently provides her with so much support.
Neither Y nor Z expressed any views about their preferred place of residence, nor with which parent they would prefer to live.
The Full Court of the Family Court in R v R[13] has said:
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
[13] [2000] FamCA 43; 25 Fam LR 712 at 724
X, while 11 years old and seemingly mature, is only one of the three subject children. Her views about living in (omitted) is certainly a matter upon which the Court places some weight, but in context. The view was expressed at a time when the mother’s move to (omitted) was not a certainty, and in the context of applications which were different to the ones which the Court heard at final hearing. There is no evidence which suggests that X’s expressed view was to remain living in (omitted) with the father if the mother moves to (omitted). It was given in the context of the mother possibly staying in (omitted). At the time of the interviews, the mother’s position was that she would not leave (omitted) without the children. That position changed after the Family Report interviews and come final hearing.
It is difficult to understand why X would ‘spontaneously disclose’ that she would prefer to stay in (omitted) with her friends. Dr V was asked about this in cross-examination[14]:
And I take it by that you mean she just out with it, not in response to any question she was asked or any suggestion you made; she just spontaneously volunteered it; is that right?‑‑‑Yes. It was in the – in the context of – of her living arrangements and she – she disguised[15] that – that – her – her life is working for her in (omitted) and that’s where she would like to stay.
[14] T: 165 line 36-42
[15] It is likely that this is a typographical error in the transcript and that the actual word used was “discussed”
The spontaneity of X’s disclosure has to be looked at in the context of all of the other statements she made to the Family Report writer, and the fact that she had just been having a “treat” lunch with the father. While Dr V indicated that she did not get the impression from the children that they had been coached or influenced, some of the other disclosures to Dr V by X are not factually correct and some of the conclusions which Dr V makes in the Family Report are difficult to understand on the evidence before the Court. These are discussed further below.
Dr V’s opinion is that X has a stronger relationship with her father than she does with her mother (these are not the words used in the Report). That opinion seems to be based on some conclusions which the Court finds difficult to accept on the facts. For example, the Court could not find in the report X expressing any “fear” of the mother’s so called “ranting and raving”.
According to Dr V, X:
demonstrated some reservation about her mother’s capacity to emotionally regulate and expressed fear of her mother’s ‘ranting and raving’. She referred to the way her frustration builds to the point that she challenges her mother which results in behaviour which she insightfully described as ‘disrespectful’.
If X is yelling at her mother as she says she is, then the behaviour is disrespectful. She clearly feels comfortable enough with the relationship to challenge her mother openly. If she was fearful of her mother’s “ranting and raving” to the extent suggested, it is then improbable that she would be so open in challenging her mother.
It is also likely that X’s relationship with the father is “less confrontational” as described by Dr V, because the father’s parenting style is extremely relaxed. The father seems to be the children’s friend[16] while the mother is the parent. While the mother will need to employ some different skills in dealing with X as she grows into a teenager, same would no doubt apply to the father.
[16] See for example: Family Report paragraph 73 “child like in his interaction with the children” ; paragraph 77 where Z’s child care has observed the father “to be a mate rather than a father figure to the children”
In relation to Y, the Family Report records as follows:
67. Y nominated his father and his mother as the people he loves and those who give him the best hugs. He described his siblings as his “enemies” and said he does not love them… Y described his sister as “mean and angry” and his brother as a “little brat and a very sore loser.”
…
71. At the end of the observation session [with the mother, Dr V]… asked whether this was the way the family normally interacted together. Ms Colliss stated it was but X contradicted her and said, in front of her mother, [that]… their interaction was often “chaos all the time at Mum’s house.” After Ms Leahy left the room, X and Y agreed that it was chaotic at their mother’s home and the children fought and argued with each other and their mother. Y said that it was “only sometimes” chaotic in their father’s home.
The descriptions the children give of their experiences in the two households are indicative of the differing parenting styles they experience and the conflicting nature of same. It is very difficult for these children to go between the two homes where the expectations of the parents are so different.
In Dr V’s opinion, X also “perceives Mr M as feeling threatened by the children seeking their mother’s affection…”
Mr M was cross-examined. It was not suggested to him that he was somehow jealous of the attention the mother gives to the children. Indeed his evidence in chief was not challenged in any significant way, and such evidence described a ‘close’ relationship with the children. The observations of Dr V seem to be supportive of a close relationship between the children and Mr M. The Court did not get the impression from seeing Mr M in the witness box that he was threatened by the children seeking their mother’s affection, rather he impressed as a man who is supportive of the children and their relationship with the mother.
The mother’s ‘capacity to emotionally regulate’ was not the subject of any cross-examination. X said to Dr V that it was not fun at her mother’s home because she is “yelling at me all the time and stacking me with jobs”. When examined in the context of what occurs at the father’s home, it is understandable why an 11 year old would prefer a household that is “all fun”. The Court does not accept that X’s statement to Dr V is a true reflection of the child’s experiences at the mother’s home.
The children’s inter-relationships are concerning, particularly noting that Y refers to his siblings as his ‘enemies’.
According to Dr V, X disclosed that in both households there are issues with her parents and/or siblings which lack resolution.
The Court finds that the children have loving and established relationships with both of their parents, and strong attachments. It may be that the children have since separation found the father to be the more available parent simply because he is not as busy as the mother is, when one compares the hours of work which each of the parents engages in. The children’s perception of their parents’ availability does not necessarily correlate with the parents’ involvement in the children’s lives, and as explored further in these reasons, each of the parents has been involved to different degrees in the children’s lives.
Parents’ participation in decision making and spending time
It is only since September 2016 that the children started spending time with the mother on weekends after the parties’ separation in May 2014. For a period of over two years they were in a routine where the mother was looking after their weekday needs and the father was looking after their weekend needs. This has resulted in particular patterns being established, such as for example, the father seeming to be the one mainly involved in the children’s sport and weekend activities.
In 2017, the father unilaterally enrolled Y in (hobby omitted) and unilaterally enrolled X in (hobby omitted). He did so without speaking to the mother beforehand, and without knowing whether she consented to the children attending such extra-curricular activities.
Parents’ obligations to maintain the children
The father pays $52 per month in child support and he meets the costs of daily living when they are spending time with him.
The mother pays for the children’s private school fees, day-care fees, out of school care fees, vacation care fees (including when the children are spending time with the father), specialist appointments and speech therapy, as well as the costs of daily living when the children are living with her.
Likely effect of any changes and Practical Difficulty
The changes for the children will be significant and long-lasting given their parent’s cases. There will be some practical difficulties with the children spending time with the non-resident parent simply due to the physical distance between the two homes which is yet to occur.
Advantages and disadvantages of the children remaining in (omitted)
At paragraph 59 the Family Report reads as follows:
59. X spoke about the time she spends in both households. She chose to speak about her father’s household first… X commented that there are lots of board games at her father’s home and a television that works. She said she has a nice bedroom. She added that her brothers sometimes sleep on the couch with their father. X referred to her father’s home as being a place where she can “relax” and “release” as their father does not “rant and rave” or give them too many jobs…
60. … at her mother’s home… she does not like having so many jobs to do and her mother getting “cranky”. She referred to her mother as “ranting and raving”. X reflected that she does not like being disrespectful to her mother but when her mother yells at her she feels she has no option but to yell back… X stated that her mother also confiscates their technology but she sometimes does that for too long…
61. X listed her father, her mother, her paternal aunt, Ms K, Mr M and her brothers as the people she loves. She described her father as a “good joke teller, friendly, funny approachable and courageous if he is lost.” As for the mother, she said she is “cranky, kind, sometimes funny and a bit bossy.” X described Mr M as “sometimes jealous when we’re hogging Mum”…
X’s statement to Dr V about where the children sleep is at odds with the father’s evidence and other evidence in the proceedings.
Even as at June 2015, Exhibit 4 indicates that the father reported that on weekends (at the time the children were spending time with the father every weekend) the family will sleep in the lounge room on the lounge or mattress[17]. The father was noted as liking to encourage this so that the family could spend the night together.
[17] The notes indicate that Z and X shared a room at the father’s home however on weekend that sleep routing and environment is different according to the father
Although the father’s evidence in chief is that when the children are with him that X and Z share a bedroom, and that Y has his own room, he conceded during cross-examination that the children and the father all sleep together on the lounge room floor. While the father deposes that the sleeping arrangements are of recent times and mainly due to the extreme weather conditions in (omitted), this was not his evidence in cross-examination.
In cross-examination the father said that in the last six nights there might have been one or two occasions when he and the children have not all slept together on the lounge room floor and that essentially the sleeping arrangements came about because the children have been under a lot of pressure because “they’ve been told that they will be going away” so the father has tried to “make things as comfortable” as he could.
On balance, the Court finds that the sleeping arrangements where the children have been sleeping with the father on the lounge room floor has been in place much longer than 6 months, and in all probability since June 2015.
The Court finds that a significant part of the reason the children can “relax” and “release” when they are spending time with the father is because all of their homework is done before they go there for the fortnight. It is because they get to fall asleep on the lounge room floor every night watching television. It is because there are very few rules at the father’s home. The father gave the following evidence:
And, sir, this is not necessarily a criticism, but your parenting style has at least partly evolved because you’ve had the kids on weekends, hasn’t it, which is different to the school time? It’s more fun time ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ with you, isn’t it?‑‑‑Yes, it’s all fun – yes, all fun.
That’s what the kids are used to, isn’t it?‑‑‑Correct.[18]
[18] T:54 line 22-30
It is no wonder that the children find the father the more relaxed and easy going parent. However, this is a situation that will not remain so if the children live with the father in (omitted). If the children live with the father in (omitted) and the mother moves to (omitted)/(omitted), it will not be “all fun”. There will be homework and chores for the children. There will be a single parent household for the children, with a parent who has never had their primary care, who is untested and likely to need significant assistance in meeting their needs (as he has to date).
The least change that would happen is that there would be more structured sleeping arrangements:
And do you think that, had your application been granted, and until such time as you decided to change the system – it was a seven/seven arrangement – it would be seven nights on the floor at dad’s, in the lounge room, and seven nights in their bedrooms at mum’s?‑‑‑No. No. I know that they’re going through a fairly torrid time, and until this was sorted I was quite happy to go with that.
Right. Just tell us whether you think that that would be confusing or difficult for the kids if that arrangement had come into force?‑‑‑I had told them that very soon they will be going back to their own beds.[19]
[19] T:53 line 38-46
There will have to be other changes to the routine in the father’s household if the children were to live with him and the mother relocated. For example, the father’s evidence is that currently X and Z share a room, that Y has a room and that the father has a room. Although not the subject of any cross-examination, it is unlikely that an arrangement where X shares a room with her youngest brother would continue into her teenage years. It is therefore likely that there will be a change for Y and Z going forward as well.
Therefore, relaxed lifestyle which the children currently lead while spending time with the father is not something which is sustainable and on the father’s evidence is not something which will continue.
Z will be commencing school in 2018. This means that he will have a significant change come the beginning of next year. It is highly likely that if he remains living in (omitted), and lives with the father, that he will be attending a school different to the one which Y and X currently attend. The father’s evidence is that he cannot afford to pay the school fees and that absent assistance from the mother towards those fees, the children will not be continuing at that school.
At paragraph 58 of the report Dr V recorded:
58. … X said she has many friends who care about her at school. Indeed, she disclosed that she has more fun at school than in either household. When asked to elaborate, X disclosed that it is not fun at her mother’s home [because]… “mum [is] yelling at me all the time and stacking me with jobs” and at her father’s home “the boys getting me in to trouble and them being annoying.” She added that her brothers annoy her in both households.
X is due to complete Year 6 at the end of this year. She will be moving to a new school at the commencement of next year. She will have changes to her friendship groups when this happens. She will be in a new environment. If she is to remain in (omitted), it is possible that some of her current school friends will attend the same school as her.
X will be attending high school in 2018. This means there will be a significant change for her come the beginning of next year. Where her current friends will be going to high school is not a matter which was the subject of any evidence. She is likely to be able to maintain some of her friendships due to the geographical proximity of her current friendship groups, going into high school. However, there was no specific evidence given about X’s interaction with her friends outside of school.
In terms of her involvement with (hobby omitted), if she was to remain in (omitted), it is likely that she will be able to continue with her (hobby omitted). The father is the person who is involved in taking her to such training and the person who is responsible for her starting (hobby omitted) in the first place. It is a matter which is of some importance to her.
It was opined by Dr V that relocation is furthermore “likely to diminish the social capital” the father has to offer the children. It is accepted by the Court that his capacity to remain involved in the children’s daily education and other activities will be curtailed.
There is no doubt that the children will miss their father and the regular interactions they have had with him to date. However, they will still spend time with him on a regular basis and they will still get to enjoy a relationship with him. It might require a little more effort, but the relationship to date has been a strong one, thus being a relationship which can likely be sustained over the physical distance.
Advantages and disadvantages of the children of moving to (omitted)
If the children move to the (omitted)/(omitted) area, they will remain living with their primary carer. While X is almost a teenager, Z is only 4 years old. Primary care is particularly important for younger children.
There are (hobby omitted) clubs in (omitted) and it is likely that X can continue to train if she so chooses. The mother has indicated a willingness, which the Court accepts as genuine, to facilitate X’s sporting interests.
The children have plenty of structure in the mother’s household.
It was opined by Dr V that:
Relocation would signify a significant loss in the continuity of the regular time the children have spent with their father and their paternal extended family and is likely to have enormous impact on those relationships, particularly given their strength. Ms Colliss seems to have limited insight into the impact of this and tends to be dismissive of the children’s relationships with their father and extended family. She considers Mr Leahy to have been somewhat neglectful of the children’s needs, lacking in his supervision, undermining of her and temperamentally inconsistent in the way he manages the children’s behaviour. These were not concerns that worried her sufficiently to have any compunction about shared care arrangements in a household which was the children’s family home during the marriage from the time of the separation until Mr Leahy lodged his application and her desire for relocation became imminent.
The Court, after hearing from the mother during the proceedings, finds that she has significant insight into the impact of the proposed move and is not dismissive of the children’s relationship with the father.
The Court accepts the mother’s evidence that she has come to the conclusion that the current arrangement is not working for the children and that it is detrimental to them. For that reason, she will move – with or without the children – thus causing a significant change to the arrangements which will be, in her view, for the benefit of the children in the long run.
The Court accepts the mother’s evidence that she understands that if she moves without the children they will suffer a significant loss. On balance, the mother has formed the view that this will be easier for the children to bear rather than the continued parental conflict arising out of differing parenting of the children in a manner where they are simply ships in the night passing each other by.
Such thinking shows significant insight. It must have been an extremely hard decision for the mother to make given that she has always been the children’s primary carer.
Parental capacity to provide for children’s needs
The mother is the children’s primary carer.[20]
[20] Family Report paragraph 111
The Court’s impression of the father is that he is at times a needy man who relies on the children for emotional support. He finds it difficult to say goodbye to the children when their time with him concludes, and he finds it difficult to separate his own emotional needs from those of the children.
The notes produced from (omitted), being the day care centre where Z attends record as follows:
O said Daddy will be sad if we go you know C, M said. C said I’m sure you will see Daddy often, O said no M said we have to go with Mum. (2 February 2017)
The children have never primarily lived with the father. While it is correct that he has been an involved parent such involvement has always been with the bulk[21] of the children’s needs being met by the mother.
[21] By ‘bulk’ is meant ‘majority’ but not the vast majority.
Dr V opines that if the children were to remain living in (omitted) with the father, with the mother moving to (omitted), then the father would need to:
step up into a much more significant care giving role. He is untested in this regard… it would be recommended that he avail himself of the counsel of a therapist/family support worker.
The children have been struggling in different ways since separation. Dr V was somewhat sceptical of the mother’s statements to her about how much Z and Y are struggling and the behaviours they have been exhibiting, on the basis of her telephone conversations with the day-care centre and the school. The mother’s evidence was not challenged in cross-examination in respect of these matters. The Court finds that the mother’s observations of the children’s behaviours are in all likelihood more accurate than what was understood by Dr V from her conversations with the school and day care.
The father also describes some challenging behaviours of the children, albeit not to the extent described by the mother.
The children, according to Dr V, have all reported that it is the father who looks after their medical needs. This has led Dr V to make certain conclusions about the father’s capacity and involvement. Factually, at least as far as X is concerned, this is not correct. It is also incorrect as far as Y’s speech therapy was concerned.
Maturity, sex, lifestyle and background of children and parents
It was submitted on behalf of the father that given X’s age and level of maturity, there ought to be an expressed evaluation in respect of her. It is difficult to understand why the Court would not expressly evaluate Y and Z in this regard as well, particularly noting their younger ages and Z’s particular dependency on the adults.
The children have lived in (omitted) their whole lives. They have established friendships in the area, they have been going to the same schools since they have been enrolled and they have their extended paternal family also living in the area.
Attitudes to the children and responsibilities of parenthood
The father says he is “deeply” concerned about the mother’s methods of disciplining the children. The father also says he is concerned about the mother’s “lack of recognition that X’s involvement with (hobby omitted) has seen to increase her self-esteem and a new level of confidence for her.”
The mother gave evidence explaining why she has not been involved in X’s (hobby omitted). The Court accepts this evidence. The Court does not find that the mother has not recognised how important X’s involvement in (hobby omitted) has been to her or how much her self-esteem has been affected. Indeed, the mother speaks with insight of these things.
The parents however do not see eye to eye about their parenting styles, and it is a difficult situation for these children to live in.
The father gave the following evidence:
Now, Ms Leahy has, from time to time, tried to talk to you about issues concerning discipline and routines for the kids, hasn’t she, since separation?‑‑‑Been a long time. Yes.
And what has she said to you about that? Let’s talk about routines. What has Ms Leahy said to you, since separation, about routines?‑‑‑It has been that long ago I can’t remember.
Not that important to you, then, by the sound of it?‑‑‑I have my routine at my house and I’m concerned about running my ship so that the children ‑ ‑ ‑
You’ve got your ship; she has got her ship?‑‑‑So that they feel comfortable when they’re there.
And they’re ships in the night, never shall meet; is that right?‑‑‑Well, not at this stage apparently so ‑ ‑ ‑
No. And don’t you think the kids might have grown up a little bit – I was going to say the word “schizo”, but just living on two different ships, half their lives, that are different ships altogether, might have been confusing for the children?‑‑‑When they were younger, yes, but once – this has been three years now, so it’s – nearly.
The Court accepts the mother’s evidence that she has made numerous attempts to discuss with the father a combined approach in respect of at least some matters relating to their parenting, including assisting the children through counselling. The father has not been open to such discussions. While he is a caring parent, he also appears to be a naïve parent, one who takes a significant amount of cue from the children as to what they want to do – at times inappropriately so. An example of this was in relation to counselling for the children shortly after separation, when the father said that he had discussed it with the children and they did not want to go. Why such a choice would be given to the children at their then ages is a mystery. They could not have understood the gravity of such a decision or what was being asked of them.
Family Violence
The mother alleges that during the parties’ relationship, the father was verbally abusive and that he, from time to time, spoke to her in a derogatory and aggressive manner. The father makes similar allegations. They both made reference during the Family Report interviews, to the other party being emotionally dysregulated and intimidating during the marriage.
The children do not see their parents as friends and it seems that they have witnessed incidents of aggression between them. Exposure to on-going family conflict is a known risk factor to children and it may lead to children suffering adverse consequences in their emotional and cognitive development.
Other matters
One of the recommendations in the Family Report is for the children to remain living in (omitted) with the father, even if the mother relocates to the (omitted) area. This is a recommendation which the Court has taken into account as an opinion provided by Dr V, based on the matters contained in her Report. The Court is however not bound to follow such recommendations, and it is the Court’s role to consider all of the relevant evidence in weighing up the parties’ competing proposals and coming to its discretionary conclusion about what is in these children’s best interests.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[22] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.
[22] See note 1 s61C
The Court is not persuaded on the evidence before it and the findings it has made that the presumption of equal shared parental responsibility has been rebutted.
Despite the parents’ difficulties to date in being able to communicate, they have managed to co-parent the three children. The Court recognises that the distance between the parties’ homes might cause some logistical problems in terms of the parents coming to joint long term decisions in relation to the children. However, both of the parents have been involved in such long term decisions to date and ought to be given the opportunity of being so involved in the future.
This is particularly so as far as the father is concerned now that the children and the mother will be relocating from (omitted).
Conclusion
On balance, the Court finds it is in the children’s best interests for the mother to be permitted to relocate their residence and for them to live with the mother.
The Court finds that on balance the mother is the parent with the greater parental skill set and insight than the father. While she has her shortcomings, as all parents do, the children’s best interests are best served by the mother remaining their primary carer.
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interests for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 23 August 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
-
Injunction
0
5
2