LESSING & SIDNEY
[2015] FamCA 642
•4 August 2015
FAMILY COURT OF AUSTRALIA
| LESSING & SIDNEY | [2015] FamCA 642 |
| FAMILY LAW – CHILDREN – Where the father resides in Canberra and the mother resides in Sydney – Where the eldest child unilaterally made the decision to move to Canberra a short time before the final hearing and the parties have agreed that no parenting orders will be made in respect of him – Where the parties agree that an order for shared parental responsibility be made in respect of the younger child – Where the mother proposes the younger child reside with her in Sydney – Where the father proposes the younger child move to Canberra to reside with him – The father has been the primary carer for the children until he relocated to Canberra in December 2014 – Where the mother contends the father has influenced the children’s views about moving to Canberra – Where the younger child has the benefit of having a meaningful relationship with both parties and any decision will be sub-optimal for one of those relationships – Where the single expert is of the view that the children are closely connected to the father and have been reliant on him for day to day care – Consideration of the risks of separating the two children – Where it is found to be in the best interests of the youngest child to relocate to Canberra and ordinarily live with the father, her brother and the two young children of the father’s new marriage. |
| Family Law Act 1975 (Cth) |
| Crowley & Mendoza (2010) 43 FamLR 463 |
| APPLICANT: | Ms Lessing |
| RESPONDENT: | Mr Sidney |
| FILE NUMBER: | SYC | 4179 | of | 2009 |
| DATE DELIVERED: | 4 August 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 20 – 22 July 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge, SC with Ms Petrie |
| SOLICITOR FOR THE APPLICANT: | Blackman Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
All previous parenting orders be discharged.
No parenting order be made in respect of B born … 1999 (“B”) and I note it is the understanding of the parties that B will make arrangements to spend time with his mother directly with his mother.
The parties have equal shared parental responsibility for the child, C born … 2004 (“C”).
C live with the father.
C spend time with the mother:
5.1.During each school term, each alternate weekend from 7.30pm on Friday until 7.30pm on Sunday, or if a long weekend until 7.30pm on Monday.
5.2.During half of all school holiday periods, as agreed and failing agreement:
5.2.1.Subject to order 5.2.3 and 5.2.4 for the first half of each school holiday period in each even numbered year, commencing at 7.30pm on the final day of the school term, and concluding at 12.30pm on the middle day of the school holiday period;
5.2.2.Subject to order 5.2.3 and 5.2.4 for the second half of the school holiday period in each odd numbered year such period to commence at 12.30pm on the middle day of the school holiday period and conclude at 7.30pm on the Sunday immediately prior to school resuming;
5.2.3.Notwithstanding any other order, C have time with the mother during the July school holidays each year, for ten (10) days, such days to be agreed between the parties, or if not agreed commencing the day after school concludes for ten (10) days;
5.2.4.Notwithstanding any other order, for the whole of the September 2015 school holiday period for the purposes of C holidaying in the Country D with the mother;
5.3.In Canberra, on the mother giving two (2) days notice to the father that she will be in Canberra, if agreed between the parties;
5.4.During each of the school terms during which B is engaged in sports in the Canberra competition, in Canberra between 10.00am Saturday and 5.00pm Sunday on each of two (2) weekends per term and in respect of each weekend, the mother must give the father no less than seven (7) days’ notice in writing, subject to the mother receiving the sports draw.
Notwithstanding any other order to the contrary:
6.1.At Christmas the children will spend time with the parties as agreed, and failing agreement:
6.1.1.In each year ending in an odd number from 9.00am on 24 December to 5.00pm on 26 December with the mother; and
6.1.2.In each year ending in an even number from 9.00am on 24 December to 5.00pm on 26 December with the father.
In the event Easter falls outside the School Holiday period the party who did not otherwise have care of C during Easter the previous year will have her care for that Easter long weekend from Thursday prior to Good Friday until the Tuesday following Easter Monday.
For the purposes of changeover when C is spending time with the Mother in Sydney, the Father will arrange C’s travel to Sydney at his expense, with the Mother to arrange C’s return travel to Canberra at her expense.
C have communication with the parent with whom C is not residing by email or telephone or skype, save and except from the conclusion of school to 5.00pm on school days.
Subject to the exception in order 9, in the event C should at any time whilst in the care of either parent, express a wish or desire to telephone the other parent then each shall allow C to do so and shall provide such assistance to C as she may require.
Both parties shall do all things necessary to authorise and permit the other to obtain all information available from C’s and B’s (hereafter collectively "the children") respective schools and sporting bodies as to the children's education and school related activities and extra-curricular activities.
Each party notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
The parties do all acts and things and sign all documents necessary to cause C to be enrolled at D School from 2017, or such other school/s as agreed between the parties in writing, and that the mother will be responsible for all school fees associated with C attending D School from 2017. It is noted that the parties indicated during the hearing that the purpose of this order was to preserve a position at D School for C, should C’s circumstances change significantly and she returns to reside in Sydney in the future.
The parents do all acts and things and sign all documents necessary to cause C to be enrolled at E School in Canberra.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lessing & Sidney 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 SYDNEY |
FILE NUMBER: SYC 4179 of 2009
| Ms Lessing |
Applicant
And
| Mr Sidney |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between Ms Lessing (“the mother”) and Mr Sidney (“the father”) in respect of parenting arrangements for C (“C”) born in 2004 and now aged 10 years old. The parents have both re-partnered. The father has two infant children with his current wife, Ms Sidney (“Ms Sidney”), and they live in Canberra.
The parties agreed during the hearing that no parenting orders should be made in relation to the elder child, B born in 1999 (“B”) and now 16 years of age. I note it is the understanding of the parties that B will make arrangements to spend time with his mother directly with his mother.
Following the final separation in July 2008, the parties came to a joint agreement as to the care of the children and time to be sent with each of them. The children who were then aged nine and three and a half years old respectively lived primarily with the father after separation. Ms Sidney became a member of their household in 2010. The court first became involved in these proceedings in December 2014 following notification by the father of his decision to relocate to Canberra.
The father moved to Canberra in December 2014 and because of a court order, made on 10 December 2014, the children were not able to move with their father to Canberra. For the first five months of 2015 C and B resided with their mother and her partner, Mr F (“Mr F”) in Sydney.
B now resides with the father in Canberra after unilaterally deciding to pack his bags and get on a bus to Canberra, on 28 May 2015, without notifying either of his parents until he had left Sydney. C resides with the mother in Sydney and spends time with her father on alternate weekends and during school holidays.
Both parties have agreed on all parenting orders except one; whether or not C will stay with her mother in Sydney or go and live with her father and B and her two young step-brothers in Canberra.
DOCUMENTS RELIED UPON
The documents relied upon by each of the parties and the expert report is set out in Schedule 1.
PARTIES’ PROPOSALS
The mother’s proposal is that C, during school term, ordinarily live with the mother in Sydney and continue to attend G School for the next year and a half and then she would go to D School for high school.
The current members of the mother’s household in Sydney are the mother and Mr F. The mother has a high level employment position and is currently able to be back from her work at 5.45pm each evening. The arrangements that have existed in 2015 have been that Mr F picks C up from school and C is with him in the home until the mother returns home. Since May 2015, C has for the first time experienced, and on the mother’s proposal will continue to experience, growing up as an only child in that household.
The father’s proposal is that C will live with him and Ms Sidney, B and their two children, H who is currently 18 months of age and J who is two months of age. C will have her own bedroom in a four bedroom townhouse. C will attend E School which is a kindergarten to year 10 school and she will then go to a different high school for her last two years of high school.
SHORT HISTORY
In 1971 the mother was born and is currently aged 44 years old
In 1973 the father was born and is currently aged 42 years old.
The parties were married in 1997.
B was born in 1999.
In 2004 C was born.
The parties separated in July 2008.
In December 2014 the father relocated to Canberra.
On 28 May 2015 B permanently relocated to Canberra.
CREDIT
Senior counsel for the mother on the one hand suggested that no finding should be made in respect of credit in this case, but on the other, asked me at various stages of his submissions to dismiss as uncredible, evidence given by both the father and the paternal grandmother.
Counsel for the father made no submissions in relation to the mother’s credit.
In my view, both parents attempted to answer questions frankly. Their points of view differ about some events.
Because senior counsel for the mother has in fact put in question the credit of both the father and the paternal grandmother, I find that they were both impressive witnesses. The father in particular, when giving some of the evidence that senior counsel for the mother asks me to reject, did so in a manner that convinced me that he was being truthful in his answers.
DETAILED CHRONOLOGY
In 1971 the mother was born.
In 1973 the father was born.
In 1994 or 1995 the mother and father commenced cohabitation
The parties were married in 1997.
B was born in 1999.
In 1999 the parties moved to L Town (where the paternal grandparents reside). At this time the mother was caring for B and working from home. The father was working as a tradesman.
In mid-2000 the mother commenced working full time and B commenced full time day care.
In late 2000 the parties moved to Sydney.
The parties purchased a unit in Suburb M in April 2001. At this time the mother commenced working.
In 2003 the parties moved to Melbourne for the mother’s employment.
In 2004 C was born. The mother took three and a half months unpaid maternity leave at this time. She then returned to work as she was earning a more significant income than the father.
In 2007 the parties moved back to Sydney. At this time B was attending primary school and C was in day care. The father began working for I Corp in Sydney. The mother and father also sold their Suburb M home and purchased a property in Suburb N.
The parties separated in July 2008. The parties’ assets were sold and distributed by agreement. Care of the children was shared by agreement between the parties. The father primarily cared for the children over the week and the mother spent time with the children on weekends.
The parties divorce became final on 14 September 2009.
In June 2010 the father commenced to live with Ms Sidney. Also in 2010 the mother married Mr O. The children did not know ahead of time that the mother was going to marry Mr O and only found out when the mother and Mr O announced it to all those gathered at Mr O’s 40th birthday party the following day. That marriage broke down and the mother and Mr O separated in 2013.
On 3 February 2012 the father married Ms Sidney.
In October 2012 the mother sought an equal time arrangement in respect of care of the children. The father did not agree to this arrangement but the parties came to agreement that B would spend overnight Wednesday with the mother and C would spend overnight Monday with the mother (as well as weekend time).
From October 2012 to December 2014 the children spent three out of five weekends with the mother from after school Friday to 6.00pm on Sunday. The mother spent time with C on Monday night and B on Wednesday night. School holiday time was shared equally between the parties. The mother asserts that in the 2014 year the amount of time that the children were spending with her was 40 percent of nights. Her calculations in that regard are set out in Exhibit 6. The evidence would indicate that Exhibit 6 is not an entirely reliable document but it still demonstrates that C was residing with her father most of the school week, that is, C was with her father during the more routine part of the school term. I accept Dr P opinion that children do not think in terms of “60/40”. Dr P said that to children, what is important is what they experience from a parent on a daily basis. It is those experiences that are significant in terms of attachment or belonging. For example doing homework and being given afternoon tea.
In 2013 the mother purchased a three bedroom home in close proximity to the children’s school.
In August 2013 Mr F visited the mother in Sydney (at this time he was not residing in NSW). He participated in a fun run with the mother and C.
In January 2014 the mother commenced a relationship with Mr F.
The father and Ms Sidney’s first child, H, was born in 2014.
In April 2014 the mother says she and Mr F had conversations about living together but the mother wanted to first consult the children.
In April 2014 the father and Ms Sidney had conversations about moving to Canberra. Inquiries were made on the internet in relation to residences in Canberra. On 14 May 2014 the father filled out an Application to enrol in/transfer to an ACT Public School. The father says that he did that after a telephone call with the school in order to obtain further information about the availability of a placement at the school.
Before the children went to L Town for the June/July 2014 school holidays, the father had a conversation with his mother, telling her of his intention to move. Before the children went to be on holidays with their paternal grandparents at L Town, the father told B of his intention to move to Canberra and asked him to think about it whilst he was away on holidays but not tell C.
The father had a conversation with C about moving to Canberra when she came back from L Town from holidays.
The mother received a text message from the father on 16 July 2014 asking her to speak about the children. C telephoned the mother on 17 July 2014 and told her that the father was going to visit that night. At or about 7.00pm the father arrived. He discussed with the mother that he had intentions of relocating to Canberra because his employment in Sydney was hard on his body and he could not afford to live in Sydney. The mother telephoned the children about this and C asked her “…why did you say no?”. She says B said “I can see good and bad in both”.
On 18 July 2014 the mother sent the father an email explaining she did not agree to the children’s relocation to Canberra. The mother also requested that the father not speak with the children about the move to Canberra.
On 19 July 2014 the mother took the children to breakfast. She said that C said to her “Daddy said we would see you as much as we do now if we move to Canberra, so why did you say no?”
On 26 July 2014 and 30 July 2014 the parties attended a mediation.
On 2 August 2014 the mother commenced to cohabit with Mr F.
On 20 August 2014 the mother received a letter from the father’s solicitor setting out his proposal for a move to Canberra. The mother’s solicitors replied indicating that their client did not consent to the relocation.
The father took the children to Canberra for the weekend over 6 and 7 September 2014.
The mother says on 8 September 2014 C told her “Daddy says we will live on a farm”.
On 10 October 2014 the mother became aware the father had listed his home for sale. On that day the mother contacted the ACT Department of Education and Training who confirmed that they had received applications for the children to commence school in 2015 in the ACT.
On 14 October 2014 the mother filed an application in this court to restrain the father from relocating to Canberra with the children.
An interim hearing took place on 10 December 2014. Senior Registrar Campbell Ordered that the Father be restrained from relocating the children’s residence to Canberra without an order of the Court or agreement between the parties.
On 19 December 2014 the father, Ms Sidney and H relocated to Canberra.
On 24 January 2015 during a telephone call between the father and the paternal grandmother, the paternal grandmother asked the father for the mother’s home address. The father says he did not ask his mother why she wanted that address.
On 26 January 2015 the father sent C a text message stating “Great to see you today. Nanna wants to talk to you. She has a surprise. Also if you could give [W] a call for her birthday. Love you. Xxxx”. In oral evidence the father says that when he sent the text message he did not know what the surprise was which his mother had for C.
Three minutes later on 26 January 2015 the paternal grandmother sent C a text message saying:
Today Poppa and I went to [K Town] to see a pony named [U]. She is grey and is very quiet. We bought her for you to ride. Once you have mastered [U] we will look for a bigger pony. You may be able to go to pony camp. We will see how well you both get on. I will send you a photo as soon as we get her home. Lots of love Nanna.
The mother asserts that on 28 January 2015 C said to her “If I live with you, I’ll miss Daddy, [Ms Sidney] and [H]. If I live with Daddy, I’ll miss you, [Mr F] and [V] (the dog)”.
On 29 January 2015 C received a card in the mail from the paternal grandmother which amongst other things stated that the paternal grandmother was looking for a horse to purchase. This card was written prior to the text of 26 January 2015.
On 29 January 2015, the parents, their partners and the child were interviewed by Dr P.
At the commencement of the first school term in 2015, the children commenced spending alternate weekend time with the father.
On 20 February 2015 C jammed her thumb in a car door. The mother informed the father of the incident and that she was taking C to the hospital. The mother says the father did not respond. This incident was not otherwise referred to during the hearing.
On 22 February 2015 the father, Ms Sidney and H travelled to Sydney and watched B’s football game. On 23 February 2015 the father, Ms Sidney and H attended C’s swimming carnival.
On 31 March 2015 the mother sent to the father a copy of the application for a high school she proposes C attend. The father did not respond.
In 2015 the father and Ms Sidney’s second child, J was born.
On 17 May 2015 C sent a message to Ms Sidney saying “I want to live with you”.
On 22 May 2015 the father attended a meeting at E School. That day he also sent the mother an email asking her consent to enrol B at Q School in Canberra (the school the father proposes the children attend upon completing year 10 at E School).
B injured himself playing sports on 24 May 2015. The mother took B to the hospital and informed the father. There was an extensive series of text messages between B and his father whilst B was at hospital on that day relating to the progress of B’s injury.
On 26 May 2015 B sent the father a text message asking the father to buy him a bus ticket to Canberra. The father admitted during oral evidence that he knew B wanted the ticket to relocate to Canberra. The father told B to contact his godfather Mr R but to also speak with his mother and Mr F about how he was feeling. B shortly thereafter spoke to Mr R who gave him his credit card number to purchase a bus ticket online to Canberra. The father says he was unaware of this at the time.
On 28 May 2015 B left Sydney without telling anybody and caught a coach to Canberra with his belongings. The father received a text message at 1.34pm from B which read “I’m on my way”. B shortly thereafter called his father and said “I got up at 5 and packed my bags. After mum, Mr F and C left for the day I caught a bus to the mall and then I caught the L90 (a bus route to Central) to get the bus to Canberra”. On this day the mother says she could not get into contact with B. She called the father at about 2.11pm and asked if he knew where B was. The father told the mother “he just called me and told me he is on a bus on his way here”. The mother then had a conversation with C about B. The father collected B from a bus stop in Canberra at about 5.00pm. B said to him “No, I’m not going back. I’ve got all my stuff and I’m staying here”. B also said to the Father, “I told Mum last week that I wanted to move to Canberra. I’m staying. I’m not going back, I don’t need to”. Over that weekend the mother did not send C for time with the father. The mother also took C’s mobile telephone away from her so neither she nor the father could use it to communicate with one another.
The mother first was able to get in contact with B on 30 May 2015 and he told her that he would not return to Sydney. That day, the father sent a text message to B’s sports coach to tell him that B would not be playing on Sunday.
On 31 May 2015 the father travelled to Sydney and attended C’s soccer game. The father did not bring B to Sydney. The mother says from this day C has not asked for B and when B calls he does not ask for C.
On 3 June 2015 B attended E School in Canberra and chose subjects and met the teachers. On 4 June 2015 B commenced attending E School.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
Section 61DA of the Act provides that when making a parenting order in relation to a child, the court must 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.
Section 65DAA of the Act sets out what the court is required to consider if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child. Section 65DAA(1) states that the court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and reasonably practicable, and if it is, consider making an order to provide for equal time. If the court does not make an order for equal time, then the court must consider whether the child spending substantial and significant time with each of the parents will be in the best interests of the child and reasonably practicable, and if so, make such an order. Section 65DAA(5) of the Act sets out those matters which the court must consider when determining whether or not an order is reasonably practicable.
The High Court in MRR & GR [2010] 240 CLR 461, said at [13] and [15]:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
….
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
There is more than one suggested pathway through the legislation. There is no preferred approach
The Full Court at [38] of Starr & Duggan [2009] FamCAFC 115 suggested the following as a “logical” approach.
·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.
Other approaches have been discussed in Crowley & Mendoza (2010) 43 FamLR 463 at [35] to [43] (Murphy J); Heath & Hemming (No. 2) [2011] FamCA 749 at [87] (Kent J) and SCVG & KLD [2014] FamCAFC 42 at [68] to [91].
Proposals for relocation are not to be seen in isolation. The court’s task is a holistic one, where the respective proposals of the parties are compared and the advantages and disadvantages to the child are weighed so that ultimately an order is made in the child’s best interests.
SOME SPECIFIC ISSUES
Did the father influence B’s leaving Sydney for Canberra?
The father’s demeanour and the emotion that he showed in the witness box satisfied me that B’s move to Canberra was not something that the father had engineered. B did this substantially by himself. The mother seems, by the fact that she is no longer seeking any order in relation to B, to have accepted that that is so.
The father at all times has been cognisant of the original injunctive order made that prevented him from taking the children to Canberra. He has on a number of occasions resisted B’s expressed requests of him to allow B to move to Canberra.
The mother, through her senior counsel, suggests there has been a fracturing of trust between the parents arising from the circumstances of B’s move to Canberra, particularly after the mother had read text messages which the father has produced that passed between the father and the children from time to time.
The mother points to the fact that the father informed B that he could not get into a particular course at E School in Canberra in the second semester, which B was very interested in, ,if B did not complete a particular course in the first semester at E School. The mother also points to the fact that the father told B to talk to his godfather when B directly asked the father to buy him a ticket to Canberra.
I accept that when B directly asked the father to breach the court order, the father was placed between a rock and a hard-place. His response was to tell B to talk to others whom he trusted and in particular I accept the father told B to talk to his mother. I find that B was not able to do that probably because he knew that his mother was not prepared to hear how much he wanted to go to Canberra.
I accept the evidence of the father that he did not know that B was coming to Canberra, on the day that he did until after B was already on the bus. The father also did not know until after B moved to Canberra that B’s godfather had provided B with a credit card number so that B could buy a bus ticket online. I accept that the father during this period told B that a decision was imminent in this court case and he should wait for the final decision to be made.
I accept there were a number of other pull factors on B which influenced the timing of his move. They included the birth of his new brother in Canberra and disappointment at the unavailability of a sports team in Sydney with whom he had hoped to play.
B’s wish to join his father in Canberra comes as no surprise.
B presented to Dr P as a thoughtful, intelligent and mature adolescent boy. B told Dr P that his then school was a very good school but its facilities were “a bit crap”.
When Dr P asked B in January 2015 about things that cause him worry or concern, B became quite emotional or expressive in his explanations. B told Dr P that he often worries about what he will do in the future and that he worries “what will happen to mum”. He also discussed with Dr P his concerns about “what will happen if [B] chooses one [parent] or the other”.
B said he found his mother to be “nice” and that he got on very well with her. He said Mr F was “great to have around”. B also said he gets along well with his father and is particularly aligned to his father because his father knows and understands a lot about sports and they have this as a common background. B said he loves Ms Sidney and that she is always available and interested in him, which B appreciates. B said he loves playing with the father and Ms Sidney’s child H.
Dr P notes in her report that throughout the interview B was on the verge of tears and appeared troubled by discussing the option of relocation. B told Dr P that he had thought about “the pros and cons” of living in Canberra. The pros included seeing his father more often and seeing how H grows. He also said there are advantages of having a better school with more subjects. B said that the most difficult thing about relocating would be leaving his friends and not seeing his mother as much.
B ended up telling Dr P “I think I want to move to Canberra because I think this is the best option in the future and I want to see H and the new baby”. At this point of the interview, B was crying and said that he was very worried about his mother knowing this view. He was worried that he may have let his mother down.
Dr P opined that B had applied intelligent reasoning to his current predicament and that the court should place considerable weight on his views.
I have some confidence that B leaving Sydney will not in the medium or long term be a matter which the mother holds directly against the father and will not be a matter which will create a permanent facture in their parenting relationship.
The decision by the father and Ms Sidney to move to Canberra
There was long cross examination about the father’s decision making process in respect of going to Canberra and the way he handled telling the children and telling the mother.
The father and Ms Sidney’s decision to move to Canberra was not taken lightly. I accept the father’s evidence that it was one of the hardest and heartfelt decisions that he had ever made.
H, the first child of the father and Ms Sidney, was born in 2014. It was in the months after the birth of H that the father and Ms Sidney started seriously looking at their finances and their inability to continue to financially survive in the location in Sydney in which they were living.
The father during evidence volunteered that he had thought of other places in Sydney to move to. Ms Sidney seemed to be unaware that he had thought about those places.
By about May 2014 the father and Ms Sidney had commenced to make inquiries on the internet in respect of accommodation in the E School area of Canberra. That area had a number of attractions, namely:
110.1.The father had previously worked at the E School and knew it well;
110.2.Ms Sidney’s sister lived in the next suburb;
110.3.It was on the side of Canberra nearest to Sydney and therefore shortened the distance by road between where the father intended to live in Canberra and the mother’s residence in Sydney.
In May 2014 the father made a telephone call to E School to make inquiries about availability of places. He was informed by a staff member at the school that in order for them to give him information he should fill out an online application form. There was some criticism suggested during the father’s cross examination, of the manner in which he completed that form by not placing the mother as an emergency contact. I do not understand the basis of that complaint. The mother would be in Sydney and unavailable to come to the school and pick a child up from sick bay or otherwise attend at a hospital if a child was injured. The father also explained as to why he did not put the mother’s contact details on the application form at the stage that he filled it out, saying he did not want the school inadvertently contacting the mother before he told the mother about the plans of himself and Ms Sidney to move to Canberra.
Before the school holidays at the end of term 2 in 2014 the father told both his parents about their plans and told B he was leaving to go to L Town about their plan and B was asked to think about it but not tell C.
Upon return from school holidays both the mother and C were told about what the father wished to do.
The father earns about $53,000 a year. He has two young children in his household and Ms Sidney does not intend to re-join the workforce any time soon.
Whilst the father is not required to establish a compelling reason for his move, I find that the decision to move to Canberra, where in the medium term Ms Sidney would have the availability of family support to provide child care and assistance without charge, thereby assisting the financial circumstances of the father’s new family, was a compelling reason for the father’s move.
The paternal grandmother’s pony
The father agreed that the acquisition of the pony by his mother in January 2015, just before the interviews for the expert report was unfortunate timing. I accept the evidence of the paternal grandmother that the timing was not deliberately planned by her to influence C’s attitudes during the interviews for the expert report. The mother’s case theory in relation to the purchase of the pony was never really explained and was a little difficult to understand. The pony was going to be at L Town, not in Canberra. The pony did not create a direct influence on C to go to Canberra. This was in fact the third pony that had been purchased, not just for C to ride but also for the other grandchildren to ride, although C is the one most keenly interested in horses. C already had a very close relationship with her grandmother in L Town and had spent large amounts of what I would infer was very pleasurable time during school holidays with her on her country property. It is unlikely that the acquisition of the pony was going to affect in any significant way the attitudes that C would express to the report writer in relation to her grandmother or the paternal family more generally.
STATUTORY CONSIDERATIONS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
C has the benefit of having a meaningful relationship with both of her parents. Unfortunately the choice I am asked to make will be sub-optimal in respect of one of those relationships.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
This is not a relevant consideration.
The additional considerations
Children’s views (s 60CC(3)(a))
C presented to Dr P as an animated, outgoing and sociable child. She said that she plays a lot with Mr F and also gets on very well with Ms Sidney. In fact, C said she really loves Ms Sidney.
When asked about the proposed relocation C told Dr P that “B and [she] figured it out”. She said she would be sad she would not see her father and step mother as much once they moved to Canberra, but would be happy as long as she got to still see them both. She said “my parents want me to be happy with who I live with”.
C told Dr P that she gets on very well with her mother and she often talks to her mother about specific things. She said “we always talk at night about how much we love each other”. C said she got on with her father mostly the same as with her mother. She said she could tell her father anything.
C said she did not mind what happens or who decides where she lived. C was content for the “grownups” to work it out.
Dr P did not form the view that either party had unduly influenced the children with respect to their wishes.
Both parents at times assured the children that they loved them and that they would prefer that the children ordinarily live with them.
The father was challenged about the appropriateness of a couple of text messages he had sent to B. For example, after the hearing on 10 December 2014 the father texted B saying:
Mate I’m really sorry but it’s not over. We will continue to work on it and once you get to talk to the expert and voice your opinions it will sort itself out. Remember you are 15 and what you want matters, especially to [Ms Sidney] and I.
The father conceded in cross examination that on one or two occasions, he could have framed his texts a little differently. Overall however in my view, the father has behaved in a very responsible and restrained way in dealing with what he described, and I accept, was one of the most difficult decisions he has ever had to make. I find that neither parent has deliberately set out to persuade either child to express a view that that child should ordinarily live with that parent.
Relationships of the children with the parents and other persons (s 60CC(3)(b))
Dr P observed that C had a very warm, close, open and loving relationship with the mother.
C was also observed by Dr P to be close, comfortable and open with her father. C told Dr P that she can tell her father anything.
At the interviews with Dr P, it was noted that C was very affectionate on arrival with Mr F and was cuddling him and being quite physically playful and affectionate with him. This carried on throughout the session.
Both C and B have a close relationship with Ms Sidney. Dr P opined that the children appreciate her availability and consistency.
Dr P observed that the children also have an extremely close and warm relationship with their brother H (at the date of the interviews J was not yet born).
C’s relationship with B
Up until the dramatic events of 28 May 2015, neither parent suggested that B and C should be separated. The mother now suggests that the siblings be separated.
The mother is now painting the relationship between the siblings as not all that close or particularly important. For example, in her affidavit the mother says that C did not cry or say she wanted to go to Canberra over the weekend following B’s departure, when the mother restrained her from going. The mother asserts C did not ask for B once that weekend. Since B has been living in Canberra, the mother says C does not ask for B or to speak with him on the phone. The mother says B has also not asked about C. Over the weekend B came to Sydney on 6 June 2015 the mother says each child did their own thing and B did not show a lot of interest in C because she is young and likes different things.
I accept that B and C do different things. In her affidavit the mother set out a time when C said that she “hated” her brother because he was not taking particular notice when she was relating to her mother what she thought was an hilarious story about something that had happened whilst she had been riding in her father’s car to do with a seat suddenly moving forward. The mother also says that C has not wanted to go to the airport to send B off following the weekends he comes to Sydney. She says the children do not hug each other good bye. The mother further asserts the children are not close siblings.
Dr P does not explicitly deal with the nature of the relationship between B and C in any significant way in her report. During oral evidence however she said that the children do not have a particularly close relationship because of their developmental differences in age, gender and developmental stages. She said however that C regarded B as protective but also regarded him as being very successful at many things and she might perceive herself as less successful. She thought she looked up to her older brother. She said they had a not close but warm relationship and that that relationship was important to C’s identity. She said B was protective of his sister. Although they fought as siblings that was a healthy thing for them to do and that B enjoyed looking after her in an appropriate way.
Dr P emphasised the exclusive nature of B and C’s sibling relationship. She also emphasised that it is likely to be one of longevity and a relationship that would eclipse the parenting relationships.
The children have shared many experiences, particularly since the parents separated in 2008. Importantly they have experienced the emotions arising from and have been supportive of one another through their parents’ separation. There has been another period of time when the children supported one another when the mother’s marriage with Mr O (who the mother married not knowing Mr O had an undiagnosed bi-polar condition) was breaking down and there was significant turmoil in that relationship in the household in which the children were attending on weekends and for half the school holidays. I do not accept the mother’s evidence that the children were unaware of that turmoil. There was one occasion when the children had to vacate the home one night and stay overnight at the home of one of the mother’s friends.
Dr P opined that C would miss B if they were not living together. Dr P said it is not critical to the future relationship between B and C that C move to Canberra, but that in order to maximise the advantage to C of her relationship with B, the preferred position is that they continue to reside together.
Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the child (s 60CC(3)(c))
Having watched the mother in the witness box I think she is going through a hard time at the moment dealing with the possibility that she might lose both the children to Canberra. This has affected her perception of the father’s behaviour to some degree. She, to some degree, sought to promote the idea that she is cooperative but the father has suddenly become uncooperative. She sought to say there was a fracturing of what up until the father’s decision to go to Canberra, had been an exemplarily cooperative parenting arrangement. I expect after this case is over the ability of the parents to jointly participate in decisions will return to what it once was.
Extent to which each parent has fulfilled their obligation to maintain the child (s 60CC(3)(ca))
This has not been an issue.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
At a time before B moved to Canberra, the mother told Dr P that her specific objections to the children’s relocation to Canberra was that she wants the children to have both parents in their lives. The mother also told Dr P that “it is so sad for [the children] not to have what they have had”, when referring to both parents living in the same city. The mother’s concerns also surround the children’s friendships and schooling being disrupted by a relocation to Canberra.
The father acknowledged during his interview with Dr P that it will be a significant disadvantage for the children if they relocate, that they will not have the benefit of close proximity of their mother. He said that might be particularly difficult for C. The father said that if the children were permitted to relocate to live with him, he would increase the children’s communication with their mother, particularly over Skype. He also said that increasing the time the children spent with their mother during weekends, school holidays and other times would help continue their relationship with the mother.
The children have been used to living with the father on a day to day basis. When C was born the father stopped work and was available to the children at least four to five days per week.
If the children relocated to Canberra, Dr P opined in her report that this would not significantly alter their perceptions of their mother, their connection with the mother and their reliance on their mother for psychological and practical assistance. Dr P is of the view that the children are of an age where their attachment relationship with their mother has been securely formed and would be robust enough to withstand the challenges of separation.
However if the children were to remain in Sydney and see their father each alternate weekend, Dr P opined that would have a negative impact on them. The children are closely connected to their father and have been reliant on him for day-to-day care. Dr P reports that one of the first impacts on the children would be missing the presence of their father. She said they will notice his absence and miss him and significantly pine the loss of their father and step mother because they have been most used to his pattern of care.
Senior counsel for the mother emphasises that C currently attends a stable school (a school the parties agreed she should move to in term 3 2012), that C has developed a stable set of friends in the first two terms of 2015 and that she is settled in in after school activities.
If C stays in Sydney, she will have to deal with the change of living apart from B and, as discussed above, that will mean she loses the opportunity of strengthening her relationship with B. C would also lose the opportunity of establishing and strengthening her relationship with her other two brothers. Dr P indicated that there were two possible reactions that C might have to the three boys in Canberra if she was not to live with them on a day to day basis. The first was that she could reject them so that they became a trio of boys by themselves and different from her. She may develop an understanding that somehow her father loves them better than her. The alternate outcome opined by Dr P was that C could become very jealous of the life B is leading and the life which is no longer available to her. Dr P said that either of these possible scenarios created emotional challenges for C that will be taxing for her. Dr P however said that given C’s resilience she would expect that C would be able to cope with either scenario, but both of these possible reactions by C are less than optimal for her development.
C has primarily lived with her father since she was three years of age and only went to live with her mother this year after the court had refused to allow the children to go to Canberra on an interim basis. I do not put a great deal of weight on the “status quo” in this case that has been established in 2015.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
There is an issue for the father in funding C’s airfares from Sydney to Canberra. He will overcome those difficulties by driving her in a car or having C accompany him, another adult or B on a bus.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i))
The mother told Dr P that she considers her parenting strengths to be that she is available to the children and that she is a “good listener”. The mother also helps the children with their homework.
The mother has had to re arrange her work life to be more available to the children when they came into her care in December 2014 (although B more recently has begun to reside with the father). The mother has clearly worked hard to become a high achiever in her career and now holds a senior management position in a large corporation. She earns about $220,000 per year and Mr F has a full time job in a management roll. The mother relies much on the assistance of Mr F to assist with the children’s routine after school.
The father told Dr P that his parenting strengths are that he tries to think about the children and their needs first. The father enjoys doing many things with the children and has a particular bond with B.
Dr P reports that both the father and the mother have an exceptionally good capacity to provide for the needs of the children. Both parents have worked collaboratively to assist the children in both emotional and educational domains. Dr P was of the view that the parents have an exemplary attitude to parenthood and have honoured their obligations to the children in a very good way.
Dr P was asked whether or not it would be preferable for C to be with her mother as she entered adolescence so her mother could help her manage the changes that happen to a girl during adolescence. Dr P said that she thought that issue was gender neutral because in the circumstances of this case, C told Dr P that she could talk to her father about anything. I also take into account that C has lived in the household with Ms Sidney for about four and a half years and C “really loves [Ms Sidney]”. Ms Sidney impressed me as a very competent mother who was handling the pressures of having two young children well. In addition, C will have a mother available on a regular basis to speak to on the telephone , although Dr P did acknowledge that because it is best to talk about these things face to face as opposed to attempting to talk about them electronically, those conversations would be restricted if C was in Canberra.
The differences in the Sydney and Canberra schools were compared. Senior counsel for the mother put to Dr P the proposition that C’s proposed school in Canberra, whilst it has a similar class size and the pastoral care offered in Canberra would not be significantly different from that allowed at the current school, the differentiating factors were:
155.1.In C’s year in Canberra there would be 11 other classes at her age (there is no suggestion that she would have any more than one teacher however).
155.2.Next year in Sydney C will have no boys in her class.
Dr P was of the view that these differences were of no weight and opined that although C was put into a smaller school because of problems that were existing at the time, Dr P assessment is that the new school proposals are quite satisfactory. Dr P pointed out that in a bigger pool of children it is more likely that you could find children with whom you can make friends.
As already indicated, C herself is very bullish in terms of being able to make friends and did not seem particularly concerned at leaving behind those that she currently has in Sydney on a day to day basis. I am mindful the interviews for the report were before C had developed new friendships in 2015.
Another difference between the two households relates to the fact that there are now two children under two years old in the household of the father. I have no doubt that that dynamic will create challenges in that household for the father and Ms Sidney. Clearly being the only child in the mother’s household, C would have more attention given to her. Dr P however talked of the advantages of being in the father’s household. Dr P pointed to the quality of Ms Sidney’s caregiving and the resilience of Ms Sidney in being able to hold down full time employment, and be a mother to H whilst being pregnant with J. Dr P pointed to the positive learning experiences for C in a household with other children, including learning patience and to share. Dr P assessed both the father and Ms Sidney as psychologically robust with the capacity to manage the contingencies that might arise in a household with two children who are under two years old. Dr P said that she detected no difficulty with either the father or Ms Sidney in terms of their mental status, no postnatal depression in Ms Sidney or other circumstance that might give an indication that they would not be able to properly handle the normal stresses that come with two young children of that age in their household.
On 24 May 2015 B got injured playing sports. The mother complains in her affidavit that the father did not respond to her messages about this incident. B was at the hospital and the father was communicating solidly with his 16 year old son by text in a fairly robust manner and the father was fully appraised as to what was happening with B at the hospital because of his communication with B. I am surprised that the mother seemed unaware of the extent of the communication at the hospital between son and father.
The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))
This is not a relevant consideration.
If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))
Not applicable.
Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))
Not relevant.
Likelihood of order leading to further proceedings (s 60CC(3)(l))
Not relevant.
Any other relevant fact or circumstance (s 60CC(3)(m))
Not relevant.
EQUAL SHARED PARENTAL RESPONSIBILITY
The parties have agreed upon an order for equal shared parental responsibility in respect of C.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
Given that the father is in Canberra and the mother lives in Sydney, it is not reasonably practicable for C to spend equal time or even what is defined in s 65DAA(3) of the Act as substantial and significant time with both of her parents.
CONCLUSION ABOUT BEST INTERESTS
The importance for C to have a meaningful relationship with both her parents cannot be optimally managed. The proposal of both parties is, in the words of Dr P, sub-optimal. That is because C can no longer be in a situation where she has very easy access to both her parents.
Given that having a meaningful relationship with both her parents is a primary consideration and a consideration which does not favour one parent over the other, it is necessary to examine the weight to be given to other considerations.
C’s views are neutral and I assess them to be genuinely so.
Separating C from B is an important consideration. As I mentioned during submissions, because of the events on 28 May 2015, I do not have any evidence from Dr P in respect of C’s view about B permanently moving to Canberra.
I put weight upon the risks associated with separating C from B. I have discussed above the risks as being C becoming jealous of her three brothers’ relationship in Canberra, or that she may resent them and reject the relationship.
The mother relies upon the effect of change as being a weighty matter. She points to the fact that C has moved from her bigger school to the smaller school with better “pastoral care”.
Although C is doing well in her current school Dr P indicated that she did not have any concerns about C being able to successfully transition to a new school in Canberra. C herself was bullish about that (although as I noted this statement was made prior to developing the group of friends she has this year). She is confident she will be able to make new friends. C will go to high school in 2017 and her moving to a new school in Sydney at that time would involve some change in the structure of her friendships at school.
The mother also challenged the father’s submission that he had a history of being very flexible and facilitative of the mother’s relationship with the children. The mother wants to point to what she believes was his behaviour in luring B to Canberra and through her senior counsel, criticises the father for the way the father generally handled B’S decision that he took to go to Canberra.
C has only lived alone with her mother and Mr F for about two months and part of that time included the July 2015 school holidays. Senior counsel for the mother emphasised all the unknown risks arising from that untested arrangement into the future. B has always been around and living with C. The mother’s care of C in her household and C’s ability to continue to have a relationship with her father is yet to play out. The mother has no real track record that I could judge her on in terms of facilitating the father’s time with C now that C has become an only child in the mother’s household.
I conclude that it is in C’s best interests for her to ordinarily live with her father. C will spend time with her mother each alternate weekend in Sydney. The parties are also able to agree on the mother spending time with C in Canberra on two days’ notice to the father. The mother will also spend time with C in Canberra on two weekends each term during B’s sports season. The parties also agreed that the mother will spend 10 days with C over the July school holidays and otherwise C will spend half of each school holiday period with each of the parents.
PROPOSED ORDERS
There is an agreement that B and C will go to the World Cup with their mother in the next school holidays.
The parties have agreed on C’s high school once the outcome of the decision as to where she would ordinarily live was known. I have made orders that C be enrolled at E School in Canberra and that the parties also enrol her in D School so as to reserve her a place at that school in Sydney should circumstances change significantly and C returns to Sydney in the future.
The father has agreed to abide by the mother’s position about C’s travel by bus between Canberra and Sydney.
The father sought orders in respect of Christmas and Easter and I have made orders in similar terms. The parties will have time with the children on each of those special occasions in alternating years.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 4 August 2015
Associate:
Date: 4.8.2015
SCHEDULE 1
Applicant mother
Affidavit of the Mother filed 24 June 2015
Affidavit of the Mother filed 16 July 2015
Affidavit of Mr F filed 24 June 2015
Affidavit of Ms T filed 3 July 2015
Respondent father
Affidavit of Father filed 29 May 2015
Affidavit of Father filed 9 July 2015
Affidavit of Ms Sidney filed 29 May 2015
Affidavit of Ms S Sidney filed 29 May 2015
Expert Report
Dr P’s report dated 5 March 2015
Key Legal Topics
Areas of Law
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Family Law
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