Markham and Craven
[2017] FCCA 19
•20 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARKHAM & CRAVEN | [2017] FCCA 19 |
| Catchwords: FAMILY LAW – Parenting – competing parenting applications by mother and father – best interests of children – mother should be permitted to relocate children’s residence from (omitted) to Brisbane metropolitan area. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Cannon & Heath [2016] FCCA 2346 AMS v AIF [1999] HCA 26; 199 CLR 160; 73 ALJR 927; 163 ALR 501; 24 Fam LR 756 Taylor v Barker (2007) 37 FamLR 461 KB v TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458 Goode & Goode (2006) FLC93 – 286 |
| Applicant: | MS MARKHAM |
| Respondent: | MR CRAVEN |
| File Number: | PAC 4725 of 2014 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 15 - 17 November 2016 |
| Date of Last Submission: | 17 November 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 20 January 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Gittoes-Ceasar |
| Solicitors for the Respondent: | In person |
ORDERS
That all prior Orders be discharged.
That the parties shall have equal shared parental responsibility in relation to major long-term decisions for the children, X born on (omitted) 1999 and Y born on (omitted) 2005 (“the children”).
That the children live with the mother.
That the mother be permitted to forthwith relocate the children’s residence to the Brisbane metropolitan area.
That the child Y spend time with the Father in the Sydney metropolitan area as follows:
Term 1
(a)From 7.00pm Friday to 6.00pm the following Sunday commencing on the third Friday of February 2017 and continuing each year thereafter; and
(b)From 7.00pm Friday to 6.00pm the following Sunday commencing on the eighth Friday of Term 1 2017 and continuing each year thereafter;
Term 2
(c)From 7.00pm Friday to 6.00pm the following Monday commencing on the Friday immediately before Labor Day (Queensland) in 2017 and continuing each year thereafter; and
(d)From 7.00pm Friday to 6.00pm the following Sunday commencing on the second Friday of June in 2017and continuing each year thereafter;
Term 3
(e)From 7.00pm Friday to 6.00pm the following Sunday commencing on the fourth Friday of Term 3 in 2017 and continuing each year thereafter; and
(f)From 7.00pm Friday to 6.00pm the following Sunday commencing on the Friday immediately before Father’s Day 2017 and continuing each year thereafter;
Term 4
(g)From 7.00pm Friday to 6.00pm the following Sunday commencing on the fourth Friday of Term 4 in 2017 and continuing each year thereafter; and
(h)From 7.00pm Friday to 6.00pm the following Sunday commencing on the second Friday of December 2017 and continuing each year thereafter;
During the short term school holiday period
(i)From 5.00pm on the first Wednesday of the short school holiday period to 5.00pm on the Friday immediately before the next school term commencing in the school holiday period immediately following Term 1 2017 and commencing each short school holiday period thereafter.
During the summer school holiday period
(j)From 5.00pm on the middle Saturday of the summer school holiday period to 5.00pm on the Friday immediately before the first day of the next school term, commencing in the 2016/2017 summer school holiday period and continuing each alternate year thereafter; and
(k)From 5.00pm on the first Saturday of the summer school holiday period (being the first Saturday following the last day of the previous school term) to 5.00pm on the middle Saturday of the summer school holiday period commencing in the 2017/2018 summer school holiday period and continuing each year thereafter.
That the Father’s time with Y be suspended and Y spend time with the Mother as follows:
During the short school holiday period:
(a)From after school (or 3.00pm) on the last day of the previous school term to 5.00pm on the first Wednesday of the school holiday period, and from 5.00pm on the Friday immediately before the next school term to before school (or 9.00am) on the first day of the next school term commencing in the school holiday period immediately following Term 1 2017 and continuing each short school holiday period thereafter;
During the summer school holiday period:
(b)From after school (or 3.00pm) on the last day of the previous school term to 5.00pm on the middle Saturday of the summer school holiday period commencing in 2016/2017 summer school holiday period and continuing each alternate year thereafter; and
(c)From 5.00pm on the middle Saturday of the summer school holiday period to before school (or 9.00am) on the first day of the next school term, commencing in the 2017/2018 summer school holiday period and continuing each alternate year thereafter.
For the purposes of Orders 5 and 6 above:
(a)The Mother will pay for flights for Y to spend time with the Father in the Sydney metropolitan area during each school term pursuant to Orders 5(a) to 5(h) above, and during the short school holiday periods following Term 1 and Term 2 each year pursuant to Order 5(i) above, and will be responsible for booking flights for the time during the school term and the school holiday periods following Term 1 and Term 2, no less than 21 days prior to travel, and will provide a copy of the itinerary to the Father within 48 hours of receipt.
(b)The Father will pay for flights for Y to spend time with him during the school holiday periods immediately following Term 3 and Term 4 each year, pursuant to Orders 5(i) to 5(k) above, and will be responsible for booking flights for these school holiday periods no less than 21 days prior to travel, and will provide a copy of the itinerary to the Mother within 48 hours of receipt;
(c)The parties shall book flights for Y to travel as an unaccompanied minor unless otherwise agreed and if the parties (or either of them) choose to travel with Y they shall be responsible for the costs of their flight; and
(d)For the purposes of Orders 5(j), 5(k), 6(b) and 6(c), in the event that there is no middle Saturday of the summer school holiday period, then changeover shall occur on the first of the two middle Saturdays at 5.00pm.
For the purposes of changeover:
(a)The Mother shall deliver Y to the appropriate place indicated by the airline for Y to travel as an unaccompanied minor, pursuant to Order 7 above, at the beginning of Y’s time with the Father and the Father shall collect Y from the appropriate place indicated by the airline;
(b)The Father shall deliver Y to the appropriate place indicated by the airline for Y to travel as an unaccompanied minor, pursuant to Order 7 above, at the conclusion of Y’s time with the Father, and the Mother shall collect Y from the appropriate place indicated by the airline.
That in addition to Order 5 above, and subject to the Father giving notice within the time frame set out in these Orders, Y is to spend time with the Father in the Brisbane metropolitan area on no more than two (2) occasions each school term as follows:
(a)As defined in Order 9(b) below for the purposes of this Order, the Father is to provide the Mother with no less than seven (7) days notice (by text or email) of his intention that Y spend time with him in the Brisbane metropolitan area:
(b)That the time Y spend with the Father occur from after school (or 3.00pm) Friday to before school (or 9.00am) the following Monday;
(c)Should the following Monday be a public holiday period, the time that the Father spends with Y be extended to 3.00pm on the public holiday Monday;
(d)For the purposes of this Order, changeover shall occur at the school where Y attends, from time to time, or if it is a non-school day, or Y is not otherwise at school, changeover shall occur at (omitted) Shopping Centre at (omitted).
That in relation to the education and schooling of the children:
(a)As far as is necessary each parent will give authority to any school that the children may from time to time attend for the other parent to obtain a copy of all school reports, notes and newsletters (which are ordinarily provided to parents) from the children’s school at the parent’s cost;
(b)In addition to Order 10(a) above, each parent shall advise the other parent by email within five (5) days of becoming aware of any of the following involving the children:
(i)Parent and Teacher meetings as organised by the school;
(ii)Any concert or significant school activity such as a speech night in which it is expected that the children will participate or be actively involved; and
(iii)In the event the schools that the children attend will not issue duplicate sets of school reports such that each parent receives a copy, the parent who receives the report shall within five (5) days provide a copy to the other parent at the cost of the recipient parent.
(c)To facilitate the operation of Order 10(a) above each parent shall do all things possible to ensure the schools which the children attend (and any of the children’s teachers or school counsellors) are authorised to communicate freely with the other parent.
That each party notify the other upon the children (or any one of them) being admitted to hospital or suffering a serious illness, including all relevant details of the hospital admission and/or serious illness within twenty four (24) hours at the latest.
That both parties are at liberty to attend on occasions that are significant to the education, religious education, extra-curricular activities, sporting activities, health or any other significant welfare occasions where the attendance of either or both parties is invited.
Communication:
(a)That the Mother shall facilitate Y communicating with the Father on a liberal and flexible basis when Y is not in the Father’s care, in accordance with Y’s wishes by phone, text message, Skype, Facetime, email, letter, or other similar modes of communication. The Mother shall ensure that Y’s phone is charged, there is prepaid credit on the phone and there is an internet connection to facilitate such communication.
(b)That the Father shall facilitate Y communicating with the Mother on a liberal and flexible basis when Y is not in the Mother’s care, in accordance with Y’s wishes by phone, text message, Skype, Facetime, email, letter, or other similar modes of communication. The Father shall ensure that Y’s phone is charged, there is prepaid credit on the phone and there is an internet connection to facilitate such communication.
That the child, X spend time with the father in accordance with her wishes.
IT IS NOTED that publication of this judgment under the pseudonym Markham & Craven is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4725 of 2014
| MS MARKHAM |
Applicant
And
| MR CRAVEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These parenting proceedings relate to the children X, born (omitted) 1999, now 17 years, and Y, born (omitted) 2005, now 11 years. They live with the mother in (omitted), and the father spends regular time with them.
This was the final hearing of competing parenting applications by the parents of the children. The mother’s application seeks orders permitting her to relocate to the Brisbane metropolitan area from (omitted), which proposed relocation is opposed by the father. The father’s application seeks orders that, inter alia, Y spend time with him in an equal time arrangement, and that he spend time with X every second weekend.
The mother was born on (omitted) 1979, and is aged 37 years. The father was born on (omitted) 1978, and is aged 38 years.
The parties commenced cohabitation in (omitted) 1999 which continued until June 2000, when the parties separated for a period of about 20 months. The mother then relocated with the child X to Queensland for a period of about 18 months. In (omitted) 2001 the mother returned to (omitted) with X. They reconciled in (omitted) 2002 and recommenced cohabitation in (omitted) 2004 in (omitted). At final separation in about May 2006, the mother moved into a property at (omitted). The mother later relocated with the children to Queensland in about (omitted) 2006. The father commenced proceedings seeking orders that the mother should return to (omitted) with the children. On 24 October 2006 such orders were made, including orders that the children spend time with the father each alternate weekend (in relation to Y, during the day only), and from 3:00pm to 6:00pm each Wednesday.
On 18 December 2006, further interim orders were made providing for the children to spend time with the father from after school until 6:00pm each Tuesday and Thursday, in addition to time on weekends.
On 14 September 2009, final orders were made by consent between the parties permitting the mother to relocate to (omitted), and for the children to spend time with the father each alternate weekend, during the week, and half the school holidays. Those orders further provided that the children’s time with the father during the week extended in 2011.
On 18 October 2014, the mother filed an Initiating Application seeking orders permitting her to relocate to the Brisbane metropolitan area with the children.
On 22 December 2014, interim orders were made for the mother to remain living in the Sydney metropolitan area, and for the children to spend time with the father in accordance with the orders of 14 September 2009, subject to some minor changes.
The mother commenced a relationship with Mr A in about (omitted) 2009. They were married in (omitted) 2013 in Queensland. There are three children of that relationship namely A, born (omitted) 2011, B born (omitted) 2013, and C born (omitted) 2014.
The mother is currently about 22 weeks pregnant with her fourth child of the relationship with Mr A.
The father commenced a relationship with Ms S in about 2014. There are two children of the father’s relationship with Ms S, D born (omitted) 2014, and E born (omitted) 2016.
Prior to December 2013 the father was employed with (employer omitted) as an (occupation omitted) at (omitted). He completed a (qualifications omitted) degree at (omitted), completing his degree in 2013. During the period of December 2013 to June 2014, the father was financially supported by his new partner, an (occupation omitted) who has a gross annual income of about $62,000.
In June 2014 the father secured employment as a permanent part-time (occupation omitted) with (employer omitted). The head office is at (omitted), and as part of the father’s role, he is expected by his employer to undertake fieldwork, sometimes outside the Sydney metropolitan area, and occasionally interstate or overseas and at short notice. The father has very flexible work hours in this position.
Parties’ Proposals
The mother’s proposals are set out in her Amended Initiating Application filed 10 August 2016; inter-alia, the mother seeks an order that she be permitted to forthwith relocate to the Brisbane metropolitan area and that the children live with her.
The father’s proposed orders are set out in his affidavit filed 9 August 2016, paragraphs 214 to 221.4. Inter-alia, the father seeks an order that the children not be permitted to relocate to Queensland. In relation to the child Y, during the children’s school terms, the father seeks an order that the child spend time with him every second Friday from after school to before school the following Friday, and at other times as agreed between the parties, together with, inter-alia, school holiday time and other special occasions. In relation to the child X, during the children’s school terms, the father seeks an order that the child spend time with him every second Friday from after school to before school the following Monday, and other times as agreed between the parties, together with, inter alia, school holiday time and other special occasions.
It is noted that both parties seek an order for equal shared parental responsibility for the children.
Material relied upon
The mother relied upon her Case Outline document, Exhibit A, her Affidavit filed 26 October 2016, Affidavit of her partner Mr A filed the same day, the Affidavit of the maternal grandmother Ms F filed 11 August 2016, and the Notice of Risk filed 10 August 2016.
The father relied upon his Affidavit filed 9 August 2016, the Affidavit of his partner Ms S filed 9 August 2016, the Affidavit of the paternal grandfather Mr G filed 9 August 2016, and the Affidavit of Mr J filed 9 August 2016. The father relied upon his Case Outline filed 1 September 2016.
The father’s Affidavit filed 9 August 2016, in part, responds to the mother’s Affidavit filed 2 October 2014; the court, so as to understand the father’s responses in his affidavit, has had regard to those paragraphs of the Mother’s Affidavit to which the father has responded. In addition, the father’s Affidavit filed 9 August 2016 refers to numerous annexures with individual alphabetical letters (besides numbered annexures which the Court has had regard to). These particular annexures with individual alphabetical letters are not physically annexed to this Affidavit. Rather, they are annexed to the earlier Affidavit of the father filed 3 December 2014; the Court has had regard to these annexures with alphabetical letters that are referred to in the father’s affidavit filed 9 August 2016.)
The parties consented to the Family Report of Dr J being admitted into evidence (Exhibit B).
The Court has had regard to all the evidence in the proceedings including Affidavits, oral evidence, documentary exhibits, and submissions of the parties.
The mother’s evidence
The court now refers to relevant aspects of the mother’s affidavit and oral evidence; it does not represent the entirety of such evidence.
The mother’s partner moved to Queensland on 18 September 2016, and now lives there with the children A and B, who started living in Queensland in early October 2016. The mother currently lives in rented accommodation in (omitted) with the subject children and C.
Previously, the mother decided to relocate with the children to Queensland. The father instituted proceedings and in October 2006 an order was made for the mother to return to (omitted) with the children.
As a consequence of interactions with the father, and the mother’s reaction to those communications, and as a consequence of the need for further financial and familial support, the mother filed an Initiating Application on 18 October 2014, seeking to relocate to the Brisbane metropolitan area in Queensland.
The mother took five months off work following the birth of the child X. When the child was five months of age, the mother returned to part-time work in (omitted) every Saturday. When the mother was working, her parents looked after the child X for the vast majority of the time. This arrangement continued until the parties separated for the first time in June 2000. During this separation the mother remained the child X’s primary carer.
After the child Y’s birth in (omitted) 2005, and when she reached two months of age, the father’s mother cared for the children between 2 and 4 nights a week at the parties’ home whilst the mother was working night shift at (employer omitted). The mother was otherwise the children’s primary carer during the day.
The mother was the primary carer of the children during the parties’ relationship.
During the relationship, the father physically assaulted the mother on three occasions.
In June 2000, at about 8:00pm, the parties had an argument in relation to the child X and the father grabbed the mother under her arms, picked her up and threw her out the door onto the gravel outside their residence and shut the door. The mother sought assistance from her family members to come to the residence. The father grabbed the mother, and shoved her back outside, and in the process of doing so, slammed the door on the mother’s hand. The mother and her father went to (omitted) police station and made a report.
Following this incident, the mother stayed with her parents for three months before moving to (omitted) for several months. The parties attended mediation in January 2001. Following mediation the parties signed an agreement and the mother moved to Queensland in February 2001 with her parents and brother. The father had agreed for the child X and the mother to move to Queensland at this time and the father was given at least one month’s notice of the mother’s intention to move to Queensland. The mother and the child X returned to the (omitted) area in January 2002. In June 2004 the father moved in with the mother and the child X.
In about early June 2004 at the parties’ residence at (omitted), the parties had an argument at night-time. The father came towards the mother and put his hands around the mother’s neck and squeezed. The mother started crying. The father let go, and, when the mother caught her breath, she told the father to leave.
In May 2006, the parties had an argument. The father told the mother to shut up or he would throw her out the door like he did before. He then grabbed the mother by her shoulders. He began leaning over the mother and the mother was so frightened that she backed off and went quiet. The children saw this incident and the child X was crying, so the mother took both girls to X’s room to calm them down. The child X was hyperventilating and the mother was shaking.
The parties separated in May 2006.
During the course of the parties’ relationship, particularly in late 2005 to early 2006, the father would often yell at the mother about the state of the house and about the children generally. As a consequence of these arguments, the mother “felt like less of a woman.” She found that she would stay quiet in the house; for fear that anything she would say would lead to an argument with the father. After the parties separated, the father was highly critical of the mother as a mother and her parenting. This caused the mother to go through bouts of feeling worthless and losing confidence in herself. The mother’s reaction to the father and her anxiety about having arguments with the father continued following the separation.
In 2006 following the separation, the father would visit the mother and the children. The father made provocative remarks to the mother about her body. The mother did not respond to the father’s comments, she felt uncomfortable and was scared that if she was abrupt in her response, then the father would get angry.
In August 2006 the father was insistent that the child X spend two nights in a row with him. The parties had an argument about this proposed arrangement. The father lowered his tone of voice, gritted his teeth and spoke to the mother aggressively stating, “If this was to go to court, I would get a lot more than you are letting me.” The mother began to get scared, and she ran inside and shut the door. She took time off after this incident as she was scared and distressed by the interaction with the father that she felt that she had no say in the arrangements for the children.
Changes to the parties’ arrangements for the children, instigated by the father, continued on a number of occasions in the second half of 2006. The mother would make arrangements with the father and he would continue to update them and change them without asking the mother first. The mother became anxious every time the phone rang, she was concerned that the arrangements would change and she would have to communicate with the father again. The mother would just sit at home, and wait for a phone call or to find out when she was collecting the children. This made her feel silly, frustrated and anxious.
In August 2006 the parties attended a P&C meeting at the children’s primary school. The parties had an argument in relation to the father picking up the child X on the Friday. The mother responded by telling the father that she had previously told him that that child was attending a birthday party which she dearly wanted to go to. Then the father crossed his arms, puffed out his chest and stood over the mother. He then started yelling at the mother.
Due to the mother’s interactions with the father, and her incapacity to communicate with him or negotiate with the father in any way, and due to her lack of support in (omitted), the mother relocated to Queensland in September 2006. Orders were made on 24 October 2006 for the mother to return to (omitted) with the children.
Pursuant to the October 2006 Court Orders, the children spent time with the father each alternate weekend (Y daytime only) and each Wednesday afternoon. The changeover was at (omitted) Police Station. The mother did not feel comfortable with any other location for changeover in circumstances where she felt that she could not interact with the father by herself or at a mutual location where there was no other authority figures present.
During the period from October 2006 to September 2009, when final orders were made, the mother being permitted to relocate to (omitted), the mother received an abusive phone call from the father relating to the cancellation of a soccer game while one child was in the father’s care, and on another occasion in about September 2007 the father yelled at the mother over the telephone after she had told the father words to the effect, “You can’t keep cancelling on me. I have an appointment.” At this time the mother became very distressed and she had to hang up the telephone.
On one occasion in April 2007, the father acted aggressively when he snatched the child Y out of the mother’s arms and accidentally elbowed the mother in the back. The child Y became very upset, and she became increasingly stressed before and after changeover.
In 2010 the children spent time with the father after school each Tuesday and Thursday, each alternate weekend in school holidays during the short-term school holiday period and week about time during the summer school holiday period. In 2011 this time changed so that the children spent time each Wednesday night as well as alternate weekends and half school holidays.
Up until about May 2010 the father was living in (omitted). In about May 2010 he moved to (omitted) and then he moved to (omitted) in about late 2011/early 2012. In February 2015 the father moved to (omitted), near (omitted). There was a confrontation between the parties in late February 2015 when the mother yelled at the father outside the younger child’s school, claiming that the father had not talked to her about his new residence being outside a 35 km distance from the children’s schools at (omitted) (see order 9.2 of the Courts Orders of 14 September 2009).
Following the September 2009 court orders, there were a number of instances when the father would change the care arrangements for the children with short notice to the mother. This would require the mother to make alternative arrangements for the children. For example, on 3 February 2013 the father emailed the mother stating,
“I know this is terribly late notice..I am going to (country omitted) on Wed 06.02.13 and returning on the 17.02.13 . Therefore I will not be able to have the girls on the 06. 02. 13, the 13. 02. 13 or over the weekend of the 15, 16, 17 and 18th. I will pick them up again on the 20. 02. 13. I apologise for not letting you know sooner.”
The father conceded that on occasions, due to the nature of the industry in which he is employed, his proposed work is cancelled, and he is then able to spend time with the children. He would then ask the mother that he spend time with the children, effectively seeking to reinstate the time that he would otherwise have been spending with the children.
On 8 April 2016, when the parties were organising changed arrangements to a change over, the mother heard the father, whilst he was on the telephone to the child X, say words to the effect, “ask your mother what her fucking problem is.”
The mother continues to get anxious and distressed at changeovers or communicating with the father. In about 2015, her new partner would check her email correspondence from the father and read it out to her. As a consequence of the mother’s reaction to communicating with the father, her solicitors sent the father correspondence in September 2016 asking that all parenting arrangements would be sent through them from hereon. Thereafter, the father would generally text message or email the mother directly. The mother still felt distressed and anxious when she would receive a text message or email from the father as she would still worry about what it would say, and she still would read an aggressive and intimidatory tone into the correspondence.
The mother continued to get stressed and anxious by the father and continues to feel like the father will push the boundaries in the same way that he did in 2006, when the parties first separated. For example, on 1 July 2016, the father was to collect the children from school at the commencement of school holidays. In the afternoon the child X rang the mother telling her that the child Y had forgotten her gloves and needed them. The mother could hear the father in the background state that he would drop Y at the end of the street and she could run down and grab the gloves. The mother stated, inter alia, that she could post the gloves. The mother then received a text message from the child X stating that the child Y would run in and get the gloves. She stated that she thought the father was going to stop at the end of the street. The mother became distressed and anxious when she read this text message. She started crying and rang her mother, asking whether the father was going to be in the mother’s street or come to her house. She stated that she had nobody to help her. The mother requested her new partner to come home and assist her. The mother calmed down quite significantly after her new partner arrived home although she was still highly distressed.
Since the mother’s new partner moved to Queensland, the mother has become particularly anxious in her interactions with the father as she feels that she has no support in Sydney in her dealings with him. The mother’s heart races and her breath quickens when she knows she has to see the father. The mother believes that one of the benefits that she can see for her own health and well-being, in relocating to Queensland, is that she will have less communication with the father. Specifically, the mother will not need to be the father’s “back up” and will not need to restructure her days when the children are in his care, in case the father needs the mother to pick up the children at little notice. The mother believes she will also have a great deal of comfort in the idea that the parties will not be living in the same city, and she feels that she will stop feeling intimidated by the father. In this context, at one point in the cross examination of the mother, the mother referred to the father’s argumentative responses when communication between the parties occurred which she sought to avoid. At another point in cross examination, the mother stated that, were she residing in Queensland, there would be less need to communicate with the father by way of emails and text messages because alterations to changeover times would not be needed to be made.
In about 2007 the mother began to see Mr S, psychologist, regarding her interactions with the father and to assist the mother to cope with her anxieties in interacting with the father moving forward.
On 26 September 2010 the mother had a stroke. The mother attended hospital and was referred to a neurologist who confirmed the stroke.
The mother’s partner Mr A moved to Queensland on 18 September 2016. The children A and B stayed with him in Queensland from early October 2016 to date.
Apart from the mother’s stress communicating and interacting with the father, and stress of the proceedings, she is happy and well. As at (omitted) 2016, the mother was 32 weeks pregnant.
The child X, aged 17 years, has told the mother that she wants to remain living with the mother. She told the mother that she wants to change schools and that the (omitted) High School sounds like a good school. This child has informed her Deputy Principal at (omitted) High School about the breakdown in friendships at the school; she had been having some problems in a few of her subjects because of these breakdowns. In cross examination, the mother stated that the child X was thinking of dropping the subject drama by reason of friendship breakdown. The mother also stated that the child X makes friends easily, in the context of X starting a new school in Queensland.
The mother states that she and the child X are very close. She has observed that the child X and her partner Mr A have a good relationship.
The child Y is 11 years of age and is in Year 5 at (omitted) School. She has recently suffered from bullying at her school. She did not want a birthday party (her birthday is (omitted)) and has told the mother that she doesn’t have any friends at school. (The father, to the contrary, maintains that this child has developed some close friendships in the last two years at school). She also is very close to the mother.
The father has assisted the child Y with her school work when she spends time with him. He has discussed this child’s academic progress with her teachers.
The father attends the children’s extracurricular activities, including music performances. His family have been able to attend certain music concerts in Sydney.
The child Y also has a close relationship with the mother’s partner Mr A. She enjoys spending time with the father.
The mother now lives in an apartment in (omitted) with the children and the child C. It is a short-term lease and the mother and her partner Mr A pay $900 per week. The mother’s partner Mr A, and the children B and A live in the property that they own in (omitted). This Queensland property was purchased shortly after March 2015 for $310,000. It is situated about 35 kms north of Brisbane city. It is a five bedroom home on an 815m² block of land and is in good condition.
The mother has weekly expenses, including the $900 per week rental referred to above, totalling $2,115.
The December 2014 Court Orders provide for the children to spend time with the father each Wednesday night, alternate weekends and after school holidays. The child X has not spent time with the father on Wednesday since 2013, and the child Y has spent time with the father from 3:00pm to 6:00pm only each Wednesday since February 2015.
The mother wishes to relocate to Queensland as soon as possible and before the beginning of Term 1, 2017.
The mother wishes to relocate for a number of reasons. The first reason is that she and her partner Mr A have no family support in Sydney and the mother is finding it difficult to manage her home life and the children’s school activities without additional support. While the mother’s partner Mr A has family relations living in New South Wales, he does not have a close relationship with his family. The mother and her partner cannot afford to have a nanny, or to have the children spend more time in childcare, and the mother would greatly benefit from having the assistance of her parents, her brother and his wife in some of the day-to-day arrangements for the children.
Furthermore, the mother states it will be of great emotional assistance to her to have her mother around more. The mother and her mother talk almost daily on the telephone.
The mother has considered that the child Y spending further time with the father during school holiday periods will, to some extent, make up the time that this child will not be able to spend with the father if the mother is permitted to relocate to Queensland; the child Y will be able to spend consistent and long periods of time with the father, and the father’s new children.
The mother states that she still gets considerably distressed and anxious in her interactions with the father. She states that her proposal to relocate to Queensland allows for some distance between the parties, which the mother hopes will make her less anxious in the interactions between the parties. The mother’s proposal has no face-to-face time between the parties, which the mother believes will make her far less stressed and have a flow on effect to her behaviour generally and by extension to the child X’s behaviour as she is generally distressed when the mother is stressed.
The mother owns a property with her new partner at (omitted). This property is about 30 minutes by car to the maternal grandparent’s home. It is also about 33 minutes by car (depending on traffic) to Brisbane airport. (omitted) has a Medical Centre, which has 8 doctors on staff including an obstetrician and a psychologist, who has openings for the mother and the child X.
The mother proposes that the child Y attend Year 6 at (omitted) State School in 2017. The school has 1,000 students and the class size is on average 23 students (which is significantly lower than that of Y’s current class size of 28 to 30 children).
This school is about 5 minutes by car and a 20 minute walk from the mother’s home at (omitted). The school has a senior and junior concert band with a full-time music teacher on staff, and all children have weekly music lessons. The child Y is currently a member of the band and plays the (omitted). The band fees at this school are $70 per annum because the child Y has her own (omitted) (which is significantly less than the $640 a year that the mother and her partner currently pay).
The child Y presently attends (omitted) and has completed Stage 9. She will be able to continue her (omitted) at a (omitted) and (omitted) at (omitted).
The mother proposes that the child X attend (omitted) High School for Year 11 and Year 12 in 2017. This is the same school that the mother proposes that the child Y attend in 2018. The school is a Year 7 to Year 12 coeducational school. It is one of Queensland’s highest achieving schools, both academically and in the arts. It offers a wide range of subjects, including a (omitted) Program, which help students excel in their own chosen instrument. The mother has received verbal confirmation from the school that there are places available in English, (omitted), (omitted) Studies and (omitted). The child X would not be able to complete (omitted) Studies for her Higher School Certificate (which she is currently enrolled in) but would be able to pick up ‘(omitted) and (omitted)’ which is available, and the mother has also received verbal confirmation that this child will receive recognition of prior studies because she is currently studying the subject as part of a (omitted) course at TAFE. This school is about 10 minutes by car from the mother and partner’s home at (omitted).
As the child X is a high achieving student, she is eligible for a (omitted) Program at the (omitted) School which is a program offered to Year 12 students only to get a head start with university education. It is a scholarship-based program where students are given the opportunity to study one university unit per semester whilst completing Year 12. They receive credits of these units that will go towards their future university degree. One of the units offered for the (omitted) Program is ‘Introduction to (omitted) and (omitted)’. This is a field the child X wishes to pursue as part of her overall future career.
The mother’s brother and his fiancée live on the same property as her parents. The mother states that her parents, brother, and future sister-in-law will be around if she needs assistance.
The (omitted) property is a five bedroom house with a front and back yard, there is enough space at this property to allow for the mother’s parents to stay the night. Accordingly, the mother states that her parents are available to assist in the day-to-day running around of the children (should that be required) or to babysit the younger children if the mother and her partner need to attend parent/teacher interviews, school concerts, and assemblies.
Further, the mother states that her mother will be available to spend time with her during the day on a regular basis, she being the mother’s best friend. The maternal grandmother has her own driver’s licence and car. In cross examination of the mother, the mother stated that the maternal grandmother would be able to help her with her three youngest children, enabling the mother to give more one-on-one attention to the child Y who is presently craving her time. In cross examination, the mother stated that her parents have family ties to Queensland, they have friends in Queensland, and they have lived there a long time, and are well established in the community.
The mother proposes that she and her partner pay for the child Y to go down to visit the father two weekends per term (equating to roughly once every 3 to 4 weeks). The mother proposes that these weekends take place on specific dates that are important for the father and his family.
The mother proposes that the child Y spend all of the May Labour Day long weekend with the father. She also proposes that this child spend 9 days with the father each short term school holiday period. The mother wishes to ensure that this child maximises the last week of the school holiday period with the father (as the New South Wales school holiday period is generally a week after the Queensland school holiday period), and therefore, it is more likely that the father’s new children’s school holidays will cross over.
The mother and her partner have set aside $20,000 in a fund reserved for flights for the child Y (and the child X should she wish to travel) during school terms and school holidays, so as to facilitate the child spending time with the father in Sydney. In cross-examination of the mother, the mother stated that it was possible, if booking flights months in advance, to obtain very cheap flights and she gave an example of a very cheap specially priced flight ticket with a budget airline.
The mother also proposes that the father be able to communicate with the children via email, face time and/or Skype on a liberal and flexible basis.
The mother also proposes that the father be able to spend time with the child (and also X) in accordance with her wishes on a further 2 occasions each school term if the father is to travel up to Queensland, and this could either be during the school week or during the weekend. The mother is willing and able to facilitate the child Y spending time with the father during the school week, on the basis that the child continues to attend school.
The mother proposes that she and her partner pay for all of the children’s travel during the school term. She then proposes that the parties be equally responsible for the costs of flights during the school holidays. The mother is aware that there would be costs associated with the father spending time with the children, and therefore, it is likely that her child support would be reduced. The mother is willing and able for that to occur as she wishes to ensure that the children are able to continue their relationship with the father as well as his family.
The mother has spoken to the child Y about the proposed relocation to Queensland. The child has told the mother that she really does want to move to Queensland with the mother but that she is concerned that she may miss the father and his new child D. The mother told this child that she would make sure that she could still see them, the mother referred to the child and the father’s email correspondence, and had showed the child how to send pictures. The child Y nodded to the mother and smiled during this conversation.
In 2014, the mother spoke to the child X about whether she wished to relocate to Queensland. This child travelled to Brisbane to attend an interview with the (omitted) of (omitted) ((omitted)) in 2014. Thereafter, the child became keen to move to Queensland. The mother and this child have discussed the child completing Year 12 at the (omitted) School; this child has told the mother that she thinks that the school, “sounds great and that my units would be covered and that would be a good opportunity.”
The mother states that the child X has made a number of comments to her, the school and her psychologist, that cause the mother to believe that the child wants to move to Queensland and wants to move prior to starting her HSC year.
The father states that the child X has displayed signs of anxiety about having to move to Queensland and only being able to communicate with her boyfriend (omitted) via Skype or social media.
In relation to the child Y having told the Family Report Writer that she would like to see more of the father, the mother states that she is hopeful that if the child spends more time with the father during the school holidays, that will, to an extent, alleviate the consequences of the relocation to Queensland. The mother is hopeful that this child and the father are able to utilise other methods of communication (email, Skype, Face Time and text message) that will ensure that the relationship does not suffer. The mother states that she will be vigilant with respect to how this child is coping in spending less time with the father. The mother states that she is hopeful that with the extra support that she is able to give the child Y, that child will be looked after properly with respect to making any adjustments in spending less time with the father. In cross-examination of the mother, the mother stated that in the past the child Y had not suffered stress when she had been absent from the father for 3-4 weeks.
The mother states that it has been very difficult to co-parent for a period of 10 years after separation, and that the anxieties that she feels are genuine. The mother states she has sought assistance in relation to her anxieties but she has not ever been able to move entirely past it. The stroke that the mother suffered from in 2010 further complicated her anxieties, as her physical well-being was diminished as a consequence, and that made things harder for the mother. The mother states that the situation in which she currently lives exacerbates her anxieties.
The mother states that her continuing to live in Sydney is causing her to suffer anxiety, and consequently, the mother is concerned that she is not as effective a parent as she would like to be. The mother is hopeful that upon moving to Queensland she will be a better mother. Consequently, the mother believes that if she can be a better mother to the children, and be less distracted, anxious and overwrought, the difficulties of raising 3 (soon-to-be 4) young children, then she will be able to communicate more effectively with the father, and his relationship with the children will be better as a consequence.
In cross examination, the mother confirmed that her face-to-face contact with the father increased her anxiety condition. At one point, during her cross examination, when she stated that the father’s demeanour and his overbearing manner caused her anxiety, the mother was visibly upset in the witness box.
On another occasion during cross examination of the mother, the mother became visibly upset when she read sections of an email from the father to her of 18 February 2015 (Exhibit C). She had stated that the emails within Exhibit C did not represent the worst accusatory, belittling or intimidating emails from the father that she had previously received from him.
On yet another occasion, during cross examination of the mother, when it was put by the father to the mother that the mother refused to talk to him on the telephone, the mother stated that the father would yell at her on the telephone as soon as the mother disagreed with anything stated to her by him.
Father’s evidence
The court now refers to relevant aspects of the father’s affidavit and oral evidence; it does not represent the entirety of such evidence.
The child Y is progressing at an acceptable level at the (omitted) School.
On occasions over the previous 4 years, the father has had to miss time with the children, due to his work or study commitments.
The father is concerned that the child X’s education will suffer if she moved to Queensland. He states that the child is firmly established, and is excelling in her current school. He states the child has an excellent rapport with the students and teachers alike.
The father states that he will not be able to have 6 weeks leave at Christmas to spend with the children.
The father has set out his concerns in relation to the proposed relocation to Queensland, in particular at paragraphs 179 to 213 of his Affidavit filed 9 August 2016. The Court has considered these stated concerns and will not set out in these reasons each separate concern of the father.
The father states that the children are happy and established in Sydney.
The father is concerned that if the mother and children move to Queensland it will severely reduce the amount of time the child Y will spend with him.
The father is concerned that a move to Queensland will unnecessarily disrupt the children’s education in Sydney and have a detrimental effect upon them.
The father is concerned that his family is not in a position financially to travel to Queensland for, inter-alia, school functions, liaising with school teachers, children’s birthdays or any other special occasion. The father states that he has recently been declared bankrupt, after struggling for 8 years to pay off $90,000 of joint debt between the parties. He states that he is on a starting salary with his new employer. His employment contract states, inter alia, that his minimum weekly work hours are 30 hours; fieldwork will often require extra hours to be worked and is remunerated with a bonus (ie weeknights $80, Friday/Saturday nights $270, Sunday night $160, Saturday/Sunday day rate $220); an hourly rate of $24 per hour exclusive of superannuation contribution will be paid; his basic annual salary based on the minimum hours of 60 per fortnight will be $37,440.
Exhibit G is a letter dated 24 September 2016 from the Director (employer omitted) of the father’s employer which states, inter-alia, that the father’s
“continued requirement to appear in Court to defend his right to access his children and stop their movement to Queensland, not to mention other actions required, has had a detrimental effect on both his income and his development as a (omitted). He has had to take considerable unpaid leave for these Court appearances and it has stopped his participation in major (omitted) projects both within Australia and overseas, where we would normally expect our staff to gain valuable experience in both project management and the various (omitted) techniques we use. It also results in a considerable loss in income for (the father) as bonuses are paid for staff that are on site outside of Sydney. This has resulted in slower than expected progression in the company and slower acquisition of skills that could allow him access to the wider (omitted) job market (such that it is in the current climate.”
The father is concerned that the mother will not facilitate communication with the children if the move to Queensland is permitted.
The father stated in oral evidence that he earns $60,000-$70,000 pa.
Early in the cross-examination of the father he stated that he had done nothing to cause anxiety in the mother. He stated that certain past instances of family violence committed by him against the mother were minor to him, although he was ashamed of it. Since 2006 he had done nothing that would cause the mother to feel intimidated. The father stated that he believed that the mother had sought to make life difficult for him regarding the children at every turn.
The father’s attention was drawn to paragraph 5 of his partner’s Affidavit, in which it was stated, inter alia, “I believe (the mother) is the only one standing in the way of (the children) having a similarly enjoyable childhood.” The father agreed that the statement was not complimentary of the mother. He agreed that paragraph 19 of the Affidavit of his brother was unflattering of the mother. The father stated that the mother, now knowing of the criticisms of her by members of his family, may not want to call on them for assistance.
The father stated that as soon as he disagrees with the mother, communication is shut down by her.
The father stated that in his view the mother would not comply with any future Court Orders in relation to the children spending time with him.
The father stated that the children’s relationship with him is excellent.
The father confirmed that he has a computer, and that he could communicate with the children through Skype or FaceTime.
The father confirmed that he sought orders regarding X. He stated that the mother favoured this child at the expense of Y; the Court notes that this assertion is not stated in the father’s Affidavit and it is not accepted by the court.
The father stated that X gets her strong views from him. He stated that he was assertive with the children. He accepted that he could have communicated differently with the mother. He accepted that the mother could have reacted adversely when he communicated his strong views to her and was assertive with her.
The father was cross-examined in relation to his proposed order that the child Y spend time with the parties in a week about arrangement. The father was asked how he could co-parent effectively with the mother, being a person who he had previously stated had sought to go against him at every turn in relation to the children. The father stated that he would seek to be less assertive in his communications with the mother or he would get someone else to communicate with the mother.
Assessment of parties’ respective evidence
The father, clearly an intelligent and well educated man, being a qualified (occupation omitted), failed to cross-examine the mother as to significant portions of her affidavit evidence, including little if any cross-examination in relation to family violence evidence of the mother. In this context, the father was informed by the court at the start of the trial of the possible consequences of his failure to relevantly cross-examine a witness.
The mother presented as a truthful witness and the Court accepts her evidence.
The father presented initially in oral evidence as dismissive of the mother’s assertions that she had been detrimentally affected by the father’s communications with her. (The court notes that the father’s cross-examination of the mother in this context was similarly dismissive). In this context, the court found the father’s oral evidence in cross-examination in its latter stages, when his answers suggested a new found appreciation of the mother’s adverse anxiety reactions to his communications with her previously, including his preparedness to be less assertive in future communications with her, to be particularly unpersuasive and disingenuous.
The father’s cross-examination evidence was often defensive and responsive questions given only following questions by the court. The court found his overall evidence on the relocation issue to be particularly coloured and one-sided by his clear determination to resist the mother’s proposals as to relocation.
Ultimately, the court had serious reservations as to the reliability of the father’s evidence when in conflict with the evidence of the mother. The Court accepts the mother’s evidence where it conflicts with the father’s evidence unless otherwise indicated in these reasons.
Evidence of father’s partner, Ms S.
Ms S was filed on 9 August 2016.
In cross-examination, her attention was drawn to paragraph 5 of her Affidavit in which she stated, inter alia, that “I believe (the mother) is the only one standing in the way of (the children) having a similarly enjoyable childhood.” She stated that the mother was the only influence upon the children suffering from anxiety and stress in their lives. She stated that she had not known the father to be responsible for any difficulties in the parties’ relationship.
She stated that she believed all the father’s past communications with the mother had been fair and temperate. She stated that there had been times when the father had been frustrated in his dealings with the mother and she had observed that in emails between the parties. She stated that communication between the parties had been problematic. She stated that it sounded right that the parties could not communicate. She was not aware of all three occasions that the mother had alleged that the father had been violent to her between 2000 and 2006.
Ms S was asked whether the mother had any role in promoting the children’s excellent relationship with the father. She stated that she could not answer that question.
Ms S agreed that the father had been very diligent in ensuring that he has a good relationship with the children. She agreed that the father would do everything within his power to maintain the child Y’s relationship with him should the mother relocate with the children to Queensland, but that it would be very difficult in her view.
The court’s overall impression of the evidence of this witness was that she was significantly aligned to the father’s stance in the proceedings and it would not accept her evidence when in conflict with the mother’s evidence.
Evidence of the father’s brother, Mr J
Mr J was filed 9 August 2016.
Mr J was asked in cross examination whether he had stated a number of negative things about the mother in his Affidavit. His response was that he had made statements of fact and observations of fact in his Affidavit.
Mr J stated the father has an excellent relationship with the children, and that was despite the mother’s attempts to separate the children from the father. He was not aware of any past family violence committed by the father against the mother.
Mr J was asked whether any of the problems between the parties could be laid at the door of the father. His response was that in any argument there are two sides. He stated his view that the father and the mother were highly incompatible people. With such incompatible people he stated there are problems.
Mr J agreed that the father would take every step he could to ensure that his excellent relationship with the children continued.
The Court found Mr J to be also particularly aligned with the father’s cause. He did not have a full awareness of the historical nature of the parties’ relationship, including family violence. Nevertheless, his oral evidence that the parties were incompatible had a ring of truth to it.
Reports of mother’s treating clinical psychologist, Mr S (annexure K to the mother’s Affidavit filed 26 October 2016)
Mr S’s report dated 20 November 2015.
Mr S first consulted with the mother in April 2007. There were regular consultations by the mother with Mr S during each of the years from 2007 to 2015, including 11 appointments in 2015. In 2007 the mother’s initial presentation showed symptoms of depression, anxiety and emotional distress. She was tearful, extremely shaky, jittery and trembling. She described poor concentration, poor sleep, constant worry and fear, concern to the children, stemming from the breakdown of the long-term relationship. The mother feared anger and possible violence from the father. Mr S states that over the years he has worked with the mother, the mother has shown remission an escalation of symptoms, primarily depression and anxiety. He states that the correlation that he has observed is that the more contact the mother is required to have with the father, and the more acrimonious that contact is, the greater the mother’s symptoms.
Mr S states that the mother’s presentation, symptoms and history have always been consistent with Adjustment Disorder with mixed anxiety and depressed mood. As at 20 November 2015, Mr S stated that that diagnosis continued to be valid and current.
Mr S noted that the mother had reported that the father was emotionally and verbally abusive which led to the separation. Following the separation, the mother stated that the father continued to be verbally and emotionally abusive and at times physically intimidating. Mr S stated that when contact between the parties had reduced, the mother had consistently shown improvement in her condition. He noted that there had been periods of time when the mother had been completely symptom-free when the father had been away or out of contact for extended periods of time. He noted that Adjustment Disorder, by definition, remits, once the stressor or the consequences of the stressor cease.
Mr S refers to the mother, for the past 18 months, having been receiving accusatory, belittling and intimidating contact or communication from the father. He states that this has been very arduous and distressing to the mother. He states that it has made the mother’s task of parenting the younger children very difficult. He states that the mother’s physical and mental health are currently at general risk due to the acrimony of contact and interaction by the father.
Mr S states that he has been provided with a lengthy history of consistently negative and acrimonious interaction between the parties, “the quality and quantity of which would be expected to cause any person distress and ill health”. He states that he has been shown text and email communication which have supported the history presented to him by the mother.
Mr S states that in his opinion the mother relocating to Queensland would be greatly beneficial for the mother.
Mr S’s report of 8 August 2016
Mr S referred to his clinical notes relating to consultations with the mother on 11 November 2015 and 16 February 2016, when the mother presented in a highly distressed emotional state including tears, agitation, fear, despair, anger and a demoralising low mood. The mother was very concerned about the children.
She reported that the father had been very inconsistent in managing the girls’ care (for example, ordering the days and times of change over, offering transport and pickup arrangements) and had been difficult to communicate with directly. The mother had informed Mr S that this had confused the children to the point that they felt very torn loyalties, and were crying a lot, that the child X had felt the need to arrange her own counselling through the Headspace program, and that the child Y was extremely insecure and clingy, demanding to sleep in the mother’s bed, and not even allowing the mother to go to the toilet without sitting outside the door to wait for her. Mr S stated that the distress the mother experienced stemmed mainly from her inability to deal reasonably and amicably with the father, and the dread of being intimidated by him through the process of communicating about the children.
(The Court interpolates here that in cross examination of the mother, the mother stated that the above emotional reactions of the children such as crying may not have been because of the father’s conduct. Nevertheless the Court accepts that the mother’s statements to Mr S in this context represented the mother’s beliefs in this regard.)
Mr S noted that by 16 February 2016, the mother had recommenced an antidepressant, on prescription by her GP.
Mr S noted that on 29 March 2016, the mother again attended a consultation because of concerns about the children. Additionally, the mother was concerned about her own health, in that the high levels of stress she was experiencing were placing her cardiovascular health at risk (the mother had a history of a stroke). Cognitive therapy and mindfulness relaxation was used to reduce cognitive and physical stress of the mother.
Mr S noted that on 17 May 2016 the mother had reported that her solicitor had made arrangements for the communication with the father to go through her solicitor’s office. He noted that this arrangement had a significantly beneficial impact upon the mother in reducing her distress and improving her overall health.
Mr S noted that through June and July 2016, the mother reported continuing frustration in communicating with the father. However, the new arrangement of communication going through the lawyers was helping.
Mr S summarised by stating that the mother’s diagnosis of Adjustment Disorder with mixed anxiety and depressed mood remained valid. He stated that the acrimonious relationship with the father appeared to be a (if not the) significant contributing factor. The mother continues to avail herself of supports, receiving medication and cognitive behavioural intervention. He stated that it was likely that the mother would recover fully from her condition once the pressures and stressors causing it had ceased in accordance with the DSM 5. Mr S stated that if the mother was able to move to Queensland to live in proximity of her family of origin and thus family supports, she would be strongly advised to do so.
The Court accepts the evidence within Mr S’s reports. In this context, the court notes that the father cross-examined the mother as to aspects of Mr S’s reports, having had access to Mr S’s practice’s subpoenaed records. The court notes the father, at the start of the trial, was informed by the court, inter alia, of his entitlement to tender relevant subpoenaed documents. The court notes the father, later in the trial, briefly cross-examined the Family Report Writer in relation to Mr S.
The Court should state that even absent the evidence of Mr S it still would have found, again accepting the evidence of the mother (as previously discussed), that she has suffered, and continues to suffer, adverse emotional disturbances from her contact and communications with the father.
Evidence of the maternal grandmother, Ms F
The maternal grandmother is 57 years of age. The maternal grandfather, Mr K, is 60 years of age. Their first child was Mr E, aged 40 years, and then the mother.
The maternal grandmother affirmed her Affidavit filed on 11 August 2016. She confirms the mother’s evidence that the mother and herself enjoy a very strong relationship. The maternal grandmother considers the mother her best friend. Historically she had spent regular time with the mother when the mother and herself were living close to each other, either in Sydney or in Queensland.
The maternal grandmother gave supportive evidence of the mother in relation to the mother’s anxiety; she had observed the mother during the relationship with the father and following the separation that the mother had become stressed and anxious. The maternal grandmother stated that this had occurred more frequently following the parties’ separation, particularly when the parties disagreed regarding the children, or when the father changed plans “at the last minute”. The maternal grandmother noticed on those occasions that the mother became very flustered with her words and demeanour, and sometimes became visibly distressed.
The maternal grandmother stated that she was in a position to assist the mother with babysitting and transportation, should the mother be permitted to relocate with the children to Queensland. The maternal grandmother stated she was in good physical health, she has not been diagnosed with any health conditions and she does not take any medication. She regularly attends (hobby omitted) lessons and otherwise participates in community activities. The maternal grandfather has been diagnosed with chronic depression; he is high functioning a great deal of the time, however sometimes there are periods when he is confined to bed and the maternal grandmother assists him with his care. The maternal grandparents still have their full drivers’ licences. The maternal grandparents have lived in the state of Queensland since 2004 and have no plans to move from their home.
In cross examination, the maternal grandmother stated, inter alia, that the mother had suffered anxiety for a long time. As to the father having changed plans “at the last minute”, the maternal grandmother clarified that this meant the father giving less than a day’s notice. The maternal grandmother confirmed that she does not propose to move to New South Wales. She has friends and family in Queensland, ties to the community where she lives, and enjoys living there. She stated that she had put a lot of effort into her home. The maternal grandmother stated that her home had been placed in her son’s name because he suffers from schizophrenia (he is treated with medication and his fiancée assists with his care) and if anything happens to the maternal grandparents, he will have the home. The maternal grandmother stated that the maternal grandfather is usually able to leave the home.
The maternal grandmother was an impressive and truthful witness and the court accepts her evidence.
Evidence of Mr A, the mother’s new partner and husband
Mr A was filed on 26 October 2016.
Mr A is a (occupation omitted), and he has been working as a (occupation omitted) for almost 20 years. He is presently working for a private company in Queensland where he is responsible for (employment omitted). He started this role in September 2016. He is second in charge of his division and received a pay increase from his previous role in Sydney which paid $72,000 (excluding overtime and allowances) and he now receives $81,000 (excluding overtime and allowances).
Mr A stated that the maternal grandmother assists in the care of the children, B and A whilst he is at work. He states that his current role allows him to work close to (omitted) which keeps costs of transport lower, and allows him to spend more time looking after A and B.
Mr A gives supportive evidence to the mother in relation to the father having previously changed arrangements to spend time with the children. He refers to his observations of the mother’s consequential anxiety.
Mr A gives supportive evidence to the mother in relation to the child X’s previous travel to Queensland to participate in an interview with the (omitted) School. He gives supportive evidence in relation to the educational opportunities available at the (omitted) High School and (omitted) State School in relation to the child Y.
Mr A gives supportive evidence in relation to the $20,000 fund to be used for flights for the children travelling to see the father. He states that he agrees to be responsible for the cost of the flights and pay them from this fund, or otherwise from his weekly income.
Mr A referred to previous discussions with the child Y about relocating to Queensland. It was confirmed with this child that the mother and himself would make sure that the child would fly down once a month to see the father, and would make sure that she still spent the same amount of school holiday time with the father. Following this occurring, the child Y seemed to be content and was excited about moving to Queensland.
Mr A also refers to the lower cost of living in Queensland.
Mr A confirms that the maternal grandparents live about 25 minutes’ drive from (omitted). He refers to the mother having an uncle close to their home and also has cousins in Brisbane. The mother also has her grandparents, aunts, and uncle, cousins and their children living in (omitted) being about a 3.5 hour drive from (omitted).
Mr A refers to his close and positive relationships with the children.
Mr A refers to the mother in September 2010. He has observed that since that time the mother becomes tired more easily and also becomes easily anxious and stressed. The mother usually goes to bed straight after putting the child Y to bed. He refers to the mother’s anxiety within the context of rearing the younger children. He refers to his observations that the mother becomes anxious when she receives correspondence from the father. He has observed that the mother becomes quite anxious on a Sunday afternoon when it is time to collect the children from the father’s care. This was also the case during school holidays. He states that he has become particularly concerned about the mother’s health since his move to Queensland in September, as the mother is pregnant and is caring for three children, and as a result there is very little time for respite. He states there is no family nearby to where the mother is presently living if she is struggling to find time to herself. He is also aware that the separation of the mother from the younger children A and B has also added to her stress and anxiety.
Mr A refers to his decision to take his new employment role in Queensland. He refers to the new employment in Queensland presenting an opportunity for him that he wanted (e.g. the new employment provided him with the capacity to work with (employment omitted)), and that the new employment alleviated some of the financial difficulties of his family.
Mr A was cross-examined by the father. Mr A stated, inter alia, that he had seen emails from the father to the mother that he thought were abusive. He was asked whether he had seen any aggressive or abusive behaviour by the father towards the mother. He stated that he had seen the father act aggressively towards the mother outside a school when the father refused to release the child X’s bag. He stated his view that the mother’s anxiety would be alleviated by family support in Queensland. He stated that the cost of living was cheaper in Queensland, his job pays more, and he and the mother will have close family support which was the main thing. They hadn’t had that support previously.
In re-examination, Mr A stated, inter alia, that he had no chance to work in (employment omitted) in Sydney. He referred to the emails within exhibit C and stated that those emails were representative of the emails passing between the parties. He stated that both he and the mother found the emails upsetting.
Mr A was an impressive witness and the Court found him to be truthful. It accepts his evidence.
Family Report of Dr J dated 27 November 2015.
The Family Report Writer’s interviews with the parties, children and new partners on 22 November 2015.
He noted that the mother presented in a concerned manner. She was fearful that she may not be able to take the children to Brisbane and was anxious because the father does not appreciate her position. She stated that she left the father when he told her to leave the family home. She stated that, “He kicked me out and told me to take the children with me.” She told the Family Report Writer that the father had been dominating, overbearing and very critical. She asserted that on one occasion the father had grabbed her throat and pushed her to the floor.
The mother told the Family Report Writer that following the separation, in September 2008, the mother had sought an Apprehended Violence Order; however she withdrew her application when the father undertook not to harm her. When asked about her present relationship with the father, the mother told the Family Report Writer that his presence “triggers anxiety” in her. (The Court interpolates here that in cross-examination; the mother confirmed that her face-to-face contact with the father increased her anxiety condition. She stated that the father’s demeanour and his overbearing manner caused her anxiety.) She stated that sometimes, when she needs to think about the past, she begins to shake. She reported that now she does not engage the father and only uses emails to communicate with him.
The mother explained to the Family Report Writer that she wanted to live in Queensland because her parents, brother and cousins are there. She stated that managing three young and active children, together with the subject children, would be easier with the support of her parents; she would be able to give individual attention to each child more often than at present. She stated that the cost of living is cheaper in Queensland, and thus, more funds will be available for the children. (The Court interpolates here that in cross-examination of the mother, the mother stated that her family are presently experiencing financial difficulties running two households; one in (omitted) and another in Queensland. In any event, the mother confirmed in cross-examination that the cost of living was cheaper in Queensland, and in this context she referred to the usual rate notices, rents, groceries, and certain extracurricular activities for one of the children being cheaper.) She stated that she and her partner have a house in Queensland, that she was born in Queensland and grew up there, consequently she feels at home there. She came to New South Wales with her parents in 1997, when she was 17. Her parents returned to Queensland in 2000 and she remained in New South Wales having had the child X.
When the Family Report Writer asked about the mother’s present emotional state, the mother stated that she has been in contact with a psychologist since 2007. She stated that she confers with him “as needed” and usually once every six weeks. She stated that while she is “okay most of the time”, she consults her psychologist when she reacts to an “assertive” email from the father.
The mother told the Family Report Writer that the child Y is excited about the possibility of moving to Queensland and she has, on her own initiative, informed her teacher accordingly. The mother stated that the child X seems “unfazed” about the possible move and will accept whatever happens.
The mother told the Family Report Writer that before the child X was about to commence year 10 she was selected by a Brisbane school that caters for outstanding students and provides courses in line with her ambitions. The mother stated that she had moved to Queensland previously in the hope that she and her family could remain there. But, because the father had enforced the orders, she had to return to New South Wales and forgo the opportunity available to the child X.
The Family Report Writer interviewed Mr A, the mother’s partner. Mr A impressed the Family Report Writer as a supportive partner whose priorities focus on his family. Mr A contended that because the mother’s three young children are demanding, the mother needs the support of her parents. He stated that financially the family would benefit by living near Brisbane and he contended that the five children are proving to be expensive. He pointed out that while the father pays child support, he and the mother are required to meet much of X’s and Y’s needs. He added that with the mother’s parents able to provide assistance, the mother would be able to give each child more time on an individual basis.
The Family Report Writer interviewed the father.
The father admitted that during the relationship he had pushed the mother in the child X’s presence. He added that he regretted the incident. He reported that the mother would not discuss her concerns with him. The child X had told the father that she was concerned about her mother crying.
The father told the Family Report Writer that his description of his present relationship with the mother was “strained or non-existent.” The father stated that the mother insists that he collect the children from the school and not her home, because the mother “cannot trust” him.
The father told the Family Report Writer that the mother’s parenting proposals would involve him picking the children up at the airport on a Friday night and returning them on Sunday afternoon which would involve considerable travel and would allow, effectively, only Saturday to plan significant activities. He stated that a reduction in time with the subject children of more than 50% is too much. The father stated that the mother’s desire to live near her family in Queensland is not a sufficient reason to diminish his time with the subject children, or to lessen their involvement with his parents and family who live in the (omitted).
The father told the Family Report Writer that the child X plans to work in the film industry.
The Family Report Writer interviewed Ms S, the father’s partner. She presented as intelligent and capable, willing to include and care for the subject children without appropriating their affections. She stated that the father has a strained relationship with the mother and that he finds it difficult to confer with her.
The Family Report Writer interviewed the child X. She impressed as a quiet, but intelligent and competent 16-year-old. She stated that she was in year 10 at (omitted) High School. She stated that she was aware that the parties were in dispute about the mother’s desire to move to Queensland, and stated that moving to Queensland “would be good” for the mother and siblings. She stated that she didn’t really have a preference, and didn’t mind if she stayed in Sydney or went to Queensland. She stated that she had been disappointed because she could not attend the special Queensland school from year 10 because she would have been able to concentrate on creative subjects. She explained that she wants to pursue a career in (omitted), or, if that ambition is not possible, she wants to be an (omitted).
The child X was asked by the Family Report Writer how she felt about spending one weekend per month with the father. She answered, “That would be all right”, but she agreed that the father would feel “a bit disappointed.” She stated that whatever happens, she was living with the mother because she has “always been” with her. She stated that it would be “really good” for the mother to go to Queensland. She stated that the father has only one baby to worry about and he has got his family down here. The mother did not “have that”. She added, “I will move out when I am 18, so what Y wants to do should be taken into account.”
The Family Report Writer interviewed the child Y. She presented as a pleasant and polite 10-year-old. The child stated, inter alia, that she has “never thought about living with the father”, and that she likes living with the mother because she “gets to see her sister and brothers.” She spoke positively about both parents. When asked if she would like to see more of the father the child nodded in agreement.
Under the heading “Evaluation”, the Family Report Writer stated that the mother appeared to be genuine when she indicated that she needs to be close to her parents and is distressed by being away from them. The mother had made it clear that she wants the subject children to have a relationship with the father, and she believes they should spend time with him regularly.
The Family Report Writer stated that parenting arrangements were less critical for the child X. She impressed as a mature teenager who is ready to embrace adulthood. She had said that she would leave the home in two years and make her own way.
The Family Report Writer noted the father’s argument to him that, in the context of the mother’s effective proposal that the child Y spend one weekend per month with him, that her opportunity to enjoy being with the father would be diluted. The Family Report Writer noted the father’s argument that such weekend would be compromised by the child’s air travel to Sydney and travel to and from the airport.
The Family Report Writer stated that if the Court finds that the mother’s ability to parent her children would be impeded by anxiety arising from isolation, that it may be better for the child Y to live in Queensland with the mother. The Family Report Writer stated that Y had a substantial relationship with the father, being a relationship that would endure if she were to see less of him.
The Family Report Writer stated that when interviewed, the mother indicated that her emotional health and well-being would be promoted by moving to Queensland.
The Family Report Writer noted that the mother did not argue that her mental health or her parenting ability would be substantially affected by remaining in Sydney, and she has the support of a loving and involved partner.
The Family Report Writer stated that the mother had stated that she would not leave Sydney unless the subject children accompanied her to Queensland, and, it is clear from the Family Report Writer’s assessment that the children should remain in her care; the children have a close connection to the mother and the present parenting arrangements have been successful.
Under the heading “Recommendation”, the Family Report Writer recommended that the child Y spend time with the father on alternate weekends from after school on Friday to before school on Monday, and at other times as agreed, until January 2018.
The Family Report Writer recommended that in January 2018 the child Y might live with the mother in Queensland and spend one weekend per month and half the school holidays with the father, and that the mother be ordered to facilitate Skype and other means of communication between Y and the father. Given the child X’s age and maturity, it was recommended that no orders be made in relation to her.
Cross-examination of the Family Report Writer
The Family Report Writer was cross-examined by the mother’s counsel and by the father.
The Family Report Writer confirmed that he had perused all the affidavits relied upon by the parties.
The Family Report Writer acknowledged that he had noted the evidence of the mother being presently pregnant and due to give birth in (omitted) 2016. He was further aware from the evidence that the mother’s new husband Mr A resided now in Queensland, together with the two eldest children of the mother and Mr A.
The Family Report Writer stated that the evidence indicated that the present inability of the mother to join her partner in Queensland was contributing to her anxiety and was understandable.
The Family Report Writer stated that one of the factors that had led him to state, in paragraph 47 of his report, that a move by the mother to Queensland “at this point is not critical” was the support of the mother’s new partner. He agreed, having regard to the fact that the mother and her new partner were now living apart, that it was possible that the mother’s needs were now more critical.
The Family Report Writer’s attention was drawn to paragraph 45 of his report, and his recommendation that the child Y might live with the mother in Queensland in January 2018. He was asked whether, if the child Y’s living with the mother in Queensland was brought forward, that that would affect the ability of Y’s relationship with the father to endure. The Family Report Writer stated that any interruption to the child’s relationship with the father, which was substantial, and the time they spent together, needed to be managed and planned. He was of the view that the child had the personal resources to adjust, and would adjust in time, with a move with the mother to Queensland a little sooner.
The Family Report Writer stated that it remained his view that the children should remain in the mother’s care.
Regarding the child X, the Family Report Writer stated that there were no parenting orders that he would recommend. He stated that this child was mature and could make her own decisions.
The Family Report Writer stated that it was his view that an equal shared care arrangement in relation to the child Y would not work; by reason of his own observations and having read the recent Affidavits, the parties remain in substantial conflict and had an inability to communicate with each other. He stated that placing the child Y within that context of conflict and inability to communicate was contraindicated.
The Family Report Writer stated that a clinical psychologist such as Mr S was able to make a diagnosis of adjustment disorder.
The Family Report Writer stated that the parties’ relationship was characterised by a failure to communicate and this would not change if the mother moved to Queensland.
The court accepts the evidence of the Family Report Writer, subject to two matters. The court refers to the Family Report Writer’s brief evidence, referred to immediately above; the court is of the view, based on the evidence before it, that it is likely that the mother, following a move to Queensland with the children, will find prospective communications with the father to be easier to endure emotionally (and in this context the court refers to its best interests discussions below).
As to the Family Report Writer’s view that no parenting orders should be made regarding X, by reference to the court’s discussion below as to the best interests of the children, following the legislative pathway under the Family Law Act, the court is of the view that, as to time to be spent with the father, that child should spend time with the father in accordance with her wishes, and she (as with Y) should live with the mother.
Legal Approach - Parenting
As to relevant legal principles to be applied in these proceedings the court respectfully refers to Lapthorn J in Cannon & Heath [2016] FCCA 2346 at paragraphs 17-23 (internal references omitted):
[17] “Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining the outcome of parenting matters the Court must consider the best interests of the children as the paramount consideration. Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held:
[144] ......a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[18] The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities. Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a. Children have a right to know and be cared for by both their parents;
b. Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c. Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d. Parents should agree about the future parenting of their children; and
e. Children have a right to enjoy their culture.
[19] The legislative framework which must be followed in all parenting cases, mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.
[20] For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years. When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other. A major long-term issue in relation to a child means an issue:
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
a. the child’s education (both current and future); and
b. the child’s religious and cultural upbringing; and
c. the child’s health; and
d. the child’s name; and
e. changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
[21] In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s 65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable. If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.
[22] This legislative approach must be followed in all parenting cases. This particular case has as one of its elements the issue of relocation . Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework. In Taylor v Barker their Honours Bryant CJ and Finn J said:
[53] ...... when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation , as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and KB v TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[23] Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.”
The Best Interests of the Children
The Primary Considerations: s. 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents
The children enjoy a meaningful relationship with both parents and would benefit by the continuance of those relationships.
The mother has been the children’s primary carer during their lives, whilst the Court notes the father’s significant involvement in the children’s lives during this period.
The father is presently (and has for a significant period of time) spending substantial and significant time with the children in Sydney, pursuant to past orders of the court. The implementation of these parenting orders, which practically has involved the parties communicating with each other, and occasionally involving them in being in each other’s physical presence, has contributed to the mother suffering adverse emotional disturbance, and the court refers to the evidence of the mother, her partner, the maternal grandmother, Mr S and the Family Report Writer in this context.
The continuance of this parenting arrangement in Sydney, particularly in the present circumstances of the mother where her partner and elder two children of that relationship reside in Queensland, her strained financial circumstances living in Sydney, and her extended family living in Queensland for which she seeks support, would carry the significant risk of increased emotional disturbance in the mother with adverse consequences to her parenting capacity and a detrimental impact upon the children’s meaningful relationship with her, and indirectly the father.
The mother is isolated in Sydney in circumstances where her emotional health is detrimentally affected by having to communicate with the father, to the extent that she is required to do so in Sydney, and she lacks support, in particular, from her partner and the maternal grandmother who live in Queensland.
The Court notes that the evidence of the mother’s treating clinical psychologist, Mr S, and the evidence of the Family Report Writer is consistent with this view.
Should the mother be permitted to relocate to Queensland, it is likely that her emotional health and wellbeing will be promoted with positive flow on effects to her parenting capacity and resulting in the children’s meaningful relationship with her, and indirectly the father, being maintained and enhanced.
In this context, the Court accepts that should the mother be permitted to relocate the children’s residences to Queensland, there will likely be financial benefits to herself and her family in terms of a reduction in cost of living expenses, she will be reunited with her partner and the children A and B, she will have the emotional support and practical assistance from the maternal grandmother in particular (noting also the presence of the mother’s extended family in Queensland), and her state of anxiety will be significantly alleviated, inter alia, through a reduction in the need to communicate with the father in relation to his spending time with the children and being in or near his physical presence.
The Court is of the view that the children’s meaningful relationship with the father can be maintained, should the mother be permitted to relocate the children’s residences to Queensland, if the Court makes parenting orders essentially (the court refers to its later discussion as to some proposed discrete amendments to the mother’s proposed orders) in accordance with the mother’s parenting proposals. The Court refers to the supportive evidence of the Family Report Writer that the child Y’s relationship with the father is substantial and that their relationship would endure if she were to see less of the father. The Court accepts the evidence of the mother that she would take steps to ensure that any readjustment of the child Y to spending less physical time with the father, on a move to Queensland, would be dealt with appropriately, including counselling if necessary. The Court is satisfied, should the mother be permitted to relocate Y’s residence to Queensland, that the father is likely to take every reasonable step to ensure that he is able to maximise his time spent with Y, whilst noting his employment and own family obligations in Sydney.
The father’s proposals, inter alia, that the mother not be permitted to relocate to Queensland with the children, and that the child Y spend time with the parents in a week about arrangement in Sydney, would carry the significant risk that the parties would be embroiled in increased conflict resulting in the children’s meaningful relationship with the parents being detrimentally affected. The Family Report Writer’s evidence is consistent with this view.
As to the father’s proposals relating to X, the court is of the view, in light of X’s age and maturity, and noting she will be entering her final high school year in 2017, that a prescriptive parenting order that she spend defined time with the father may well lead to disagreement and detrimentally affect her meaningful relationship with the father. Should she spend time with the father in accordance with her wishes, it is likely that her meaningful relationship with the father will be maintained.
The Court regards this meaningful relationship primary consideration as particularly important in these proceedings.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There was no submission from either party that the children might be exposed to abuse or family violence in the care of either parent. The Court is of the view that the mother, should she be permitted to relocate the children’s residences to Queensland, will be able to adequately discharge her parenting duties with her partner and extended family support available in Queensland.
Best Interests of the Child: The Additional Considerations: s. 60CC(3)
The Court has had regard to each of the additional considerations set out in section 60CC (3) of the Act. The relevant considerations are as follows:
3) (a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
The Court notes relevant case authority in relation to the views of children: R v R (2000) 25 Fam LR 712.
The court notes the maturity and age of the child X.
The Court accepts the mother’s evidence as to the wishes of the children, as previously referred to by the Court. It notes their views expressed to the Family Report Writer in November 2015 and gives significant weight to them.
3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion under the “meaningful relationship” primary consideration above.
The children enjoy close relationships with the father’s family, including extended family in Sydney. They enjoy similar relationships with the mother’s family, including extended family in Queensland.
(3) c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents have taken such opportunities, whilst noting that the father, through his employment obligations, has occasionally been unable to spend time with the children as prearranged.
3) ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
During the relationship both parents fulfilled their obligations in this respect to the best of their abilities.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: i) either of his or her parents; or ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion under the “meaningful relationship” primary considerations above. The Court is also of the view that the child Y’s relationships with members of the father’s family, including with the father’s children to Ms S, would likely endure despite physically spending less time with them on a move to Queensland. The Court is of the view that the child Y would likely cope emotionally with such physical absence, and that the mother, if not both parents, would assist Y in this context.
(3) e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father lives in (omitted) in Sydney. The mother proposes to live in the Brisbane metropolitan area in Queensland with the children. There are obvious practical difficulties in the children spending the same amount of physical time with the father as they presently enjoy living in Sydney.
The Court refers to its discussion above under the “meaningful relationship” primary consideration, and the reference to the mother’s proposed parenting orders. The Court notes the mother has established a $20,000 reserve fund to be utilised for certain air flights between Sydney and Brisbane.
The Court is satisfied that the mother will facilitate the implementation of any orders the Court makes that the children spend time and communicate with the father, should the mother be permitted to relocate the children’s residences to Queensland.
(3)(f) The capacity of: each of the child’s parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
Both parents appear to have such capacities.
3) (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The Court refers to its discussion above under the “meaningful relationship” primary consideration. The Court notes the observations of the Family Report Writer, inter alia, that the children presented as well adjusted children. The court notes the age and maturity of X.
3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not relevant.
3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties have demonstrated appropriate attitudes to the children and to their responsibilities of parenthood.
3)(j) Any family violence involving the child or a member of the child’s family
The Court accepts the mother’s evidence as to the past instances of family violence directed by the father against her. In the view of the Court, the father lacks insight as to the significance of this past family violence in relation to its detrimental emotional affect upon the mother and her consequential difficulties in communicating with him post separation.
3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter
Not applicable.
3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the view of the Court, the mother’s proposed parenting orders would be least likely to lead to the institution of such proceedings as opposed to the father’s proposed orders. Inter alia, should the mother not be permitted to relocate the children’s residences to Queensland, there is a significant risk that her emotional health and wellbeing will be detrimentally affected with consequential negative effects upon the children. Similarly, the continuation of the current parenting arrangements or an equal time arrangement would carry such risks.
3) (m) Any other fact or circumstance that the court thinks is relevant
The Court has considered the father’s concerns in relation to the mother moving to Queensland with the children, in particular those concerns referred to in his Affidavit at paragraphs 179 to 213.
In this context, the Court refers to the evaluations of the Family Report Writer, including his evaluation that the child Y’s meaningful relationship with the father will likely endure any move by her to Queensland, and the Court refers to its discussion above of the “primary considerations” and other additional considerations under section 60CC of the Act.
On the evidence before the Court, the Court is of the view that the children’s education will not be detrimentally affected by their presently moving to Queensland, involving them, inter alia, in attending Queensland schools.
Should the mother and the children move to Queensland, the father should still be able to assist the child Y with her school tasks through Skype and Facetime communication mediums, if not other mediums such as email communications. The father will be able to communicate with and receive information from the children’s new schools in Queensland, and again be able to communicate with the children in relation thereto, through the above forms of non-face-to-face communication.
The Court has noted the father’s present financial position, and also notes his employment circumstances and the evidence before the Court in relation to his employment. In this context, the Court notes the $20,000 fund that the mother has set aside for certain air flights for the children in relation to spending time with the father, which will assist in maintaining the children’s meaningful relationship with him (and his family in Sydney).
Again, the Court accepts the mother’s evidence, inter alia, that she has reacted adversely from an emotional perspective to the father’s communications with her, in particular post separation to date. The father’s past family violence committed against her has contributed to how the mother reacts in this context. The Court accepts that the mother experiences negative emotional reactions to being in or near the physical presence of the father. The Court is of the view that the father lacks insight as to how his manner of communicating with the mother, including his particularly assertive manner of expressing his strong views to the mother, has detrimentally impacted upon her, and the Court refers to its earlier assessment of the father’s evidence in this context.
The Court notes the Affidavit evidence, including oral evidence, of the father’s witnesses, including his partner and brother; having regard to the critical nature of these witnesses’ evidence relating to the mother, in the view of the court it would likely be quite difficult for the mother to accept any prospective assistance that these witnesses might offer the mother in caring for the children in the context of the father’s proposed orders.
As discussed previously, should the Court permit the mother to relocate the children’s residences to Queensland, there is likely to be a consequential reduction in the extent to which the parents will need to communicate (for example, in relation to rearrangements for the time the children spend with the father), the mother will likely benefit from such a reduction by reason of a likely amelioration in her negative emotional reactions to communications with the father, and her future ability to communicate with the father will likely be made less difficult.
The Court does not accept the father’s evidence and contentions that historically the mother has consistently taken steps to remove the father from the children’s lives. In this context, it is not without relevance to note that the father, prior to the mother’s recent relocation application, did not seek to bring to finality any application that the children live with him.
The Court does not accept the father’s oral evidence to the effect that the mother favoured the child X over the child Y; this assertion did not appear in his Affidavit evidence.
The father should be able to liaise with school teachers, coaches, and tutors involved in the children’s education and extra-curricular activities in Queensland through modern communication mediums not involving face to face contact.
The court recognizes that there will be practical restrictions (eg geographical and financial) in the father and his family in Sydney participating in the children’s school and outside lives, should they be permitted to relocate to Queensland with the mother, to the extent that they do so now in Sydney. Nevertheless, the court is satisfied in all the circumstances, including the likely positive benefits ensuring to the mother by a move to Queensland with the children, and the father’s clear willingness and desire to remain a significant presence in the children’s lives, that the children’s meaningful relationship with the father shall continue.
The court is satisfied, on the evidence accepted by the court, that the mother will continue to facilitate the children’s meaningful relationship with the father should she be permitted to relocate to Queensland with the children. As to any concern of the father, not expressly referred to by the Court, the Court is not satisfied, on the evidence before the Court, that the children’s best interests will be adversely affected as suggested by the father.
Parental responsibility
Both parents seek an order for equal shared parental responsibility for the children.
As discussed previously, an equal time shared care arrangement in relation to the child Y, in circumstances where the mother was not permitted to relocate the children’s residences to Queensland, would likely be productive of significant conflict between the parties with consequential negative impacts upon the children; such an equal time order would not be in their best interests. Should the mother be permitted to relocate the children’s residences to Queensland, such an arrangement would not be reasonably practicable.
Further, as previously discussed, should the mother not be permitted to relocate the children’s residences to Queensland, any order (or indeed the continuance of the current parenting orders) that the children spend substantial and significant time with the father, would likely carry the significant risk of the mother’s emotional well-being being further adversely affected with consequential negative impacts upon the children and their relationships with the parents; such an order (or indeed the continuance of the current parenting orders) would not be in the children’s best interests. Should the mother be permitted to relocate to Queensland with the children, an order that the children spend substantial and significant time with the father would also not be reasonably practicable.
Summary of best interest considerations
Evaluating the best interest considerations under s60CC of the Act, as discussed above, the court is of the view that it will be in the best interests of the children to make parenting orders in accordance with the mother’s proposals referred to in her Amended Initiating Application filed 10 August 2016, with some discrete amendments referred to below.
As to amendments to the mother’s proposals, it will be in Y’s best interests to permit her to communicate with either parent also by way of Skype, email, text message, letters, Facetime or other similar modes of communication. As to Y’s time with the father in the Sydney metropolitan area during school term times (see the mother’s proposed order 4), it will be in her best interests for that child’s time with the father to commence from 7pm Friday and conclude at 6 pm on the following Sunday (or Monday as per proposed order 4); such time is broadly consistent with the father’s alternative proposal at paragraph 221 of his trial affidavit, taking into account likely flight check in times and flight durations. Further, as to the mother’s proposed order 8, relating to the father’s additional time with Y, the notice period required to be given by the father should be 7 days’ notice (see proposed order 8.1) which will also be in her best interests.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 20 January 2017
Key Legal Topics
Areas of Law
-
Family Law
0
4
2