Mattson and Mattson

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATTSON & MATTSON

[2013] FCCA 2004

Catchwords:
FAMILY LAW – Parenting – relocation – father seeks the permission of the Court to relocate the residence of the children back to south-east Queensland from (omitted), Queensland – mother seeking an order from the Court to allow the children to remain living with her in (omitted) – equal time – substantial and significant time.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA.

Browne v Dunn (1894) 6 R 67
Ember & Assadi [2013] FamCAFC 107
In the Marriage of LC & TC (1998) 23 Fam LR 75
In the Marriage of PW & AJ Hall (1979) 5 Fam LR 609
MRR v GR [2010] HCA 4

Applicant:

MR MATTSON

Respondent:

MS MATTSON

File Number:

BRC 9476 of 2012

Judgment of:

Judge Howard

Hearing dates:

5 & 6 August 2013

Date of Last Submission:

6 August 2013

Delivered at:

Brisbane

Delivered on:

5 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr Creamer

Solicitors for the Applicant:

Michael Lynch Family Lawyers

Counsel for the Respondent:

Mr Durley

Solicitors for the Respondent:

Frank Jongkind & Co Solicitors

ORDERS

That each party shall provide a copy of a proposed Final Order to each other party by 4:00pm on 11 December 2013.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 16 December 2013.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

IT IS NOTED that publication of this judgment under the pseudonym Mattson & Mattson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9476 of 2012

MR MATTSON

Applicant

And

MS MATTSON

Respondent

REASONS FOR JUDGMENT

Background

The Applicant father was born on (omitted) 1977. The Respondent mother was born on (omitted) 1983.
The parents met at a (religion omitted) Church camp at (omitted) in 1997. The parties commenced a relationship in (omitted) 1999. At that stage the mother was about to turn 16 years of age. The parties were married in (omitted), Queensland on (omitted) 2001.
There are three children of the marriage, namely, X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2007.
The parties separated on a final basis at the end of 2011. There had been an earlier period of separation from approximately September 2010 to February 2011.
The mother lives outside (omitted) with her new partner Mr D. They are care-takers of a property known “(omitted)”, (omitted), South-West Queensland. This is a 30 thousand acre (omitted) property. They are both also employed in (omitted).
The father lives with his parents in the (omitted) area of Brisbane.
The parties have been unable to agree in relation to parenting orders. The mother seeks the permission of the Court to allow the children to remain living with her in the (omitted) district. The father, on the other hand, seeks the permission of the Court to relocate the residence of the children from (omitted) back to South-East Queensland.

Section 60CA

Section 60CA of the Family Law Act 1975 states:-
“SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER
60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC sets out how it is that a Court is to determine what is in a child’s best interests. Section 60CC(2) states:-
“Primary considerations
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 from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
It is clear from the evidence in this case that there will be benefits to the children in having meaningful relationships with both the mother and the father.
As to any issues in relation to s.60CC(2)(b) concerning physical or psychological harm – I have noted some issues in paragraphs 48 and 63 herein.
Additional considerations for the Court to take into account when determining the best interests of children are set out in s.60CC(3).

Section 60CC(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.

X is now 11 years of age. I will include in here all of the relevant paragraphs from the report of Ms V (note her family report is exhibit 5 and is dated 21 April 2013). The paragraphs relating to X and X’s views are as follows:
“87. X is 10 years old. When I collected her from her father, he had just brushed her hair into a ponytail. She said that she and her sister had just been plaiting her granddad’s beard.
88. X presented as a much more confident child, appropriate to her age. She has clear recollections of Mum and Dad together. She says that they used to fight constantly and that, even though they got back together, she always thought that they were likely to separate again.
89. She said that she gets on well with the Mr D children. The seven of them share three bedrooms together. They can walk or ride to school.
90. She was definite in her expression of wishes. She wants to stay in (omitted) for the remainder of her primary school. She doesn't know what will happen when she gets to High School but she wants to be able to see as much of Mum as possible wherever she goes.
91. She went on to say that she wants to see as much of Dad as possible too, because she loves him and she misses him very much.
92. She said that the main thing for her is living with Mum. Dad was always working and so she didn't see as much of him. Sometimes he worked all night and slept during the day. So she wants to be with Mum because Mum is the one she has always been with.
93. She said that (omitted) has a (omitted) High School but it has a bad reputation. Mum works at (omitted) and they are going to open up a Distance Education Centre at the back of the shop. Otherwise Mum has said that they might move to a closer town e.g. (omitted) or (omitted).
94. It seems that the family have also discussed boarding school in (omitted). She would then spend half of the school holidays with Mum and half with Dad.
95. The Court might say that she has to live with Dad during High School and, if so, there are plenty of High Schools in Brisbane.”
Y is now nine years old. The parts of Ms V’s report relating to Y are as follows:-
“96. Y is 8 years old. Of the three children, I noticed that she spent as much time as possible with her Dad during informal waiting periods.
97. She states her feelings in the same way as her sisters. She wants to live with Mum wherever Mum lives. However she would much sooner live with Mum in Brisbane than with Mum in (omitted).”
I also note the mother’s evidence concerning Y where the mother has stated in her affidavit filed 8 July 2013, inter alia:-
“42. I also recall that on the first of November, 2012, Y’s teacher, Ms C, asked to speak to me. She stated that Y had opened up to her the day before and talked about things she was worried about. She said Y was expressing fear over being forced to move back to (omitted) and, “her dad trying to take her away from her mum”. Y had told her that her father’s prayers about them being sent to him were upsetting her. She also told the teacher that “grandad threatens us with a wooden spoon” and she was scared of grandad yelling and scared to go to stay there or have to live there. She said Y communicated her desire to stay with mummy and stay at this school.”
I accept the mother’s evidence as stated above.
Z is six years of age and on interview – Ms V has reported as follows concerning Z:-
“79. Z is 6 years old. Her manner was shy and quiet during interview.
80. She told me that she likes (omitted). She enjoys going motorbike riding. Otherwise she just likes playing at home.
81. She said that she doesn't get to see very much of Daddy but, ‘It’s OK.’
82. She said that she gets on good with Mr D. He does tricks with them. For example he plays tickle monster with them.
83. Of the Mr D children, she likes playing with A and B best. I note that they are closest in age to her.
84. She is in Grade 1 this year at the (omitted) School. She likes it there.
85. She said that she wants to live in (omitted). In explanation, she said that she wants to be where her Mum lives. She confirmed this a second time – she wants to live with Mum whether it be in Brisbane or (omitted).
86. She said that she misses Daddy. She gets to talk to him almost every night. He tells her stories on the phone – sometimes bible stories and sometimes grizzle guts stories.”
It is clear that the children prefer to live with the mother. I do note that Y and Z are still quite young. X is 11 years old and is reported as being a confident child. Having regard to the ages of the children – I consider it appropriate that more weight be given to X’s views than to the younger children.
It is convenient at this point in time to note some of the other comments by Ms V at page 19 of her report:-
“98. Indeed it is notable that the children wandered happily between waiting rooms and their parents. In fact sometimes the Mr D children would go with them to the father’s playroom.
99. It is to the parents’ credit that they have been largely able to quarantine the children from the emotions associated with this dispute.
100. The children are sensitive, gentle girls. While it is beyond question that they have been primarily attached to their mother, I have also formed the view that they would worry more about their mother's welfare than their father's welfare. They perceive him as a stronger person.
101. I interviewed the Mr D children who are all responsive children and appear well-adjusted. They seem happy to have Ms B and the girls living with them.
102. The remainder of their conversations does not advance this assessment.”

Section 60CC(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).

Clearly the children all have a close and loving relationship with both parents.
There is also a close and loving relationship between the children and the maternal grandparents and other members of the maternal family.
The children also have a close and loving relationship with the paternal grandparents – although I note some of Y’s reservations referred to in paragraph 15 herein.
The children get along well with Mr D and his children. The photographs which are in evidence (exhibits 2 and 3) certainly seem to indicate a group of happy children together – namely the Mattson children and the Mr D children.
In paragraph 111 of the report of Ms V she notes:-
“111. The father has always been the primary breadwinner and the mother the primary caregiver within the family. That said, these roles overlapped greatly. The mother worked in gainful employment. The father had a hands-on involvement with the children when he was at home.”
It is in fact incorrect to say that the roles “overlapped greatly”. The father was only a particularly hands on parent for a short period of time during the marriage. This was towards the end of the marriage. I accept the mother’s evidence in relation to this issue.
I note once again in particular at this stage paragraph 100 of the report of Ms V. She has stated:-
“100. The children are sensitive, gentle girls. While it is beyond question that they have been primarily attached to their mother, I have also formed the view that they would worry more about their mother's welfare than their father's welfare. They perceive him as a stronger person.”
It is therefore apparent that it is “beyond question” that the children are “primarily attached to their mother”.

Section 60CC(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.

The mother has taken every opportunity to be involved in the lives of the children as referred to in this subsection.
This is not quite the case with the father. I note the mother’s affidavit filed 8 July 2013 where it is stated, inter alia:-
“16. In August 2010, we temporarily separated. We agreed that the Children were to have contact with the Applicant on weekends, however this did not happen regularly as the Applicant was often away in Sydney and Melbourne for work.
….
30. In August 2012, I informed the Applicant of my plan to move West with the Children to live with Mr D and his children. The Applicant was very supportive of my plan to move to (omitted) at that time. He said he had been missing weekend contact with the Children due to work or social commitments and therefore, it would be more suitable for him to have contact with the Children only during the school holidays.”
I accept this evidence of the mother. The father has also refused to communicate with the children via Skype. His explanations in relation to that were rather unconvincing. At the very least his explanations were not child focused. The father considered that he would be too emotional to communicate with the children via Skype. This is in spite of the fact that it would clearly benefit the children.

Section 60CC(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.

In relation to the question of child support I note that the mother has stated that the payment of child support by the father has been “intermittent and not regularly”. The mother went on to say:-
“When he decides to put some in, then he puts some in.”
It seems that the child support is paid through the Child Support Agency – but it was set up as a private agreement. The mother said that the father tends to put $50 into “a children’s account every now and again but I’m not sure he has any – I don’t believe he has any sort of schedule that he does that on”.
I accept this evidence of the mother. The payment of child support by the father is less than impressive.
Having said that, when the parties were together, the father worked and was the breadwinner for the family.
Currently the mother works on a Tuesday, Wednesday and Thursday from 8:30am until 1:30pm at the (employer omitted). That is a (omitted). The mother (duties omitted). In addition, the mother also works part time at the (employer omitted) in (omitted). The mother earns $30 per hour (that is at the (employer omitted)). The mother works about 17 or 18 hours per week. Access to the (employer omitted) in (omitted).
The mother’s evidence is to the effect that between her employment in (omitted) and Mr D’s job as a (occupation omitted) with (employer omitted) – the family income per year is in the vicinity of $120,000. The mother confirmed that Mr D supports both her and the three children in (omitted) (and she also utilises her own income). And Mr D also supports his own four children who also live primarily in the household with the mother, Mr D and the children who are the subject of these proceedings.
There is no adequate explanation from the father as to why the child support payments by him are intermittent and small.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

either of his or her parents; or

any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a 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.

It is convenient to consider these two subsections together. If the children remain living in (omitted) then clearly there will be ongoing travelling issues and costs and expenses associated with the children spending time with the father. The children have been living in (omitted) since late 2012. Ms V saw the children in April 2013. At that stage Ms V certainly did not highlight any particular problems being experienced by the children as a result of the separation from their father. That is not to say that the children do not miss their father. They do. If the parents lived within a close proximity to each other the children would be spending significant time with each parent.
(omitted) is approximately 900 kilometres from Brisbane. There is no doubt if the children remain living with the mother in (omitted) that it will significantly impact upon the frequency with which the children can spend time with the father.

Section 60CC(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.

Each parent has the capacity to provide for the emotional and intellectual needs of the children. Having said that – I will make some references later in these reasons for judgment to the question of the use by the father of what the mother terms, “emotional blackmail”.

Section 60CC(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.

There are no particular findings urged upon the Court in relation to this subsection.
Section 60CC(3)(h) and s.60CC(6) are not relevant in this case.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

The mother has an appropriate attitude to the children and to the responsibilities of parenthood which have been demonstrated by her actions. Generally speaking so does the father. I have some reservations in relation to some of the matters communicated by the father to the children and I will elaborate further in s.60CC(3)(m). I am also very concerned at the lack of child support paid by the father.
As to s.60CC(3)(j) and (k) – these paragraphs are not relevant.

Section 60CC(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.

There is no particular order that would be less likely to lead to the institution of further proceedings in relation to these children.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

The report of Ms V dated 21 April 2013

I note various paragraphs under the heading of family history in Ms V’s report as follows:-
“13. The parents met in 1999 at a (omitted) when Ms B was in Grade 11. They both came from strong religious affiliations, Mr Mattson being a (religion omitted) and Ms B’s family conducting a (omitted).
14. They married in 2001. Mr Mattson said that he and his family were circumspect about the decision since Ms B was still very young but, he says, she was forthright in her insistence and her mother maintained that she was very mature and knew her own mind.
15. He reflects upon a loving and fulfilling marriage. Like all relationships, they had their share of trials. He said that Ms B suffered, in particular, from low self-esteem.
16. Ms B became bulimic in about 2007. She was somewhat embarrassed in talking about this aspect of her life and I did not press her greatly for detail.
17. She said that she suffered problems with controlling her weight, particularly after the birth of her third child. She then discovered that Mr Mattson was looking at pornography and she states that she was entirely crushed by this. She felt that she was not good enough for him. She believes that this was when she withdrew emotionally from the relationship. ”
Part of Paragraph 13 of the report is incorrect. Ms B’s family were not conducting a (omitted).

Further, it seems that the parents were initially both members of the (religion omitted) Church. The father, under the influence of his own parents – subsequently became a (religion omitted). The mother, during the marriage, was content to practice this religion with the father. Since the separation the mother no longer practices that religion.
In relation to the mother’s bulimia nervosa – I note paragraph 16 of Ms V’s report. Ms V has stated that the mother was embarrassed in talking about that aspect of her life – and Ms V “did not press her greatly for detail”. This is unfortunate. Given that Ms V has concluded that it was beyond question that the primary attachment figure for the children is their mother – it would have been much more beneficial if Ms V had appropriately explored the question of the mother’s bulimia nervosa. I note what the mother had to say about this illness in her own affidavit filed 8 July 2013. The mother stated:-
“13. I was unhappy in my marriage to the Applicant. In 2008, I suffered from bulimia nervosa. It was caused by my body image issues. During the relationship, things said by the applicant led me to conclude that I was not “good enough” to the Applicant. I suffered bulimia nervosa when I tried to lose weight so that I could be more attractive to the Applicant. I underwent counselling for this which I continued until after my separation from the applicant. During this period, I went to gym 2 to 3 nights per week in order to lose more weight. The Applicant cared for the Children when I went to the gym. The Children were not affected by my bulimia.
14. I no longer suffer from bulimia. After the separation, I continued to attend counselling for my bulimia. I am now able to control my bulimia effectively with techniques that I learned in counselling. In addition, the cause of my bulimia no longer exists. I am now in a happy relationship with Mr D (Mr D) who appreciates me. I now have a positive body image.”
The mother was not cross-examined in relation to the content of these paragraphs. I accept the mother’s evidence.
In the light of the observations by Ms V in paragraph 100 of her report – it is unhelpful that Ms V failed to investigate further the possible implications for the mother and for the children of the impact of an order requiring the children to return to South-East Queensland – in circumstances where the mother concluded that she was not able to also return to South-East Queensland. In the light of the mother’s history of bulimia nervosa – this would have been a benefit to the Court.
During the mother’s evidence from the witness box she made reference to the (religion omitted) religion. I asked the mother some questions from page 76. The mother’s evidence is as follows:-
“HIS HONOUR: Right. In relation to religion, you were when you were together with Mr Mattson involved in the (religion omitted) religion?
MS MATTSON (the mother): Yes, I did explore that with him yes, your Honour.
HIS HONOUR: Okay. But since separation have you continued?
MS MATTSON (the mother): No, not – no, your Honour, I haven’t. There are some things that, I guess, I since don’t feel 100 per cent comfortable with.
HIS HONOUR: Like what?
MS MATTSON (the mother): Just little bits and pieces. Just little bits and perhaps, you know, it’s my understanding of, but I little things like old testament law to me can be a little bit harsh when it comes to things like women and teenage girls when they have their periods or just things like that that I don’t necessarily see, to me they don’t fit with what a loving god is about.
HIS HONOUR: Well, in relation to that, are you saying – are you saying, it’s your understanding or is it in fact the case that there are particular beliefs ‑ ‑ ‑?
MS MATTSON (the mother): No, there are.
HIS HONOUR: Concerning the menstrual cycle?
MS MATTSON (the mother): Yes, there are particular beliefs, yes.
HIS HONOUR: And were you required to follow them when you were married?
MS MATTSON (the mother): Yes.
HIS HONOUR: What did you have to do?
MS MATTSON (the mother): I probably, well sorry, I’m going to blush a bit, your Honour, but ‑ ‑ ‑
HIS HONOUR: Go ahead, we hear everything in this court.
MS MATTSON (the mother): Particularly you’re supposed to keep yourself separate when you have your menstrual period. For a period of eight days your husband is not supposed to touch you. Things like that.
HIS HONOUR: Right. And is that, as you understand it, that will form part of the teaching for the children too?
MS MATTSON (the mother): Yes.
HIS HONOUR: And will you instruct them in that way, or will the father?
MS MATTSON (the mother): No, the father I think. You know, I am more than happy to leave him to instruct the girls with the things that he believes are important and I guess I would just like to reserve the right, your Honour, to instruct the girls in, you know, what I think and why I think it and they can make their own mind up as they grow.
HIS HONOUR: Okay. So, are these issues you and the father have discussed yet? Because these girls, one of them is 11?
MS MATTSON (the mother): Yes. I have. I did actually and my 11 year old daughter, her cousin’s actually just gotten her period so she’s very ‑ ‑ ‑
HIS HONOUR: Aware?
MS MATTSON (the mother): She’s thinking about these things.
HIS HONOUR: Where does the cousin live?
MS MATTSON (the mother): On the coast but they keep in close contact.
HIS HONOUR: Yes.
MS MATTSON (the mother): But she does, she is very aware of these things and she did ‑ ‑ ‑
HIS HONOUR: Is the cousin, is this the cousin on your side of the family?
MS MATTSON (the mother): Yes.
HIS HONOUR: Does she live separately from other people when she has her period?
MS MATTSON (the mother): No.
HIS HONOUR: She doesn’t follow the (religion omitted) tradition?
MS MATTSON (the mother): No, she doesn’t.
HIS HONOUR: Your family are not in it?
MS MATTSON (the mother): No.
HIS HONOUR: So, just go back?
MS MATTSON (the mother): Yes.
HIS HONOUR: So, have you had, have you sort of mapped out a plan between yourself and the father as to how you’re going to approach this?
MS MATTSON (the mother): I did try to speak to the father, your Honour, and say that the girls have particularly, you know, asked that they can stay with mum particularly through the times that they’re going through getting their periods.
HIS HONOUR: And you raised this with the father?
MS MATTSON (the mother): I did.
HIS HONOUR: And what did he say?
MS MATTSON (the mother): He told me that mothers weren’t necessary and that they had, they would have their grandmother and their aunty around if they needed it.
HIS HONOUR: Was anything arranged, was anything like this raised with the family report writer?
MS MATTSON (the mother): No, your Honour.
HIS HONOUR: All right. Okay. Well maybe I don’t. I’ll hear from counsel when we get to submissions as to whether you think there’s anything that I need to do about that, in terms of orders. Now, Mr Creamer, I’ve covered the mother’s income, Mr D’s income, child support to some extent, some aspects in relation to religion, if you have any questions whatsoever, go ahead.
MR CREAMER: Just a couple of questions, your Honour.
HIS HONOUR: Listen carefully to Mr Creamer and I will call upon Mr Durley after that.”
I accept this evidence from the mother.
The mother gave further evidence in relation to this issue from page 79 of the transcript:-
“HIS HONOUR: When you say that you spoke to Mr Mattson about the girls commencing their menstrual cycles and you say that he said, “mothers aren’t necessary”?
MS MATTSON (the mother): It was in a text message that he actually ‑ ‑ ‑
HIS HONOUR: How long ago?
MS MATTSON (the mother): I think, I can’t say whether it was late last year or early this year.
HIS HONOUR: So around then was it?
MS MATTSON (the mother): Yes. It was, you know, Mr Mattson and I, I’ve tried to keep the lines of communication open since I’ve left and we’re obviously not very good at communicating with each other still but ‑ ‑ ‑
HIS HONOUR: On that particular issue, if I were to make an order that the two of you had to mediate some joint proposal, some joint path to follow so that there’s consistency, would you be willing to be involved in that? You have to map out a path. Sorry, that’s not quite true is it. I mean you, have - you basically said to the court now you want to, you’re going to follow a particular path and you know he’s going to follow another path, is that what you’re saying?
MS MATTSON (the mother): Yes, I don’t want to be preventing him from teaching ‑ ‑ ‑
HIS HONOUR: Putting forward his views?
MS MATTSON (the mother): And that’s fine, you know, I guess I just respectfully ask that I’m also able to teach the girls what I think as well without any problems and that’s fine, you know.”
I accept this evidence of the mother.
Mr Creamer, counsel on behalf of the father, then proceeded to ask the mother some further questions in relation to this issue and the mother’s evidence continues from page 80:-
“MR CREAMER: In terms of the bible, you just sort of referred to a bible verse, an old testament verse, sorry. And you said that it requires the husband and wife to not touch each other for eight days?
MS MATTSON (the mother): Basically, not sort of ‑ ‑ ‑
MR CREAMER: It essentially says there’s no sex?
MS MATTSON: Yes.
MR CREAMER: It doesn’t mean that there’s no, you can’t touch each other physically and ‑ ‑ ‑?
MS MATTSON (the mother): Well, no. That tends to be how people follow it nowadays but if you followed it to the letter, old testament, then no you shouldn’t even be sitting on the same seat or touching anything or laying anywhere near it in a bed that anyone else.
MR CREAMER: So, the way that people actually interpret and practice those things today is different to how it would have been practised if you were taking it literally and very strictly is what you’re saying?
MS MATTSON (the mother): Yes.
MR CREAMER: So, the actual verse itself physically not touching each other, people today interpret that to mean no sexual conduct as opposed to that very high level of no conduct at all?
MS MATTSON (the mother): That would depend on individuals. I’m not sure. I think (religion omitted), you know, might be different. It depends on how each individual interprets that.
MR CREAMER: Yes, that’s correct. It’s up to every individual’s interpretation isn’t it and so ‑ ‑ ‑?
MS MATTSON (the mother): Well, it’s not really. It’s not up to individual interpretation, you know, the law if the law in old testament terms and I know that, you know, that law is what it is but I know that people obviously stretch things and make it fit however they like. I mean, for example, so that we’re not supposed to buy or sell however ‑ ‑ ‑
HIS HONOUR:   Not supposed to buy or sell?
MS MATTSON (the mother): Buy or sell on the Sabbath. However, if Mr Mattson wanted to take us out to dinner, he would just take us out to dinner or if we had forgotten to stock up on something, your Honour, he would just go and do it.
HIS HONOUR: And does the Sabbath that is recognised, is it Sunday or Saturday?
MS MATTSON (the mother): Saturday.
HIS HONOUR: Saturday.
MR CREAMER:   So, there’s some flexibility in terms of what the old testament says and the way people conduct themselves?
MS MATTSON (the mother): I would say it would depend who you spoke to. Possibly if you spoke to Mr Mattson’s father, he would certainly be very strict in following that ..... if you spoke to some of the other people, they may not. They may, you know, do it differently.
MR CREAMER: Exactly, everybody’s interpretation and the way‑ ‑ ‑?
MS MATTSON (the mother): However, you know, the essence of it would be that you would be doing the wrong thing if you were to break that.
MR CREAMER: That’s fine.
HIS HONOUR:   Now, just pause there for a moment because there’s something I’ve noticed in paragraph 133, you might have another question, Mr Creamer. What exactly, in paragraph 133 of your affidavit you say, Ms Mattson,
The applicant’s religion believes that a female is unclean and should be isolated when she is having a period.
HIS HONOUR: What exactly does that mean for a young girl, isolated from who?
MS MATTSON (the mother): She potentially shouldn’t be sitting on the same chair that other people should be sitting on.
HIS HONOUR: But what about in terms of meal time for instance?
MS MATTSON (the mother): I would, to be honest, with you I’d have to go back and read, read the ‑ ‑ ‑
HIS HONOUR: So, you’re not sure exactly what it would entail from a physical perspective these days in terms of isolation?
MS MATTSON (the mother): I don’t necessarily remember, your Honour. I don’t necessarily remember. It’s been quite a while since I have, yes.
HIS HONOUR: All right. Okay. Anything else further to that?
MR CREAMER:   No, your Honour.
HIS HONOUR:   All right. Mr Durley, anything arising out of those queries?
MR DURLEY:   No, your Honour, there’s nothing that would assist you any further.”
The mother made reference to this issue of the father’s religious beliefs and the question of the girls’ menstrual cycles in her trial affidavit filed 8 July 2013 (paragraph 133). But the mother had earlier made a similar reference in her earlier affidavit filed 29 January 2013.
Despite the fact that this issue had been raised by the mother in her affidavit filed 29 January 2013 – it was not raised by the family report writer in her report. Indeed the family report writer did not question the parents in relation to this issue.
It would have been beneficial to the Court if Ms V had provided a considered opinion in relation to this issue. Ms V essentially conceded as much during her oral testimony.
There is no evidence from the father in relation to this issue. There is no evidence from the father’s family in relation to this issue.
I refer once again to the evidence of the mother at paragraph 133 of her affidavit filed 8 July 2013. If the children are living primarily with the mother – I do not think that there would be any doubt that she would have more of an opportunity to “guide the children during their puberty”. There is evidence from the mother, which I accept, to the effect that the paternal grandfather “would certainly be very strict in following” what the Old Testament says. I note that it is the father’s case that – should the mother not choose to return from (omitted) that the children ought to live with him and the paternal grandparents at the paternal grandparents’ residence (or nearby to the paternal grandparents). In those circumstances it would have been beneficial if there had been evidence from the father and the paternal grandparents in relation to the issue of menstrual cycles. It also would have been beneficial if there had been evidence from the father and the paternal grandparents in relation to any other religious views which might impact upon the three children.
I note the decision of the Full Court of the Family Court of Australia In the Marriage of LC & TC (1998) 23 Fam LR 75. In that decision the Full Court made it clear that – if a party is on notice as to the other side’s evidence – the rule in Browne v Dunn (1894) 6 R 67 does not apply. That is to say – the father in this case was clearly on notice in relation to this issue of the menstrual cycles. He adduced no evidence in relation to the issue. He was on notice because of the evidence contained in the mother’s affidavit filed on 29 January 2013 and once again in her affidavit filed 8 July 2013. In those circumstances, on the authority of LC & TC (supra) – it was not necessary that counsel for the mother put each and every such issue to the father in cross examination.
I accept the mother’s evidence in relation to these issues.
The mother gave evidence in paragraphs 54 and 55 of her affidavit filed 8 July 2013. In those paragraphs the mother stated:-
“54. The paternal grandfather denigrates me to the children. After the last school holiday visit, the three girls told me that Grandad Mattson has told them that, “Mum has thrown God out, so God is throwing Mum out”. This type of communication with children about one of their parents is not healthy.
55. The girls informed me that while they were on their last visit, the Applicant and his father had a huge fight about religion and it scared them. They also said that their grandad had thrown all of their cousins’ Easter eggs that were given to them by their father into the garden in a temper. The cousins’ holiday with the grandparents was cut short. The Applicant used to joke with me that it wasn’t a “Mattson” household if someone wasn’t yelling. I have seen the Applicant’s father treat his wife harshly and belittle her in front of company. I do not want my children living in this environment. The parents’ home and yard is also a cluttered pigsty full of caravans, tents of religious followers, old tyres by the 100’s dumped over a failed business idea, and an unfenced overgrown green swimming pool off the back deck ”
I accept the mother’s evidence.
The mother also stated in paragraph 56 of her affidavit filed 8 July 2013:-
“56. The Applicant uses emotional blackmail on the children. “If you don’t want to live with Daddy I know you don’t love me.” The Applicant has also emotionally abused the Children on several occasions:
(a) In April 2012, when X told the Applicant that she could not see him on a weekend because she already had a camping trip booked, the Applicant became upset and said: “That’s fine X, if you don’t love daddy and don’t want to see daddy, I don’t care” or words to that effect. X then said that she loved him but did not want to miss camping. X was very upset and in tears. I had to cuddle and soothe X until she calmed down.
(b) In July 2012 during a changeover at the (omitted), the Applicant threatened the Children that he would withdraw his financial support to the Children if they would not live with him. When the Children said that they wish to live with me, the Applicant became upset and said: “Fine, if you don’t love daddy, then I won’t be helping with anything” or words to that effect. The Applicant then accused me of being a “fear mongerer” (sic) and that I was turning the Children against him in front of the Children. I could see that this upset the Children as they were teary.
(c) On 20 January 2013, X was in tears when I picked her up after contact with the Applicant. I asked her why she was crying. She said: “I am crying because Dad said that if he can’t make us move back then he doesn’t want to see us ever again” or words to that effect. Y also asked me: “Mum, was that the last time we will ever see daddy?” or words to that effect. I told them that their daddy loved them and that they would see their daddy again in the next school holidays. I also told them that I would be taking long weekend in Brisbane so that they could spend time with the Applicant.”
I accept the mother’s evidence as it is contained in paragraphs 56(a), (b) and (c). To the extent that there is any evidence from the father which contradicts this evidence of the mother – I accept the evidence of the mother. I had the chance to observe both of the parents giving evidence in the witness box and I prefer the evidence of the mother.
I note once again the mother’s evidence at paragraphs 30 and 31 of her affidavit filed on 8 July 2013. The mother stated in those paragraphs:-
“30. In August 2012, I informed the Applicant of my plan to move West with the Children to live with Mr D and his children. The Applicant was very supportive of my plan to move to (omitted) at that time. He said he had been missing weekend contact with the Children due to work or social commitments and therefore, it would be more suitable for him to have contact with the Children only during the school holidays.
31. The Applicant changed his mind in September 2012 and proposed that the Children shared equal time with the parents. At that time, I had already accepted an offer of employment in (omitted) and begun the process of relocating.”
I accept this evidence on behalf of the mother. In particular I accept the mother’s evidence that the father was originally supportive of her plan to move to (omitted). To the extent that there is any evidence from the father which contradicts the mother’s account – I accept the evidence of the mother. As noted – I preferred the mother as a witness.

It is apparent from the evidence of both parties that a mediation would not have resolved the outstanding issues. Evidence discloses that the mother had decided to move to (omitted). The evidence also discloses that, in the lead up to the mediation (which did not take place) the father had conclusively – changed his original position as I have just noted – and decided in his own mind that he would not agree to the mother relocating the residence of the children to (omitted).
I made references earlier herein (in relation to s.60CC(3)(ca)) to the question of financial support. I note the evidence of the mother at page 131 of her affidavit that the father told the Child Support Agency that his income ranged from $12,000 to $28,000. The father does not have his own residence. He lives at his parents’ house. The mother’s income – especially when combined with the significant income of Mr D – is more than sufficient to support the mother and the three children – as well as Mr D and his children.
The mother had a brief relationship with a Mr K. The mother accepts that this was a mistake. Having realised that she had made a mistake with that relationship – the mother in fact should be given credit for extracting herself from that relationship.
I had the opportunity to observe both the mother and Mr D give evidence. I have formed the opinion that Mr D is very supportive of the mother. I also note that Mr D provides significant financial support to the mother and the three children who are the subject of these proceedings.
The father has really not adduced any evidence sufficient to convince the Court that he is in a position to financially support the children if they were to return to South-East Queensland.
As noted, the mother has settled in very well to life in the (omitted) district. The mother’s evidence is that – even if the children are ordered to return to South-East Queensland – that she would not return. I accept this evidence of the mother. It is apparent that the mother married the father at a very young age. Having made the decision to leave the marriage – the mother was in somewhat of a state of turmoil (and hence the relationship with Mr K). But the mother has, since commencing her relationship with Mr D and moving to (omitted) with the children – obviously found contentment and support.
The mother is the primary carer for the children. The mother has always been the primary carer for the children. The mother is the primary attachment figure for the children. In my view, it would not be in the best interests of these children if they were forced to return to South-East Queensland without their mother.
I note that Mr D stated (under cross-examination) that if the mother had to return to South-East Queensland then he would also come to South-East Queensland. But frankly I saw this as evidence of Mr D’s love and support for the mother. There is no evidence that Mr D would be able to obtain employment in South-East Queensland. There is no evidence that even if he could obtain employment that he would be able to obtain the sort of job which would pay him the large salary that he is able to achieve in South-West Queensland. Furthermore, there is no evidence that the mother would secure employment in South-East Queensland.
I find as a fact that the mother will continue to support the children’s relationship with their father even if the children are living with the mother in (omitted). The mother will facilitate the children’s relationship with the father. There is a good deal of evidence to support this. For example – I note that even when the father was failing to act in a child focused manner (as referred to in paragraph 63 herein) – the mother continued to support the children’s relationship with the father. Further, even though the mother does not agree with the father’s religious beliefs – she certainly does not denigrate those beliefs to the children. Furthermore, the mother accepts that the father is entitled to put his opinions, views and beliefs to the children in relation to religious issues. The mother does, however, reserve the right to put forward her own views on such matters – so far as it relates to the wellbeing of the children.
I note that Ms V prepared a family report and that report is exhibit 5 in the proceedings.
In relation to Ms V’s report I note:-
a)that Ms V failed to investigate the possible impact upon the three young girls of the father’s beliefs (and the paternal family’s beliefs) that women are unclean during menstruation. Further, by failing to explore this issue Ms V failed to illicit from the mother the fact that when the mother raised this issue with the father he replied that “mothers aren’t necessary”. Clearly these are matters which should have been investigated by the family report writer. The Court would then have had the benefit of Ms V’s opinion as to which parent would be best placed to primarily guide the three girls through puberty. Further, it will be noted that I have accepted the mother’s evidence that she will remain in (omitted) irrespective of the outcome. If the children had to return without the mother they would be living with the father and the paternal grandparents (or near the paternal grandparents). There was no examination by Ms V of the possible impact on the children of any of the father’s or the paternal family’s religious beliefs. I have also found that the mother is denigrated by the paternal grandfather in the presence of the children. Indeed I should point out that there was some conflict in the father’s evidence as to where the children would be living if they were returned from Western Queensland to South-East Queensland without the mother. Even if the father’s plan was that the children would live with him in some other residence (for instance a rental property owned by the paternal grandparents) it is still apparent to the Court that the children would be seeing a good deal of the parental family. This is of concern to the Court because of the finding made concerning denigration of the mother in the presence of the children by the paternal grandfather. It is also of concern to the Court because of the lack of evidence from the father (and the paternal family) about religious beliefs or practices which may impact on the children.
b)I note paragraph 105 of Ms V’s report where she says “the reasons for the mother’s unhappiness are not available to us”. This is not correct. The mother pinpoints the cause of the unhappiness in the marriage being the father’s references to her weight and the father’s use of pornography;
c)Ms V concluded that in paragraph 111 of her report that the parents’ roles “have overlapped greatly”. I have earlier made a finding that this is not correct;
d)I note that the children want to remain living primarily with the mother (X of course is the oldest and I have made comments in relation to the weight to be given to her wishes); and
e)I note from paragraph 125 of Ms V’s report – it is clear that Ms V considers that the mother should be the parent with whom the children live primarily; and
I note that Ms V has recommended that the children return to South-East Queensland. It must be said that the ultimate decision in relation to the permission for the children to remain in (omitted) or return to South-East Queensland is, of course, a matter for the Court. It is not a matter for the family report writer. I note what the Full Court of the Family Court of Australia had to say In the Marriage of PW & AJ Hall (1979) 5 Fam LR 609 at page 615:-
“There is no magic in a family report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities; in the Marriage of Wood (1976) 2 Fam LR 11, 182; in the Marriage of Harris (1977) 29 FLR 285.”
I have come to the conclusion that the children are now well settled in (omitted). The mother and her new partner are well settled in (omitted). There is proper financial support for the mother and the children in (omitted) – through the efforts of the mother herself and also her new partner Mr D. I have also come to the conclusion that the mother will continue to support the children’s relationship with the father and I note the opinion of Ms V that this relationship will be maintained even if the children remain in (omitted) (note paragraph 119 of her report).
Further, I am concerned that some of the father’s comments to the children have not been child focused. This has been an ongoing issue. I refer to the findings I have made in paragraph 63 herein. Furthermore – if the children were returned from (omitted) (by order of the Court) without the mother – the children would be living in the paternal grandfather’s residence or they would (at the very least) have significant interaction with the paternal grandfather and the paternal family. As noted, this is of concern to the Court because of the finding that I have made to the effect that the paternal grandfather has denigrated the mother in the presence of the children. This is one of the primary reasons why I have rejected the recommendation of Ms V. Ms V’s recommendation was that – even if the mother herself decided not to return from (omitted) – that the children should nonetheless be returned to South-East Queensland and live with the father. The father’s lack of a child focused approach (on occasions as noted) and the paternal grandfather’s denigration of the mother in the presence of the children – are two of the reasons why I have rejected Ms V’s recommendation on this particular issue.
I accept the mother’s evidence that she will not leave (omitted) – even if the Court had been persuaded that the children should return to South-East Queensland. In those circumstances it is clearly in the best interests of these children that they remain living with the mother in (omitted).
I note that the mother’s extended family live on the (omitted). But I also note that the maternal grandparents have travelled to (omitted) more than once to spend time with the mother and the children.
There is no evidence of the availability of accommodation or employment or ongoing financial support for either the mother or Mr D if the mother and the children were somehow “forced” to return to South-East Queensland.
I have come to the conclusion that it is in the best interests of these children to be able to remain living with the mother in (omitted) or in the (omitted) district and spend holiday time plus other weekends during the school term with the father.

Section 61DA

There will be an order for equal shared parental responsibility.

Section 65DAA

In those circumstances the Court must consider s.65DAA of the Act. That section states in subsections (1) and (2):-
“65DAA(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
65DAA(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(a) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
The comments of the High Court in MRR v GR [2010] HCA 4 have to be given close consideration. I note the following paragraphs from the judgment of the High Court:-
“13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
14. His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour "did not expressly address the issue of whether an equal time arrangement would be 'reasonably practicable'"[13]. However, the Court observed, his Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child's best interests[14]. But those matters could be relevant only to the question posed by par (a) of s 65DAA(1), not the question in par (b), which required consideration of other, different matters.
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
16. Had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order. From the time that she returned to Mount Isa to the date of the hearing the mother had been required to live in a caravan park, and live there with the child on alternate weeks. Apart from the facilities being limited, it could not be said that such an environment is usually ideal for a child. The availability of alternative accommodation did not seem likely. Rental accommodation is scarce in Mount Isa and the waiting lists for it long. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in "rough" areas.
17. The mother had limited opportunities for employment in Mount Isa. When the parties lived in Sydney she had worked part-time. She had full-time opportunities available to her with her previous employer in Sydney which provided her with flexibility of hours. In Mount Isa the mother supported herself from social services payments and income from casual employment. The disparity between her income and that of the father had not been addressed by the time of the hearing. She said there was no employment in Mount Isa for someone of her experience and there were limited opportunities for flexible hours.
18. The evidence of the Family Consultant was that the mother was "definitely despondent" about being in Mount Isa as her living conditions were not good and she was isolated from her family. The Family Consultant said that the mother was depressed and recommended that she attend counselling. The finding of Coker FM that "the mother's anguish and depression in being in Mount Isa ... can, to a significant degree if not in their entirety, be dealt with by ... counselling"[15] is not supported by this evidence.
19. The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.”
Accordingly, before there could be an order for equal time or substantial and significant time – then there would need to be a conclusion by the Court that it was both in the best interests of the children and reasonably practicable. The High Court mentioned in paragraph 15 quoted above that what is required is a “practical assessment of whether equal time parenting is feasible”.
This leads me back to the findings that I have already made in these reasons for judgment. There is no evidence of suitable accommodation for the mother and the children if they were all required to return to South-East Queensland. If the children returned alone to South-East Queensland they would be living in the household of the paternal family – or living nearby to the paternal family. There is no evidence to confirm that there are employment opportunities for the mother or her partner in South-East Queensland. Indeed there is uncontested evidence from the mother that Mr D works for (employer omitted) as a (occupation omitted). The equivalent company in South-East Queensland (on the (omitted) areas) is (omitted). The mother gave evidence that (omitted) are not even currently “putting on their own apprentices”. This evidence is uncontested. On the other hand both the mother and her new partner have stable and (in the case of Mr D) highly remunerative employment in South-West Queensland. I note that the father is earning somewhere between $12,000 and $28,000 per year and pays very little by way of child support (if anything).
A practical assessment of whether equal time parenting would be feasible therefore leads me to the conclusion that it is not feasible. It could only occur if both parents were living in South-East Queensland. As can be seen – I have come to the conclusion that this is not reasonably practicable for the mother – even if she was minded (or ordered) to return to South-East Queensland. Ms V recommended that if the parents lived close together in South-East Queensland they should commence an equal time arrangement. I am not convinced that this would (in any event) have been in the best interests of the children. It will be noted from (inter alia) paragraph 92 of these reasons for judgment that I have concluded that the report writer, Ms V, has failed to take into account various facts. That failure by Ms V puts in question (in my view) her opinion that equal time would have been in the best interests of these children. Having said that, it probably would have been in the best interests of the children (if the parents lived close enough together) for there to be an order for substantial and significant time.

To the extent that any order for substantial and significant time required the mother to live in South-East Queensland – the same considerations relating to the question of reasonable practicability apply. So, whilst it may be concluded that it would be in the best interests of the children for there to be an order that they spend time with the father on a substantial and significant basis – this could only occur if both parents were living in South-East Queensland and (as noted) I have come to the conclusion that it is not reasonably practicable for the mother to live in South-East Queensland. Accordingly there will not be an order for substantial and significant time.
I note the decision of the Full Court of the Family Court of Australia in Ember & Assadi [2013] FamCAFC 107. I note some of the comments by the Full Court in that decision including:-
“30. Of course, here there was no suggestion of equal time, and the issue was substantial and significant time.
31. We first observe that the issue is not strictly whether the relocation is reasonably practicable, but whether equal time or substantial or significant time is reasonably practicable. However, plainly the argument of the mother here is centred around the factors that must be considered by the Court in considering whether it is reasonably practicable to put in place the proposed order as set out in s 65DAA(5).
32. The issue highlighted by the mother here was that there was insufficient evidence to allow the Federal Magistrate to make findings as to where the children, and necessarily the mother as well, could live, and what financial support would be available to ensure that that could happen.”
The question of financial support also loomed large in the current matter before the Court – as did the question of appropriate accommodation for the mother and the children if the mother had been minded (or ordered) to return to South-East Queensland. In that respect the decision of the Full Court in Ember & Assadi (supra) has some similarities with the present case before the Court. Whilst I do not have the benefit of the expert evidence from that case I do note that in the present case before the Court – that Ms V did conclude that the children’s relationship with their father will be maintained even if the children remained living in (omitted). I do note Ms V’s further comment that the children’s relationship with the father will be hampered substantially in those circumstances. It may not be an optimum situation – but that is not the test.
The Court was referred by counsel for the father to a decision of the Full Court in Wilson & Wilson [2013] FamCAFC 43. In that particular case the Trial Judge allowed a mother to relocate the residence of a child – notwithstanding the fact that a family report writer had recommended against such a relocation. The Full Court allowed the appeal and I note what the Full Court had to say at paragraph 66:-
“66. In the absence of other expert opinion, or a demonstration that the expert had mistaken some facts, failed to take into account relevant facts revealed at trial or was not qualified, it should have been very difficult for the Federal Magistrate not to accept her opinion about the effect of relocation on the child’s relationship with his father and other matters.”
In the case that is currently before the Court it is apparent to me that there are certain facts which the family report writer has failed to take into account or has failed to adequately take into account. The family report writer did not take into account the evidence of the mother that the father and the paternal family consider a woman to be unclean during menstruation. There was no examination of this issue by the family report writer – even though the Court is required to consider the best interests of three young girls. Furthermore, the Court has found that the paternal grandfather has denigrated the mother in the presence of the children. This is a finding that has been made in these reasons for judgment. To that extent it is not a fact that is or could have properly been accepted or fully taken into account by the family report writer. Further, I have found that the father is not always child focused and has, on more than one occasion, made very inappropriate comments to the children (note paragraph 63 herein). That is not a finding which Ms V could have taken into account. I also rely on all of the other findings and reasons referred to in this judgment in reaching the conclusion that the recommendation of Ms V should be rejected.

The school in (omitted)

The mother has settled in well into the (omitted) district. The school reports show that the children have also settled in well at their school in (omitted). I note the school reports are included as exhibit 4. The father has not produced any evidence to justify moving the children from their existing school in (omitted). There would have needed to be evidence from the father that it was in the best interests of the children for the children to be removed from their school in (omitted). The father appeared to have a religious objection to the fact that the children were attending a (religion omitted) primary school in (omitted) – but, as I have noted, he was not able to point to any or any adequate evidence to convince the Court that it would not be in the best interests of the children to remain at their present school in (omitted). That is, the father did not adduce any or any adequate evidence or argument in relation to this issue – to persuade the Court that the schooling of the children in (omitted) should be disrupted by a move to another school in (omitted). I accept the mother’s evidence that the father did highlight a religious issue of difference between his beliefs and the religious teaching at the current school in (omitted). In particular I accept the mother’s evidence that this afforded the father an opportunity to discuss religious issues with the girls. The mother was certainly not opposed to the father stating to the girls his religious beliefs.
As to the question of high schooling – there was not sufficient evidence before the Court for any concluded view to be reached by the Court.
The parties should attempt to agree on the wording of final orders to reflect the reasons for judgment. If they are unable to agree the matter will be relisted for Mention.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 5 December 2013

[2013] FCCA 2004

5 December 2013

Key Legal Topics

Areas of Law

Family Law