Mauldon and Mauldon
[2008] FMCAfam 122
•27 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAULDON & MAULDON | [2008] FMCAfam 122 |
| FAMILY LAW – Children aged 15, 13 and 10 – final arrangement for care of children – oldest child lives in Adelaide with father – middle child lives in Brisbane with mother – parties essentially agree this situation should continue – dispute concerns youngest child – mother seeks to relocate child’s residence from Adelaide to Brisbane – father seeks child should remain living in Adelaide – family report recommends mother and middle child should return to live in Adelaide as child is emotionally torn between her parents – mother unwilling to consider such an option – weight to be given to child’s view – consideration of consequence if change in child’s circumstances – best interests – presumption of equal shared parental responsibility – practical difficulties and expense involved in children maintaining parental relationships. |
| Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 61DA; 65D; 65DAA; 65DAC |
| U v U (2002) FLC 93-112 Goode & Goode (2006) FLC 92-286 AMS v AIF; AIF v AMS (1999) FLC92-852 A v A: Relocation Approach (2000) FLC 93-035 Bolitho & Cohen (2005) FLC 92-224 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MR MAULDON |
| Respondent: | MS MAULDON |
| File Number: | ADC 123 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 14 & 15 February 2008 |
| Date of Last Submission: | 15 February 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 27 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Cole |
| Solicitors for the Applicant: | R J Cole & Partners |
| Counsel for the Respondent: | Mr J Keen |
| Solicitors for the Respondent: | A P Hodgson & Associates |
ORDERS
The father and mother have equal shared parental responsibility for the children of the marriage, D born in 1993, B born in 1995 and C born in 1997 (hereinafter referred to as “the children”).
The children D and C live with the father in Adelaide.
The child B live with the mother in Brisbane.
The children spend time with each of their parents as follows:
(a)With the father:
(i)For a period of seven (7) consecutive days in the mid-year school holiday period of each year either before or after the mother’s time with the children pursuant to order 4(b)(i);
(ii)For the first half of the end of year school holiday in 2008 and each alternate year thereafter;
(iii)For the second half of the end of year school holiday in 2009 and each alternate year thereafter.
(b)With the mother:
(i)For a period of seven (7) consecutive days in the mid-year school holiday period of each year either before or after the father’s time with the children pursuant to order 4(a)(i);
(ii)For the second half of the end of year school holiday in 2008 and each alternate year thereafter;
(iii)For the first half of the end of year school holiday in 2009 and each alternate year thereafter.
The father and mother share the costs equally of the air travel for the children to undertake spending time with each of their parents as set out in order 4 hereof with the father or his agent to endeavour to obtain the cheapest available economy airfares available and advise the mother of these arrangements in writing, including details of flight arrival and departure times and flight numbers thirty-five (35) days prior to the date of the travel involved.
The mother is to provide her half share of the children’s travel costs to the father fourteen (14) days prior to the date scheduled for the children to spend time with the other parent.
In the event the father wishes to spend time with B during the end of term 1 school holiday in any year, he be able to spend time with the child for a period of seven (7) consecutive days in such holiday period in Adelaide provided that he gives the mother twenty-one (21) days notice of such intention and pays all the costs of the child travelling between Brisbane, Adelaide and return.
In the event the mother wishes to spend time with D and C in the end of term 3 school holiday in any year, she be able to spend time with the children in such holiday period in Brisbane for a period of seven (7) consecutive days provided that she gives the father twenty-one (21) days notice of such intention and pays all the costs of the children travelling between Adelaide, Brisbane and return.
The children be able to spend time with the other parent and each other at any other times and on any other conditions as the parties agree from time to time particularly if either of them is unable to take up the time available to him or her pursuant to orders (7) and (8) herein.
The parties each ensure that the children are able to have liberal telephone communication with the other at all reasonable times but the father make D and C available to receive a telephone call from the mother and B at 7:00pm South Australian time on Wednesday and Saturday of each week.
The mother authorise the principal of each school attended by B from time to time to send to the father:
(a)A photocopy of each school report concerning B;
(b)An order form for each school photograph of B.
The father authorise the principal of each school attended by D and C from time to time to send to the mother:
(a)A photocopy of each school report concerning D and C;
(b)An order form for each school photograph of D and C.
The parties provided to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within two (2) days of such change.
Neither party denigrate the other or permitted any other person to denigrate the other either in the presence or hearing of the children herein.
The father and mother each keep the other informed of any major illness or accident suffered by the children when in his or her care respectively and advise the other as soon as practicable of each treating doctor or like professional attended by the children.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Mauldon & Mauldon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 123 of 2007
| MR MAULDON |
Applicant
And
| MS MAULDON |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Mauldon and Ms Mauldon are the parents of D born in 1993, B born in 1995 and C born in 1997. These proceedings are concerned with final arrangements for the care of these three children.
Although it is unusual, I will refer to Mr Mauldon and Ms Mauldon as [Mr Mauldon] and [Ms Mauldon] respectively, as this is how they referred to each other in their evidence. I mean no disrespect to either of them by adopting this informality.
At present B is living in Brisbane with her mother, whilst D and C are living in Adelaide with their father. Mr Mauldon and Ms Mauldon agree that D should remain in Adelaide, primarily because this is his wish and, in the past, his relationship with Ms Mauldon has not been without its issues, although these seem to be resolving.
Mr Mauldon and Ms Mauldon also agree that B should continue to live with her mother in Brisbane. B is more troubled by the issue of her parent’s separation than D and seems to be missing her father a great deal at present.
However, both Mr Mauldon and Ms Mauldon think it would be too unsettling for B to move back to Adelaide to live with her father at this stage and, on balance, this would not be her wish. Accordingly, although it is not ideal, there is no dispute that B should live in Brisbane.
Accordingly, the disagreement between the parties is mainly centred on living arrangements for the youngest child, C. C is a vulnerable child, who has suffered from severe epilepsy and has some learning difficulties, which are most likely associated with his epilepsy.
Mr Mauldon believes C is well settled in his care in Adelaide, where he (C) has lived most of his life. Accordingly, Mr Mauldon believes that it would not be in C’s best interests to move from the routine and stability of his household. He also believes that he and his current partner, Ms D are better placed to manage C’s special needs than
Ms Mauldon.
Ms Mauldon has been involved in a long-term relationship with her partner, Ms P since 2005. Mr Mauldon believes that C needs a strong male role model in his life, which he is best placed to provide. In this regard, he has some concerns about Ms Mauldon’s household.
Mr Mauldon also asserts that C is particularly close to his older brother D.
On the other hand, Ms Mauldon believes that C’s interests will be best served if he comes to live with her and B in Brisbane. She believes that C is greatly missing the love and nurture, which she has given him in the past. She believes that she is more emotionally in tune with C than Mr Mauldon, whom she categorises as being a person who has difficulty in expressing his emotions.
As a result of these factors, [Ms Mauldon] believes that it is C’s deep seated wish to move into her predominant care and receive the love, which she can provide him best. Ms Mauldon also asserts that B and C are very close, more so than C and D, as D is now of an age when he will be separating himself from his family and doing his “own thing” with his mates of the same age.
Ms Mauldon has made it clear that she does not want to move back to Adelaide, which she left, in controversial circumstances, with B and C, in January 2007. In April 2007, Mr Mauldon travelled to Brisbane to collect B and C, ostensibly so that they could spend the Easter holiday with him and D in Adelaide. However, at the end of the planned holiday, he elected not to return the children to Brisbane.
B’s return to Adelaide did not go well. She was missing her mother and, from Mr Mauldon’s point of view, was not behaving well. Accordingly, in early May of 2007, the decision was made that she should return to live in Brisbane, where she continues to live.
In mid-June of 2007, court orders were made formalising the then existing arrangements for the care of the children. D and C remained in Adelaide, whilst B remained in Brisbane.
This situation expresses the dilemma for the parties themselves and indeed the court. Whatever is the outcome, it seems that C’s family will be fractured by distance. He will either be close to his brother and father or his mother and sister.
Accordingly, the case involves complex issues to do with relocation. On the one hand there is no principle of law that requires separated parents to live close together indefinitely. We live in a free and democratic society, which prizes the rights of its citizens to live where and how they choose, independent of outside interference.
On the other hand, children have the right to maintain relationships with those who are significant to them – particularly their parents and siblings. Ordinarily children do better if they have regular input and love from both their parents.
These principles are at times difficult, if not impossible to reconcile. So it is in this case. There is no way the various outcomes available, can be manipulated so, like the surface of a rubik’s cube, a perfect outcome can be achieved, which is satisfactory to all concerned.
Because of the level of complexity involved, the court ordered that an independent expert be appointed, who could interview each of the parties concerned and the children and report back as to the dynamic of the family. The expert in this case is Ms Michelle Quigley, a social worker, with extensive experience of working with families, in the context of relationship breakdown.
Ms Quigley agreed with me that the case was a difficult and complicated one. In an ideal world, she would want Ms Mauldon and B to return to live in Adelaide. This would relieve some of the unhappiness arising in B’s life from her parents’ marriage breakdown, particularly her separation from her father. Ms Quigley saw B as a child who was emotionally torn between her parents.
In such a scenario, Ms Quigley would recommend that C live with his mother and B, provided that he was able to spend regular and lengthy periods of time with his father. From Ms Quigley’s perspective, which was informed by what she thought would be the best possible outcome for the children, it would be best for both B and C, if they could spend regular and extensive periods of time with both their parents.
However as previously indicated, Ms Mauldon has made it clear, both to the court and to Ms Quigley, that this is not an option she would consider. Currently, Ms Mauldon sees her future in Brisbane. Accordingly, Ms Quigley turned in her report to what she considered would be the least bad outcome for C, given the likely geographic separation of his parents and family.
She conceded that C would most likely prefer to live with his mother but she considered him too young for his view alone to be the central determinative factor in the case. On balance, she considered C’s need for continuity and stability, both in his home and school environments, was more likely to be central to the service of his best interests, at this stage of his development.
Overall Ms Quigley considered Mr Mauldon was better placed to supply these needs than Ms Mauldon. Accordingly, she was opposed to there being any change in C’s living arrangements at the present time.
However, regardless of the ultimate outcome in this case, Ms Quigley considered that all of the children, but particularly C, because of his tender years, needed to see their parents and each other as often as possible. This issue raises fresh difficulties.
Neither party is in a strong financial position. Mr Mauldon earns around $46,000.00 per annum. Ms Mauldon clears around $660.00 per week. The cost of the three children concerned travelling between Adelaide and Brisbane is likely to be considerable and the parties will be financially stretched to cover the costs involved.
In their evidence, both parties have been very critical of the other in regards to how they have each discharged the responsibilities of being a parent in the past. This is most clearly defined in their respective criticisms of how Mr Mauldon and B came to be in Brisbane in January 2007 and the circumstances of their return to Adelaide in April of that year.
From Mr Mauldon’s point of view, Ms Mauldon did not properly advise him of her plans to move with the children to Queensland and, when she arrived there her care of the children was sub-standard – particularly in terms of the accommodation she provided for the children and her lack of attention to C’s medical needs arising from his epilepsy.
From Ms Mauldon’s point of view, she deposes that she advised
Mr Mauldon of her plans and he agreed to them, essentially conceding that the younger two children were better off in her care, as this had been the arrangement between the parties for some time.
It is her position that Mr Mauldon overstates the difficulties she experienced, when she arrived in Brisbane and the court should now criticise him for unilaterally removing the children, from her care, in April of 2007.
The parties agree that they have been separated for some years now – since August 2004. Prior to Ms Mauldon’s move to Brisbane, they had not seen the need to involve themselves in court proceedings and had been able to reach agreement about arrangements for the children’s care.
That is not to say that there is not considerable controversy between them in respect of the past arrangements for the care of the children. Mr Mauldon asserts that he has been the more involved parent, particularly in the period immediately after the parties’ separation. On the other hand, Ms Mauldon asserts that she has provided more of the care for B and C, particularly in the latter years of the parties’ separation.
Both parties have been critical of the other’s conduct in this post-separation period. Mr Mauldon characterises the mother as having been unstable and at times disinterested in the children. On the other hand, Ms Mauldon asserts that Mr Mauldon has had considerable issues to do with drinking in the past. Ms Quigley is critical of both parties for allowing the children to determine arrangements for their care, without proper direction from their parents.
These proceedings are directed towards resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where and with whom their child should live, it is the best interest of the child concerned which are paramount.[1]
[1] See Family Law Act at section 60CA
The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the children concerned. One important aspect of the children’s interests is how they may best have a meaningful relationship with each of their parents. Obviously neither party’s proposal is perfect in this regard.
However, at the end of the day, the court retains the ultimate authority to create the outcome which it considers will be in the best interests of D, B and C, irrespective of the positions advocated by each of the parties.
The Issues
Having provided this introduction, it is useful for me to set out the issues, which I must determine, before turning to the evidence and applicable legal principles in more detail. The relevant issues seem to be as follows:
·Who of the parties cared more for the children following their separation in 2004? At the end of the day does the determination of this issue matter in terms of the outcome of this case?
·What happened in January 2007 and April 2007, when C and B left and then returned to Adelaide? How does this reflect on the insight each of the parties has in respect of the responsibilities of being a parent? [Family Law Act section 60CC(3)(c) & (i)][2]
[2] Hereafter each reference in [ ] is a reference to the Family Law Act
·What weight is to be given to C’s views? Is he old enough for his view to be the most important and defining issue in the case? [section 60CC(3)(a)]
·Which of the parties’ home environments is likely to provide the most stability and routine for C? How important is this given C’s special needs, arising from his epilepsy and learning difficulties [section 60CC(3)(d) & (f)].
·Given his age, is C’s greatest need for love and nurture, or rather routine and continuity?
·Is C’s relationship with each of his parents qualitively different? [section 60CC(3)(b)(i)]
·Although it is an invidious question – is it likely to be more beneficial for C that he spends his childhood more with his sister B than his brother D or vice versa? [section 60CC(3)(b)(ii)]
·Given it was Ms Mauldon’s choice to move away from Adelaide, what consideration in the outcome of the case should be given to the fact that she and Ms P could return to live in Adelaide comparatively easily were it not for their desire to remain in Brisbane? [see U v U (2002) FLC 93-112]
·Does C require an immediate male role model in the household in which he is to live predominantly? [section 60CC(3)(g)]
·
Is there any relevance, for C’s best interests, arising out of
Ms Mauldon and Ms P’s relationship?
·Given the distance between Adelaide and Brisbane and the expense involved in travelling between the two locations, what is the best outcome to ensure that the children maintain their relationships with one another and each of their parents? [section 60CC(3)(e)]
·Should the parties have equal shared parental responsibility for the children? [section 61DA]
·Finally and most importantly, what is the best outcome for D, B and particularly C?
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children.
The service of D, B and C’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, including siblings [section 60B(2)(b)].
It is well recognised that relations between siblings are some of the most important of all human relationships, as frequently such relationships last longer than those between parents and children.
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[3]
[3] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
The application of the presumption of equal shared parental responsibility and the parenting arrangements which flow from it are rendered particularly problematic in cases involving one parent wishing to relocate permanently the children involved far away from the other parent concerned. Obviously, in such circumstances, an equal time, or a substantial and significant time arrangement, becomes highly impracticable, if not impossible.
In practice, regardless of the application of the presumption, the optimal parenting arrangements, envisaged by the legislation concerned, become redundant, unless restrictions are placed by the court on the freedom of movement of either one or both of the parents concerned. This, of itself, raises complex constitutional and legal issues.
Pursuant to rights read by the High Court into the Australian Constitution, Australian citizens, and those resident in this country, have a right to freedom of movement, both internally within Australia and indeed overseas.
This principle is often difficult to reconcile, in relocation cases such as this one, with the entitlement children have, pursuant to the Family Law Act, to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term.
In AMS v AIF; AIF v AMS[4] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[4] AMS v AIF; AIF v AMS (1999) FLC92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangement are in the child concerned’s best interests.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
In A v A: Relocation Approach,[5] the Full Court of the Family Court, following the decision of the High Court, stipulated that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child.
[5] A v A: Relocation Approach (2000) FLC 93-035
It held that the best interests of the child remained the paramount consideration but not the sole consideration. As such, the court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation. It is necessary for the court to evaluate each of the proposals advanced by the parties.
That evaluation must assess the advantages and disadvantages, for the child’s best interests, of each proposal and consider each relevant section 60CC factor. When evaluating the proposals, the court must have regard to the fact that neither party bears an onus (the court must have regard to the whole of the evidence relevant to the best interests of the child) and the importance of a party’s right to freedom of movement.
In particular, the court should be careful not to fall into the error of dissecting a relocation case into separate or discrete issues, namely who of the parties concerned should have primary responsibility for the care of the children concerned and secondly whether that parent should be “permitted” to relocate with the child.
The High Court again considered the question of relocation in U v U.[6] This was an international relocation case. In the case, the High Court again reiterated that a first instance court was obliged to give careful consideration to the proposed arrangements put forward by each party, but was not specifically bound by them.
[6] U v U (supra)
As the best interests of the child concerned remained the paramount consideration, it was incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than first considering restraining the parent who wished to relocate the children.[7]
[7] U v U per Hayne J at 89,103
This was so because proceedings concerning the welfare of a child were not exclusively adversarial proceedings. Accordingly, the court could examine outcomes, independent of the positions primarily put forward by the parties themselves. This was said to be a prelude to the “deeper inquiry” of what will best serve a child’s best interests.
Courts, such as this one, have also recently been cautioned about applying a too formulaic approach to relocation cases. Rather, it has been said that the proper approach is to weigh and assess each of the competing proposals of the parties, against the yardstick provided by section 60CC and consider all the other relevant factors, including the right of freedom of movement of the parent who wishes to relocate. However the court must always bear in mind that ultimately the decision it makes must be the one which is in the best interest of the child concerned.[8]
[8] See Bolitho & Cohen (2005) FLC 92-224 at 79,699
As a result of these considerations, I conclude that the main thrust of the enquiry in this case remains what outcome is likely to best serve the children, particularly C’s, best interests. I must determine who of the parties is better placed to provide a home for C, after having considered all of the applicable section 60CC factors.
If I conclude that the mother is better placed to provide a home for C, I am not entitled to dissect the case into a subsequent or contingent issue regarding whether the mother should be permitted to remain living in Brisbane with him.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible, with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved.
As the child’s best interests remain the paramount consideration in considering any relocation and as one of the components of a child’s best interests is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests.
In conclusion, the case requires no ready solution. Every relocation case is different and requires careful analysis. As is apparent from this survey of the law, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”[9], which arise from complex issues.
[9] See AMS v AIF (supra) per Kirby J at 86,041
However, the ultimate issue in the case is the best interests of the children concerned. In this regard, the parties competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed, against the yard stick provided by section 60CC and the principles which underpin it. However, such assessment must not occur in a vacuum, isolated from any considerations of
Ms Mauldon’s right to freedom to movement.
The evidence
The parties each gave evidence[10] and each was cross-examined by counsel for the other party. In addition, Ms D, the father’s partner also gave evidence.[11]
[10] The father relies on his affidavits of evidence filed on 22 October 2007 and 13 February 2008. The mother on her affidavits filed on 31 May 2007 and 28 September 2007.
[11] The father relied on Ms D’s affidavit filed on 14 February 2008.
Counsel for the father, Mr Cole was critical that Ms P did not provide an affidavit in the proceedings. In his submission, this was a significant omission from Ms Mauldon’s case, given that Ms P was likely to be closely involved in caring for C, if Ms Mauldon was successful in her application. Ms P did however take part in the family report.
I agree with Mr Cole that Ms P has and will remain a significant person in each of the children’s lives, particularly B and also C, if he goes to live in Brisbane. It is difficult for me to assess what sort of person she is, given that she has not given evidence. Ms Mauldon indicated that she did not want to involve Ms P in the case, if possible. I can understand why this would be so but I am troubled by her absence from the proceedings.
Ms D was an impressive witness. She seemed to me to be insightful regarding the needs of the children and down to earth and sensible in how those needs would be best provided. She seems to be a very good influence, so far as the father is concerned.
The only other witness, who gave evidence in these proceedings, was Ms Quigley. Ms Quigley is a social worker by profession. She was employed by the Family Court at Brisbane, as a family consultant, for a period of around two years. During this period, she compiled approximately seventy family reports.
In the past, she has worked with children in a therapeutic setting at the Queensland Child and Youth Mental Health Service. Currently, she is working as an in-house consultant at the Legal Aid Commission of Queensland. I accept that Ms Quigley has extensive experience of working with children, in the context of parental separation.
The circumstances of this case, presented particular logistical difficulties. At the time of writing her report, Ms Quigley was employed as a family consultant by the court in Brisbane. She interviewed Ms Mauldon, Ms P and B in Brisbane. A few days earlier, she had travelled to Adelaide, where she interviewed Mr Mauldon, C and D. Accordingly the report was done in what is called a split fashion.
Ms Quigley had a fundamental advantage over me in this case. She was able to see and hear C. However, she was not able to see C interacting with his mother. All family reports must be considered a “snap shot” in time, which is taken in somewhat artificial and stilted circumstances. The responses of children may be different on other occasions. Children may behave differently on different occasions, when different feelings are engaged. Their emotional responses cannot always be expected to be consistent. In this context, it is imponderable to know how and why C reacted, in the family report context, to not having been able to see his mother for a considerable period of time.
However, given her experience, Ms Quigley is likely to be the most reliable conduit of C’s views [section 60CD(2)]. I found Ms Quigley’s report to be thorough and well considered. I acknowledge that, due to difficulties with the necessity to reschedule the original final hearing, her report is now some months old. However, nonetheless, I accept her evidence and the recommendations it contains.
The proceedings before me were emotionally fraught and difficult for both Mr Mauldon and Ms Mauldon, neither of whom appeared comfortable in the environment of the court room. In spite of the significant conflicts in their evidence, I found them both to be honest witnesses, who did their best to tell the truth, as they each saw it, about previous care arrangements for the children.
Certainly, I do not doubt the love and devotion that both Mr Mauldon and Ms Mauldon have for D, B and C. I do not think that either of them has adopted the position, which he or she has done in these proceedings, for any other reason than that he or she thinks it will be the best outcome for C.
Ordinarily, a court such as this one, should refrain from making adverse comments about a parent, unless it is specifically necessary to do so. It does not help children if the relationships between their parents are inflamed by hurtful but gratuitous findings of fact.
It is becoming increasingly recognised that it is difficult for courts to make findings of fact about myriad issues, which have arisen over many years in a family, through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involve the person the parties to them hold most dear – their children – blur perceptions and recollections of past events.
In this case, both parties have had a significant level of involvement in caring for all three children in the past. The parties bring different backgrounds and attributes to the parenting of the children. As with everyone, they have strengths and failings in their parenting. In these circumstances, I think it would be naive for me to think in terms of one good parent and one bad parent.
At the end of the day, I suspect that both parties have much to offer each of the children. Their parenting styles are likely to be different but complementary with one another. Mr Mauldon is, by temperament, less emotionally demonstrative than Ms Mauldon. His parenting style is stricter and he places emphasis on routine and discipline.
On the other hand Ms Mauldon is a more emotionally available parent. As such, she is likely to be a more permissive parent. Both aspects of parenting are important and children need both types of parenting, just as they require exposure to both a father and a mother’s love.
This is one of the difficulties of the case, from both B and C’s perspective. To reach their full emotional potential, they need parental input from both Mr Mauldon and Ms Mauldon. Given the current circumstances of the case, C and B are likely to miss out in this regard.
a) Chronology
Ms Mauldon was born in 1973. Mr Mauldon was born in 1974. The parties met in early 1991, when both were very young and commenced a de-facto relationship a few months later. They married, after the births of each of the children, in 2001. The marriage between them was dissolved in May of 2007.
In the later years of the parties’ relationship, they lived with the children, at their former family home situated at Property S. Prior to that time, they lived in rented accommodation.
The parties’ relationship seems to have been a turbulent one and they separated on several occasions. I suspect that towards the end of their marriage, both parties were deeply unhappy.
Ms Mauldon complains about Mr Mauldon’s level of drinking at this time and what she believed was his disinterest in the children. On the other hand, Mr Mauldon complains that Ms Mauldon went out socialising, for long periods of time, leaving the children in his care. It is agreed between them that they finally separated in August of 2004.
Mr Mauldon was the family’s main financial provider. He acknowledges that Ms Mauldon provided the substantial component of the children’s care, prior to separation. Following the parties’ separation, in August 2004, Ms Mauldon left the S property. D, B and C remained behind in Mr Mauldon’s care.
During the marriage, Ms Mauldon worked on a casual basis at the [X] Hotel. After separation, she worked at a hotel in H. I suspect that she was under considerable financial pressure, as no doubt was
Mr Mauldon, who was struggling with mortgage payments. It was not an easy environment in which to make considered decisions about the care of the children.
Regrettably, the parties were forced to sell the S property, in October of 2005, for financial reasons. Its sale netted Mr Mauldon and
Ms Mauldon a modest sum of $9,000.00 each. However, Mr Mauldon was able to continue to live in the property, as he went on to rent it from its new owner.
There is considerable dispute, between the parties, as to who of them provided more of the care, for the children, in the period following separation. I suspect both have emphasised their level of involvement and minimised that of the other.
The situation at the time was both tense and fluid. There was talk of a reconciliation between the parties. I do not think that either party can be considered blameless, in regards to what happened after separation, or all together perfect in his or her care of the children and the other entirely negligent in this period. I suspect that they both did the best they could, in somewhat difficult circumstances.
The children lived mainly with Mr Mauldon following separation. He retained occupation of the Property S home. Ms Mauldon had problems with accommodation. She visited the children from time to time but she was also starting a new life for herself and no doubt reacting to the end of the parties’ marriage.
I do not think that it can be said that she abandoned the children, but she probably did not visit them as often as she says she did. But at the end of the day, it does not really matter. It is undoubtedly the case that each of the children has a significant relationship with both of his or her parents. However, it was probably around this time that a rift began to develop between D and his mother.
Despite the disruption to their care, it is important to note that during this turbulent period, each of the children continued to attend the same primary school, W Primary School at S. C continues to attend this school and has done so throughout, apart from one term in Brisbane at the start of 2007. D completed his primary school education, at this school and is now attending high school at S High.
Around the time the S property was sold, B and C went to live with
Ms Mauldon, who by this time was renting a property at K. D remained living with his father. This suggests to me that
Ms Mauldon’s care of the children was not as derelict as Mr Mauldon would now have me believe, as he was agreeable to this significant change.
It also seems to be the position, something that is acknowledged in Ms Quigley’s report, that the parties have always taken the approach that they would allow their children to decide with whom of their parents they wished to live. Again, neither Mr Mauldon nor Ms Mauldon saw any need to formalise arrangements for the children and the situation regarding them remained fluid.
Notwithstanding this change in living arrangements for B and C, it is Mr Mauldon’s position that he remains significantly involved in caring for all three children, particularly at weekends, when they had sporting activities which he organised. I accept that this was so. It also seems likely that the father’s care of the children was extended into the school week fairly regularly.
The father and D have a long relationship with the [X] Football Club. The father is a former player and D a current one. Much of the family’s social life revolved around the football club. In addition, B played netball at the weekend and Mr Mauldon supported her in this activity. Mr Mauldon points to these various activities in support of his claim that he remained closely involved in the children’s lives. He says the children frequently stayed over for training sessions. Their school was convenient to his home.
In October of 2005, Mr Mauldon began his relationship with Ms D, who moved in with him at the S property. Ms D has two children from an earlier relationship. These are T born in 1998 and J born in 2001. T and J also attend W Primary School.
Ms Mauldon began her relationship with Ms P in September of 2005. The father does not seem to be particularly comfortable with the relationship between Ms Mauldon and Ms P. They lived together at the property in K, with B and C at times.
Ms Mauldon has relatives, who live in Queensland. These are her brother and sister . In late 2005/early 2006, Ms Mauldon went on holiday to Queensland with B and C. She returned to Adelaide, with the children, a few weeks later. Ms Mauldon says B was impressed with Queensland.
Mr Mauldon asserts that the reality of the situation was that he cared for the children for the majority of time in 2006. Ms Mauldon asserts that the father’s time was confined to alternate weekends, with an occasional extension. I think the truth is likely to be somewhere in between, with the children dictating what they wanted. Both parties agree that D rarely saw his mother.
The implication of Mr Mauldon’s case is that Ms Mauldon’s life was unstable and she was unreliable during most of 2006. He asserts that Ms Mauldon and Ms P were evicted from the K property in September 2006, something which Ms Mauldon rigorously refutes. Rather, she says her lease had expired and, in any event, she was planning to move to Queensland, something Mr Mauldon was well aware of.
b) The events of early 2007
This is the most contentious evidentiary aspect of the case. From my perspective, the evidence is murky and contradictory. I am however satisfied that neither party acquitted themselves well at this time and both failed to communicate effectively with the other about essential arrangements for the care of their children. In this sense, both can be regarded as having acted unilaterally and without proper regard for the best interests of B and C.
In particular, I think it highly unlikely that Mr Mauldon gave
Ms Mauldon his clear and unequivocal consent to both B and C living permanently in Queensland from January of 2007 onwards. She may have raised the issue with him but no clear resolution of it and other matters arising from it had been reached between the parties. In particular, it is apparent to me that Ms Mauldon had not given any extensive thought as to how Mr Mauldon would maintain his relationship with both children, when they moved to Brisbane.
As I have already indicated, the personalities of Mr Mauldon and
Ms Mauldon are different. Ms Mauldon seems to have a more impetuous bent. Mr Mauldon is more cautious and measured.
Ms Mauldon had not secured employment for herself in Brisbane. Nor had she obtained accommodation for herself and the children there. Rather, she hoped things would turn out alright, once she arrived in Brisbane.
It is interesting to note that Mr Mauldon filed an application for divorce on 10 January 2007. At that time, he did not know where
Ms Mauldon was living, as he applied to dispense with service of his application on her. In addition, he was unable to provide any extensive details in his application regarding arrangements for the care of either B or C.
On 27 February 2007, his application was deferred until late April. These various factors suggests to me that the mother’s plan to relocate the children to Brisbane was neither particularly well handled, nor discussed with Mr Mauldon, who was left essentially in the dark about it.
It is Mr Mauldon’s evidence that he was unaware that he could apply to the court to either restrain Ms Mauldon from removing the children from South Australia, or once the children had left the State, to have them returned to Adelaide. I accept his evidence in this regard. He does not seem to me to be a sophisticated person, so far as his knowledge of the legal system is concerned.
However, to her credit, it seems clear that Ms Mauldon did advise
Mr Mauldon of where she and the children were living in the Brisbane area. This seems to have happened later rather than sooner.
Mr Mauldon says it was in late March or early April.
As a result, it seems that arrangements were able to be made for
Mr Mauldon to come to Brisbane to collect B and C for the April school holidays. It also seems to be the position that, during this period, Mr Mauldon was paying Ms Mauldon child support in respect of B and C.
Accordingly, it is an overstatement to say that Ms Mauldon abducted the children to Brisbane. However, her move cannot be regarded as a planned relocation but rather reflected her own interests and ambitions and those of Ms P. B may have been in favour of the move but that does not justify the mother’s conduct.
C has suffered epilepsy from an early age. He has suffered seizures in his sleep. He also suffers from asthma and has been prescribed both Ventolin and preventative medication. Following one of his early seizures, prior to the parties’ separation, Ms Mauldon consulted specialists at the [X] Medical Centre regarding C’s epilepsy. He was prescribed the anti convulsant medication Tegretol (Carbamazepine)[12].
[12] Tegretol is a brand name for the drug which is pharmaceutically known as Carbamazepine.
The prescription of Tegretol for C has been a matter of controversy between the parties and perhaps could be said to be emblematic of their different attitudes towards the responsibilities of parenting.
Ms Mauldon would prefer that C does not ingest what she sees as a powerful chemical. In her words, she “doesn’t like drugging kids up”. She is also somewhat wary of the medical profession and does not always accept what she is told by them.
It was her perception that C did not react well to Tegretol. She describes him as being drowsy, whilst being on the drug and sleeping up to fourteen hours per day, which she regarded as highly disturbing and not to be encouraged.
Understandably, Mr Mauldon has been highly concerned about C’s epilepsy, particularly its manifestation in disturbing and violent seizures. From his perspective, if a medical practitioner prescribes a drug for a child, a parent is duty bound to ensure that the child concerned takes the drug, as prescribed, until other credible and conventional medical advice is received.
Whilst in Brisbane, Ms Mauldon took the opportunity to wean C off Tegretol. In the past, she had been told by C’s doctor that it was appropriate for C to have brief respites from the drug. She decided to replace Tegretol with a brain activity oil, which is derived from fish oil. This supplement had been recommended to her by a naturopath, whom she had consulted at a pharmacy. As can be imagined, Mr Mauldon took a very dim view of this decision and regarded it as being highly irresponsible on Ms Mauldon’s part.
I have not been provided with any extensive medical evidence regarding the possible side effects of Tegretol and the potential benefits of the fish oil supplement. In addition, the only evidence I have regarding C’s condition is in a short medical report from his current paediatrician, which indicates that C was placed on Carbamazepine in early September 2007, following him having had “reasonably frequent seizures”. Since the prescription of Carbamazepine, his seizures have ceased according to the doctor concerned.
In the absence of specific evidence, it is not my function to comment on the appropriateness or otherwise of alternative therapies for children. Parents, just as with other individuals, are likely to have diverse views about such matters.
What I think the issue indicates is that Ms Mauldon did not see fit to discuss the complicated and controversial issue with Mr Mauldon. Rather, she acted unilaterally and did what she thought was best for C, independent of Mr Mauldon.
It is Mr Mauldon’s evidence that he had infrequent telephone communications with B, after she had left for Brisbane. B apparently had a mobile phone, but she did not always have sufficient credit to use it. C did not have a phone at all. He is critical of Ms Mauldon for not encouraging and supporting the children’s relationship with him. There seems some basis for this criticism.
It seems clear to me that Ms Mauldon was not particularly forthcoming about her plans, for the children, once in Brisbane, and did not give
Mr Mauldon any great information about them, particularly in respect of her accommodation plans. Certainly she had no long term plans as to how the children would maintain their relationship with their father, whether through face to face contact or on the telephone.
In such circumstances, it is perhaps inevitable that the children themselves would become the conduits for information to pass between Mr Mauldon and Ms Mauldon. As Ms Mauldon now somewhat ruefully observes, children are not always the most reliable of messengers in this regard, particularly in situations where there is a significant level of mistrust between the parents concerned.
From Mr Mauldon’s point of view, Ms Mauldon’s accommodation in Brisbane, for the children, was far from satisfactory. Ms Mauldon concedes that she and the children spent about a fortnight living in a tent in a caravan park. From her perspective this was a short term and temporary arrangement, arising from her friends, with whom she was staying in Brisbane, having visitors. Otherwise she and the children were living in satisfactory accommodation with these friends, in the Brisbane area, during February and March of 2007, whilst she looked for a house to rent.
It is her position, confirmed by documentary evidence,[13] that she signed a lease on her current accommodation in D on 26 April 2007. Accordingly, it is her position that Mr Mauldon overstates her accommodation difficulties for his own purposes.
[13] See Exhibit A
At any event, when Mr Mauldon arrived in Brisbane in April of 2007, he discovered that C and B had been living in a caravan park and that C’s prescribed epilepsy medication had been withdrawn. He was shocked and concerned.
Mr Mauldon also concedes that there were other factors at play in his ultimate decision to take B and C back to Adelaide and not return them to Brisbane, at the conclusion of the holiday. In his oral evidence,
Mr Mauldon forcefully stated that he did not believe that it was appropriate for “his children” to be sharing a house with “two woman living together”.
Mr Mauldon was not a particularly articulate witness but he was clear in his disapproval of the mother’s living arrangements with Ms P. This is the basis of my finding that he is not comfortable with the relationship Ms Mauldon shares with Ms P.
I think it likely that Mr Mauldon’s disapproval of the mother’s living arrangements and her relationship with Ms P were an instrumental factor in him deciding not to return C and B to Brisbane.
It also seems probable that he felt no compunction in acting unilaterally, given his perception that Ms Mauldon had earlier acted in the same way to him. In cross examination, Mr Mauldon conceded that he did not discuss with Ms Mauldon the fact that he had no intention of returning the children to her once the holiday had concluded. As such, he behaved just as high handedly and insensitively as Ms Mauldon did.
Mr Mauldon wasted no time in consulting a lawyer, when he and the children returned to Adelaide. No doubt he anticipated that
Ms Mauldon would not be content to acquiesce with the arrangement he had foisted on her.
He commenced the current proceedings on 17 April 2007 and, on his request, his application was given an initial return date of 1 May 2007. At this stage he sought that all three children should live with him in Adelaide.
Ms Mauldon responded to this application on 31 May 2007. She sought orders that B and C live with her in Queensland. By this time, Mr Mauldon had returned B to Ms Mauldon’s care in Brisbane. This occurred on or around the 3rd of May 2007.
Mr Mauldon deposed that B was disruptive, on her return to his household in Adelaide. He accuses Ms Mauldon of consciously trying to unsettle B by telephoning her each day during this period. However, he also concedes that B clearly stated to him that she wanted to return to live in Brisbane with her mother and, to his great credit, he ensured that this occurred expeditiously and without the intervention of the court.
On 13 June 2007, I was confronted with a difficult decision to make at the interim stage. At that time I did not have the benefit, as I do now, of an independent family report or of having been able to observe the parties at close hand giving their evidence. Ultimately, I decided that, until the final hearing, D and C should live in Adelaide and B should live in Brisbane. I also made orders for the children to be able to spend time with one another and each of their parents during school holidays.
It is to the considerable credit of both Mr Mauldon and Ms Mauldon that, notwithstanding their straitened financial circumstances, the children have been able to see one another and each of their parents during school holidays, both at the mid year and end of year stage.
It is also significant that D has spent some time with his mother in Brisbane, in the recently completed Christmas school holidays and the two have taken steps to mend the rift between them. It also seems to be the case that the children are able to speak, with each of their parents, by telephone, fairly regularly.
c) Ms D and Ms P
Both Ms D and Ms P have significance in these proceedings, given their relationships with Mr Mauldon and Ms Mauldon respectively. Depending on the outcome of these proceedings, one of them will be a parental figure for C and will be highly involved in his life.
Ms D was an impressive witness, who seemed to me to be highly insightful into the likely needs of a child of C’s age, both emotionally and educationally. She works thirty hours per week. She earns $630.00 net per week.
She and Mr Mauldon pool their wages but she is primarily responsible for the family’s finances and expenditure. She accepts that part of being involved with Mr Mauldon is that he (and so she) will have to incur significant expenses each year in regards to the children flying between Adelaide and Brisbane, whatever is the outcome of these proceedings.
Ms D organised the travel for the children during the most recent school holidays. She did it well in advance, making the bookings on the internet. Mr Mauldon’s half of the necessary fares involved, which was for the three children, was $632.00. Given her occupation, Ms D was happy to accept the proposition that she was good with money and well organised. I accept that this is so.
Ms D takes T and J and C to school each morning. Mr Mauldon usually collects the children in the afternoons, except for one week in every six, when he is working an afternoon shift.
Mr Mauldon and Ms D are currently living together in a property at M. This property is owned by Ms D. It is a five bedroom home. C and J share one bedroom. D has his own room, as does T, apart from times when B is visiting. Mr Mauldon and Ms D share another bedroom. The final bedroom is used as an office. I accept that the home provides suitable and comfortable accommodation for all concerned.
Ms D is in a difficult position, so far as C is concerned, given the tensions between Mr Mauldon and Ms Mauldon. She acknowledged that she had never really spoken with Ms Mauldon but would welcome the opportunity to have a more constructive relationship with her. She acknowledged that she was not and never could be C’s “mum”.
Ms D characterised C as a vulnerable child, who “really struggled with learning difficulties”. However, it was her impression that C was becoming more confident and was more willing to ask for help with his schooling.
Ms D believed that she and Mr Mauldon were able to offer C a stable home environment, which C needed at the present time, particularly as C was behind his age group in terms of literacy and numeracy skills. It was Ms D’s impression that C’s behaviour had improved since April of 2007.
It was Ms D’s evidence that D and C have a close relationship with one another, playing cricket and football after school, as well as engaging in other recreational activities. In this regard, she confirmed
Mr Mauldon’s evidence.
Importantly, Ms D was sensitive to the emotional pressures on both C and B. She described them as being “both extremely torn”. I accept that Ms D has an appropriate and loving relationship with both C and B. I do not think that it is likely that she would overstep her proper role in respect of either child. I also accept that she is open to having a more constructive relationship with Ms Mauldon. All in all, she is a positive influence in both Mr Mauldon’s life and the lives of each of the children concerned.
Ms P is a tradesperson by occupation, although she is not presently in the paid workforce, being in receipt of a New-Start Allowance. She is currently doing about twenty hours unpaid volunteer work each week, at an opportunity shop near B’s school. Ms P accompanies B to and from school each day on the bus. Ms Mauldon deposes that B and
Ms P have a close relationship with one another.
Ms Mauldon and Ms P have decided that Ms Mauldon will be the family’s primary financial provider and that Ms P will be home with B. In her evidence, Ms Mauldon deposed that “Ms P (Ms P) plays an important role in our family.” Clearly this is the case. I have no reason to think anything other than that Ms P gets on well with B and the two interact together in a wide variety of activities, including bike riding and walking the family dog. Ms P does most of the cooking in the household.
As previously indicated, I am concerned that I have not seen or heard from Ms P, which is in sharp contrast to Ms D. Ms Mauldon deposed that she did not want to involve Ms P in the case. Given Mr Mauldon’s antipathy towards her and circumstances of this case, I can understand why that would be so, but I remain concerned that I do not have a great deal of evidence regarding the nature of her relationship with C. This is an important consideration, when I consider the possible consequences for him of another change in arrangements for his care.
To Ms Quigley, Ms Mauldon explained that she and Ms P are careful not to be physically demonstrative towards one another in public so as to avoid causing embarrassment to any of the children. I accept this is so. Ms Quigley was concerned that the children might be unfairly stigmatised as a result of other people’s prejudices regarding same sex relationships.
Mr Mauldon is not able to clearly articulate his reasons why he is opposed to C being exposed to Ms P, other than in general terms he believes that C needs a male role model. I agree with Ms Quigley’s view that Mr Mauldon’s concerns reflect many common prejudices but that there is nothing to suggest that children, who live with a parent who is involved in a same sex relationship, are necessarily adversely affected by such a relationship.
My concern about the absence of Ms P from the case is not based on the fact that she is in a same sex relationship with Ms Mauldon. Rather, I am concerned that I have little evidence to assess the quality of the relationship between C and Ms P. However, it should also be noted that C himself raised no concerns about Ms P, in his interview with Ms Quigley.
It is also clearly the case that C and Ms P have shared the same household, for extended periods of time, in the past. In addition,
Mr Mauldon does not raise any specific allegations that Ms P has acted inappropriately towards C or there is any particular antipathy between the two.
d) Each party’s proposal
Mr Mauldon proposes that C should continue at W Primary School, where he is now in grade 5. He places particular emphasis on C’s attachment to this school, which he has been attending for most of his life. In time he proposes that C follow D to S High School.
D plays football for [X] Football Club. Mr Mauldon anticipates that C will also play for this club in the 2008 season. As previously indicated, football is an important social interest in Mr Mauldon’s household.
Mr Mauldon and Ms D both depose that they have been pleased with C’s progress at school during 2007. He was allocated a special needs teacher who was able to spend some individual time with him during the last school year. This will be continued and extended in 2008.
Ms D was also impressed with C’s class teacher for 2007. C’s end of year report for 2007 was positive. In the report it was said that “socially C has a significant set of friends with whom he relates strongly” and “C is more a part of whole class lessons”.
At present Mr Mauldon is paying child support in the sum of $135.00 per fortnight to Ms Mauldon for B. For reasons which are not altogether clear, Mr Mauldon has not sought a formal assessment of child support in respect of either D or C from Ms Mauldon.
Ms Mauldon concedes that she does not make any formal financial contributions to Mr Mauldon in respect of D or C.
As previously indicated, C has been replaced on Carbamazepine, in respect of his epilepsy. He is required to take six tablets per day.
Mr Mauldon and Ms D have deposed that they are rigorous in ensuring C’s compliance with this regime. Ms Mauldon deposed that she now accepts the necessity for this medication and that during the recent school holiday period, she ensured that C took his medication.
If C comes to live with her in Brisbane, Ms Mauldon proposes that he should return to L Primary School, which was the school he attended for the first term of 2007. At the present time, she is living in rented accommodation in D and has been in the same accommodation since late April of 2007. She has been employed as a sales assistant for approximately twelve months. Her work is around twenty minutes journey away from her home.
Although I am critical of Ms Mauldon for not having clearly defined employment and accommodation plans for her arrival in Brisbane, I accept that her accommodation and work are now well settled. I also accept Ms Mauldon’s evidence that it is her personal preference to remain living in Brisbane. However, apart from her preference, there are few practical impediments in the way of her possible return to Adelaide.
Ms P has elderly parents in Adelaide. She has close connections in the city. Ms Mauldon too has close associations in Adelaide, where she has lived for most of her life. However, at present, both Ms Mauldon and Ms P prefer Brisbane to Adelaide and now regard it as home.
The parties have different views as to the nature of the relationships C has respectively with D and B. Mr Mauldon sees C as particularly close to his older brother and deposed that the two engage in all sorts of activities, both after school and on weekends.
On the other hand, Ms Mauldon deposed that D picks on C from time to time and, in her experience, is more interested in spending time with his peers. She concedes that C and D “get on” but are not “extremely close”.
On the other hand, Ms Mauldon deposes that C is very close to B, whom she describes as being “motherly” towards C. It is to be anticipated that the parties would see C’s relations with his brother and sister, in this way, given the dichotomy in their respective positions. In such circumstances, it is difficult to assess which parties’ evidence is likely to be more reliable.
In the ordinary course of things, I would expect that D would be wanting to be more independent of his family and, in such circumstances, would want to separate himself from C and pursue his own interests, particularly as he is now fifteen and C is ten.
Similarly, I would expect that B, a teenager on the cusp of puberty would also have many interests which she would want to share with her girlfriends of the same age. On balance, it seems to me to be likely that C has a significant relationship with both D and B.
It is one of the highly regrettable aspects of this case that it seems inevitable that C must have a significantly different qualitative relationship with one or other of his siblings because of the geographic difficulties created by Ms Mauldon’s decision to relocate herself to Brisbane.
It is also Mr Mauldon’s case that, if C goes to live in Brisbane, he will suffer a reduction in his level of relationship with many of his relatives on the paternal side of his family. Mr Mauldon deposes that he has a close relationship with his mother and step-father, who live close to him in [X]. C’s uncle and great-grandparents also live in Adelaide.
Mr Mauldon is dubious that Ms Mauldon is close to her brother and sister, who live in Queensland.
In his closing submissions on behalf of Mr Mauldon, Mr Cole proposed that the children should travel interstate two times per year in order to spend time with each other and the other of their parents. It was submitted that, given the expense involved, the parties could not realistically afford more frequent travel. It was also proposed that the expense of the travel should be shared equally between the parents.
Ms Mauldon proposed that the children travel each holiday period and again that the expense be equally shared between the parties. She had no clear proposals about how she would be able to afford this, apart from the fact, to their mutual credit, the parties had been able to manage the expenditure required in April, the mid-year and in the December/January periods of last year.
In my view, this is one of the most difficult aspects of the case, regardless of the outcome. I am left with the uncomfortable feeling that neither party has closely considered the issue of the children’s travel and how it is to be paid for.
Up to this stage, the parties have managed the children’s travel on an ad hoc basis. In difficult circumstances, the children have been able to maintain holiday contact with one another. I am concerned that these arrangements will become more difficult in future, particularly if the cost of interstate travel increases. Accordingly, Ms Mauldon’s decision to move interstate has had significant implications for the children’s ability to maintain a meaningful relationship with one another and with each of their parents.
e) The family report and the evidence of Ms Quigley
Ms Quigley described the dynamic in the family as very complicated and the decision required from the court in the case as a very difficult one. I agree with both those assessments.
In simple terms, the case boils down to whether C’s greater need is for demonstrative love and nurture or, because he is a somewhat vulnerable child, is it more important for him to have a sense of continuity in his life and be subject to greater routine and predictability.
The sad truth is that C needs both these attributes in his parenting, which the parties could provide to him in tandem with one another but in respect of which individually, they both have some significant deficits.
Ms Quigley described Mr Mauldon as being not demonstrative emotional and not being a great communicator about his feelings. On the other hand, she described Ms Mauldon as likely to be more emotionally available to the children. I agree with this assessment, which was made manifest by the party’s respective demeanours in the witness box.
Overall, Ms Quigley considered that C was likely to get more love and nurture from his mother but more structure, discipline and routine from his father. She characterised C as a vulnerable child, because of his epilepsy and learning difficulties. She thought he might have some self esteem issues. As such, she thought C’s greater need was for stability.
Ms Quigley interviewed the children individually. They presented to her quite differently. D was somewhat uncomfortable with the interview process. Ms Quigley’s impression was that he wanted to say what he felt he had to say as quickly as possible. What he had to say was that he wanted to continue to live with his father because “I am a boy and I need a dad”.
Ms Quigley was concerned at the level of rupture in D’s relationship with his mother. She believed it was possible that, either consciously or unconsciously, Mr Mauldon had colluded with D to bring about this situation.
She also noted that, in the past, Mr Mauldon had done little to facilitate the children’s relationship with their mother, leaving it to the children themselves to decide if they wanted to telephone or see their mother. Ms Quigley would have preferred that Mr Mauldon was more proactive in this regard.
B’s presentation during the interview with her concerned Ms Quigley very much indeed. B cried during most of the interview and seemed to be emotionally torn. Ms Quigley considered it unusual for a child of B’s age to demonstrate such extreme distress in the interview process.
Of the three children concerned, Ms Quigley considered that B had been the most severely affected by her parents’ separation. In the interview, B described missing her father very much indeed. However, when she had been living with her father, she also said to Ms Quigley that she had missed her mother intensely.
In such circumstances, it was clear to Ms Quigley that B was torn in her loyalty and love for both her parents. This was one reason why
Ms Quigley recommended that Ms Mauldon and B return to live in Adelaide, if this was possible.
Ms Quigley described C as a jovial and cheeky child, who enjoyed participating in the interview process with her. However, his demeanour became much flatter and sadder, when Ms Quigley engaged him in discussion about his mother.
Ms Quigley asked C specifically with whom of his parents he would prefer to live. He told her that he wanted to live with his mother.
Ms Quigley did not think that Ms Mauldon had influenced C, to any great degree, in the expression of his view. It was her impression that C was currently missing his mother very much indeed and had only positive views about her.
However, C did not articulate any negative feelings about his father and could think of nothing he would want to change in Mr Mauldon’s household, although it was clear that he did not always get on with T. In such circumstances, Ms Quigley considered it possible that, had the tables been turned and C was living with his mother, he may have said to her that he would prefer to live with his father.
Ms Quigley did not get any great sense that there was a significant connection between D and C. She agreed that C would benefit from having a male role model but she considered that his greatest need was for stability.
Ms Quigley thought Mr Mauldon was better placed to provide this stability than Ms Mauldon. Ms Quigley was somewhat critical of the haphazard nature of Ms Mauldon’s relocation to Brisbane, although she was pleased to learn that Ms Mauldon had been able to maintain the same accommodation and employment in Brisbane over the past twelve months.
Overall, Ms Quigley’s report can be summarised as follows:
·C misses both of his parents, when he is not with them.
·B is struggling to cope without the consistency of her father’s presence in her life, as well as that of her grandparents and childhood friends.
·The children do not enjoy living apart from one another. As such, it would be beneficial for them if Ms Mauldon returned to live in Adelaide.
·C’s age dictates that his views can only be taken into account in a limited way. He is not likely to be mature enough to either articulate or appreciate the benefits of stability, which he draws from his father’s household.
·C is a vulnerable child because of his learning problems, stemming from his epilepsy. As such, he has a greater need for continuity and stability in his home and school environments, so that he has sufficient emotional energy to direct towards learning and behaving appropriately.
·Although C is at an age when it is likely to be easier for him to change school, it is beneficial for him to remain in the same cohort of friends.
·Ms Quigley believed that Mr Mauldon’s household was a more stable one for C. She was concerned that Ms Mauldon had not closely considered the consequences of moving either C or B away from Adelaide, when she moved to Brisbane.
·However, if Ms Mauldon returned to live in Adelaide, Ms Quigley would recommend that C live with her, provided he could continue to attend the same school.
·Ms Quigley conceded that most likely C would prefer to live with his mother, as her parenting style was more relaxed.
·On balance, Ms Quigley considered it more likely that C was closer to B than to D.
·None of the children had raised the question of Ms Mauldon’s relationship with Ms P. This was not likely to be an issue for the children, unless they were unfairly stigmatised by others because of it.
·D needed more encouragement from his father to pursue his relationship with his mother. Whilst B needed more support from her mother to consolidate her relationship with her father.
·As a result, the children needed to be encouraged to telephone the parent they were not with regularly. This was because each of the children had well established relationships with both their parents.
·In such circumstances, all of the children, but particularly C, needed to see their parents and each other as often as possible.
·Ms Quigley was concerned at the possibility of C not seeing one of his parents for periods of up to six months. This could possibly weaken his parental relationship with the other parent concerned.
As a result of her observations of the family and her interviews with each of the parties, Ms Quigley recommended as follows:
·Whilst Ms Mauldon continued to live in Brisbane that C live with his father.
·C continue attending his current primary school.
·In such circumstances, C spend time with his mother during every school holiday.
·If Ms Mauldon returned to live in Adelaide, C should live with his mother, provided she obtain suitable accommodation and C was able to attend the same school. In such circumstances, she recommended that C be able to spend at least five nights per fortnight with his father.
·The children be at liberty to contact their parents by telephone at all reasonable times and that they should have a scheduled telephone communication on two occasions each week.
Determining the children’s best interests – s.60CC
(a) The primary considerations
The applicable legislation places two considerations in a position of pre-eminence – the need to protect the children concerned from harm, as a result of exposure to abuse and family violence; and the benefits of the children having a meaningful relationship with both their parents.
There are no concerns raised by either of the parties concerning neglect, abuse or family violence. Accordingly considerations of the children pursuing a meaningful relationship with both their parents must be given pre-eminent consideration in this case.
In the circumstances of the present case, the children can only have the optimal level of relationship with each of their parents, which the applicable legislation promotes, if Ms Mauldon returns to live in Adelaide or, even more unlikely, Mr Mauldon elects to move to Brisbane.
At this stage, neither of these outcomes is probable. The court does not have authority to compel a parent to move in order to maximise a child’s parental relationships.
Accordingly, in this case, a combination of the additional considerations is likely to be more influential in shaping the outcome than one or other of the primary considerations. However, overall, the court must continue to give significant consideration as to the best means for the children to have a meaningful relationship with both their parents, in the difficult circumstances which prevail.
Additional considerations
a) The children’s views
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[14]
[14] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[15]
[15] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[16]
[16] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
Since the parties separated, D has lived primarily with his father. He is the most mature of the children. His views are clear and unequivocal. He wishes to remain living with his father – a circumstance acknowledged by both parties and one which neither party seeks to change.
B is the most obviously troubled and torn of the children. She deeply misses her father but, when she lived in his care, deeply missed her mother and wanted to return to her care. She is confronted with a decision which it is impossible for her to make. She wants to live with both her parents. However, given what happened in May 2007, her most likely preference is to remain where she is.
C faces a similar dilemma to B. He told Ms Quigley he would prefer to live with his mother. He finds many aspects of her household appealing. He loves and misses his mother. However, he would undoubtedly miss his father, if the tables were turned. Indeed,
Ms Quigley does not rule out the possibility that C would have expressed a different preference if he was living with his mother rather than his father at the time of interview.
C is the most immature of the three children, at just over ten years of age. He also has some learning delay, as a result most probably of his epilepsy. As a result, he is a vulnerable child. Ms Quigley considered that it would be inappropriate for C’s views to be the fulcrum upon which this case turns. I agree.
From C’s point of view, the pros and cons of each household are closely balanced. He has spent much time living with each of his parents. If he is with one, he will miss the other. He is in a “no win situation”. As such, in my view, it would be highly artificial for C’s views, proffered in a brief snapshot taken by Ms Quigley, to be central to the outcome of the case.
C’s views are important, but I must bear in mind his age. In addition, given his strong attachment to both his parents, his preference is unlikely to be unequivocal. If C’s circumstances change, so may his views. Accordingly, the consideration of C’s views must be placed in the mix, with the other factors that the court must consider pursuant to s.60CC(3).
b) The nature of the children’s relationship with each of their parents and significant others
As I have already indicated, the children have a close and loving relationship with each of their parents. How could it be otherwise, given that the children were cared for both their parents up until separation and in the period since have spent substantial periods in the care of one or other of them.
In this case, I think it simplistic to consider that one parent has been the children’s primary or habitual carer. In my estimation, both have been involved to a very substantial degree. On any view, the children have a highly significant relationship with each of their parents, which any consideration of their best interests dictates should be continued and supported.
The strength of their attachment, to both their parents, has created an emotional dilemma for both B and C. They want to live with both their parents. This led Ms Quigley to canvas, in her report, the possibility of Ms Mauldon returning to live in Adelaide. Unless Ms Mauldon changes her mind, this is not a possible outcome in the case.
D, at 15 years of age, is beginning to separate himself from his family. It is likely that he will leave school fairly soon to pursue an apprenticeship. His relationship with his father is secure and comfortable. His relationship with his mother has been more troubled, perhaps in part because he has chosen to align himself with his father. However, of late, it seems that D is getting on better with his mother.
C is caught in a “tug of love” between his parents. Essentially,
Mr Mauldon and Ms Mauldon agree that the status quo should prevail in respect of both B and D. In such circumstances, each has a vested interest in promoting the nature of C’s relationship with B on the one hand and D on the other.
As I have previously indicated, it is difficult to determine this issue definitively. It seems to me highly probable that C has a significant relationship with both his older siblings. However, I defer to
Ms Quigley’s view that C currently seems considerable attraction in sharing a household with B, because the two are close. Certainly, in the past, the children have had the same care arrangements, whereas D has always elected to align himself with his father.
It is an invidious task for the court to attempt to assess the differences in the relationships C has with each of his parents. I accept that the relationships are different, largely as a result of the different emotional make-ups of the parties concerned.
Mr Mauldon is a more laconic and disciplined in his parenting.
Ms Mauldon is more emotionally available and demonstrative. As I have already indicated, it is my view that both parental attributes are likely to be important to C. At the end of the day, it is clear to me that C loves both his parents and wants to be with both of them.
Ms D, in my view, a great asset to the father’s household. She is available to care for C but does not wish to replace Ms Mauldon as C’s mother. I accept that she has a close and appropriate relationship with both C and B.
It is more difficult to assess the nature of the relationship which Ms P has with each of the children. Mr Mauldon has no specific criticisms of the level of care she provides to B. In such circumstances, it seems more likely than not that B gets on well with Ms P. Certainly, given the amount of care Ms P provides to B, I would expect this to be the case.
In general terms, I accept that the children have many relatives, on their father’s side, in Adelaide. It is likely to be of benefit to the children for them to maintain and consolidate these relationships.
Ms Mauldon did not place great emphasis on her relatives in Queensland, in the presentation of her case.
c) The willingness and ability of the parties to encourage a close and continuing a relationship between the children and the other parent
Ms Quigley is critical of both parents for allowing the children to determine arrangements for their care in the past. Certainly, it seems to me that the parties have not approached the task of parenting the children, following their separation, in a highly organised or consensual fashion. Arrangements have been made on an ad hoc basis, which have been driven by periods of mutual instability. Whilst each of the parties acknowledge that the children need to have a strong relationship with the other parent, they have not always displayed this commitment in concrete terms.
In my view, both parties acted inappropriately and unilaterally in January and April of 2007. At these times, neither party gave any thought as to how the children would maintain their relationship with the other parent. In addition, it seems likely that Mr Mauldon has, either actively or passively, encouraged D to align himself with
Mr Mauldon.
However, in the period since the institution of the current proceedings, the parties, in difficult circumstances, have been able to ensure that the children have spent time together in both Brisbane and Adelaide. In addition, when B indicated her wish to return to Brisbane, Mr Mauldon ensured that this happened as quickly as possible. Accordingly, the parties have shown some capacity to work together. However, I am concerned that their capacity in this regard remains limited.
c) The likely effect on the children of any change in their circumstances
In my view, the matters which fall for consideration under this heading are the most important in the case, particularly so far as C is concerned. He is a vulnerable child. Given his vulnerability, the pros and cons of any change in arrangements for his care must be closely considered.
At present, I consider that C is living a stable and well ordered life with his father in Adelaide. He is doing well at the school, which he has attended for the vast majority of his life.
Mr Mauldon and Ms D place particular store, in their household, on routine and continuity of care. I accept Ms D’s evidence that C’s performance at school and his behaviour there have improved in the last year. In such circumstances, in my view, there exist considerable risks in changing arrangements for his care at this stage.
In particular, a move to Brisbane would undoubtedly be a very significant one for him. He would be removed from his cohort of friends at school and would have to start at a new school and make new friends. It is not beyond the bounds of possibility that this move may not be successful.
Similar considerations exist in respect of B. She is now well settled in Brisbane. In addition, in April/May of 2007, she made it clear that she saw her future with her mother in Brisbane. In any event, Mr Mauldon does not seriously push any application in respect of her particularly that she return to live with him in Adelaide.
Accordingly, the circumstances tend towards the maintenance of the current status quo, unsuitable as it is. However, too a large degree, this invidious position was and is driven by Ms Mauldon’s unilateral choice to move B and C to Brisbane and her current unwillingness to consider returning to live in Adelaide.
At this stage, although it will result in the separation of B and C, it is my view that C’s interests will be best served if he remains living in Adelaide, in his father’s care. I accept Ms Quigley’s evidence that C’s greatest need currently is for stability and continuity in his care.
This has been provided to him, by Mr Mauldon and Ms D, for the last eight months or so. Although it is a heart breakingly difficult decision to make, I do not think that the fact that C is pining for his mother is sufficient justification for such a significant change in his care arrangements, at this stage.
e) The practical difficulties and expense of the children spending time and communicating with each of their parents
D, B and C’s family is fractured. It will remain fractured whatever is the outcome of the case. This is as a result of Ms Mauldon’s decision that she wants to start a new life for herself in Brisbane and will not contemplate a return to Adelaide. As I am at pains to point out, she is entitled to pursue the life of her own choosing. However her choice comes at a cost to the children and to Mr Mauldon, whose relationships suffer as a result.
Significant consequences arise from Ms Mauldon’s decision to move interstate. Notwithstanding Ms Mauldon’s choice, the children retain an entitlement to maintain their relationships with one another and with each of their parents. It will be difficult for this entitlement to be satisfied, given the geographical circumstances which prevail.
The responsibilities of being a parent can last a lifetime. Certainly until the children concerned reach financial independence. One of the parental responsibilities is to maintain familial relationships likely to be important to the children involved.
It is a very long way between Adelaide and Brisbane. The best means of travelling between the two locations is by air. Air travel is potentially expensive. This case does not provide easy answers to the problems arising from the distance between the parties’ two homes and their mutual lack of funds. Ms Mauldon’s desire to live interstate will involve a heavy financial burden for some years to come.
It is tempting to think that, as the person who seeks such a radical change in her life circumstances, Ms Mauldon should bear more of the costs of travel involved than Mr Mauldon. But she is a person of limited means, as indeed is Mr Mauldon. A consideration of the children’s best interests dictates that the children’s costs of travel should be shared equally between them. The more difficult issue is how many trips there should be each year, given the scarce financial resources of both parties.
Ms Quigley recommends that the children should see one another and the other of their parents on at least four occasions each year.
Mr Mauldon proposes two occasions, given the expense involved. I share Ms Quigley’s concerns that six months is too long a period for the children not to be able to see one of their parents. However, I acknowledge that the financial burden of four trips a year, for three children, is likely to be one which the parties will find difficult and possibly impossible to sustain in the long term.
Other practical difficulties arise because the school holidays in Queensland and South Australia do not always match. As such the children may be caused to miss some school. In my view it is more important that they maintain their familial relationships. Regrettably the orders I make in respect of the children spending time with each of their parents in this regard will be somewhat vague.
Again the court is confronted with the sad fact that there can be no perfect outcome in this case. However, regardless of the entitlement of Ms Mauldon to live wherever she chooses, the best interests of the children remain paramount. In such circumstances, I consider that there should be at the minium two opportunities for the children to spend time with one another and the other of their parents each year, which the parties will be required to contribute equally towards the travel costs involved.
Thereafter I propose giving each party the option to be able to spend more time with the children in the other shorter school holiday periods. Again I appreciate the orders are necessarily vague but I take heart in the fact that Mr Mauldon and Ms Mauldon have been able to make holiday arrangements up until this stage.
I will make orders to this effect. It also seems sensible that one party should be responsible for making the necessary arrangements. I propose the father, through the agency of Ms D, who has demonstrated she has the required attributes to perform the task successfully and at the minimum cost to the parties.
f) The capacity of the parties to provide for the children’s emotional and intellectual needs
Again, the matters which fall for consideration under this criterion, are highly influential in the outcome of the case. The section speaks of the needs of the children, placing particular weight on their emotional and intellectual needs.
The needs of a child of C’s age, with his particular attributes, are varied and complex. As I am at pains to point out to the parties, I consider that both of them have the capacity to supply some but perhaps not all of those needs to the optimal standard required and also, given the differences in their personalities and backgrounds, are likely to satisfy those needs in different ways.
Ms Mauldon is likely to be better placed to satisfy C’s emotional needs. She is a loving and emotional available parent. I do not discount for a moment the importance of physical affection and maternal availability to a child of C’s age.
On the other hand, Mr Mauldon, in conjunction with Ms D, is better placed to supply C’s intellectual needs and ensure that he progresses satisfactorily in a school environment, which C is likely to find challenging, given his learning difficulties and vulnerabilities.
In an ideal world, the parties would supply these various needs in tandem. C would have a sense of meaningful connection to both parties. Given Ms Mauldon’s move to Brisbane, this is no longer possible.
In my estimation, both Mr Mauldon and Ms Mauldon are concerned and well motivated parents, who wish the best outcome for each of their children. However, in the difficult circumstances which prevail, I consider that C’s most important need currently is for stability and routine, particularly in respect of his attendance at school. This is a factor which militates in favour of him remaining in his father’s care.
f) The children’s maturity, sex, lifestyle and background
h) Aboriginality
I do not think there is anything in any of the children’s ages, sex, lifestyle or background which is particularly relevant for consideration under either of these criteria.
i) The attitudes that each party has demonstrated to the responsibilities of being a parent
Necessarily there is some overlap with the matters which fall for consideration under this subheading with matters that have been discussed under preceding subheadings. It is clear to me that both parties dearly love D, B and C and want the best for them in the future. In this sense, they are both committed to the responsibilities inherent in being a parent.
I am satisfied that both C and B receive proper parenting from
Ms Mauldon and Mr Mauldon respectively. As I have already indicated, it is my view that neither party behaved particularly well in the early part of 2007. In particular Ms Mauldon’s plans to move to Brisbane were not well thought through. Too a very large extent, she put her own needs before those of the children.
I accept however that her accommodation is now stable and she has secure employment there. As such, she is now able to offer B a safe and secure home. B is well settled in Brisbane, although deeply missing her father.
Similarly, Mr Mauldon is well settled with Ms D. They are both committed to ensuring that both D and C have happy and secure lives and are well looked after. Each of the children is well fed, well housed and well cared for. They are much loved children.
f) Family violence
k) Any family violence orders
These are not relevant considerations in the present case.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive, in both financial and emotional terms, and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant.
Whatever is the outcome of these proceedings, one of the parties will be bitterly disappointed. In addition, there will be the complications of distance and expense, arising from the distance between their respective households. It will be difficult for the children to move between Adelaide and Brisbane, on a regular basis. These are not happy indicators, so far as the likelihood of there being no further proceedings between the parties.
However, on balance, I have reached the conclusion that the maintenance of the current status quo is the outcome which is least likely to lead to the institution of further proceedings. I reach this conclusion because both C and B seem to be settled in their respective current arrangements.
Conclusions
Before I make any parenting order, I am required to consider whether the presumption of equal shared parental responsibility applies. In this case, there are no issues of abuse or family violence. In addition, up to this stage, both parties have been extensively involved in caring for the children. One of the sad factors in this case is that C and B, in particular, are emotionally torn between their parents, who each fervently wish to be involved with the care of their children.
In such circumstances, it does not seem appropriate to me that one parent should be promoted over the other in respect of parental responsibility in regards to any of the children. Accordingly, it is my view that it would be in the best interests of the children concerned that Mr Mauldon and Ms Mauldon have equal shared parental responsibility for D, B and C.
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Apart from the difficult issue arising from Ms Mauldon’s desire to live with the children in Brisbane, the parties have been able to manage all the major long term issues to do with the children.
In future, I do not think it likely that there will be many controversies between them regarding other major long term issues. In the circumstances of this case, particularly given the fractured nature of the children’s family, I consider it important that the court should emphasise to the parties concerned that they are both involved in sharing responsibility for their children.
The next part of the exercise is to consider what should follow from that presumption. The exercise of the presumption is mandated by section 65DAA. It would clearly be in the interests of all three children to spend either equal time or substantial and significant periods of time with each of their parents.
However, given the geographical circumstances which prevail, this is impossible. I have no authority to compel Ms Mauldon to return to live in Adelaide with B. It would not be for me to suggest to
Mr Mauldon that he should move with Ms D, D, C, T and J to Brisbane, even if he should wish to move away from Adelaide where he and they are well settled.
Australia is a large country. Its citizens enjoy a high degree of mobility and it is a common phenomenon that members of the Australian community move interstate to pursue employment possibilities or lifestyle changes.
For understandable reasons, Ms Mauldon and Ms P want to live in Brisbane. Their desire in this regard creates complex dilemmas for
Mr Mauldon and so for the court. C has been living in Adelaide since April of 2007. He has lived in Adelaide for all of his life prior to that, apart from the first few months of 2007. I do not think that it would be in his best interests for this long standing arrangement to be changed.
At the end of the day, the case is a finely balanced one and the decision a heart breakingly difficult one to make. Having considered the various section 60CC factors applicable, I am satisfied that they marginally lean in favour of C remaining in his father’s care, particularly as this is the arrangement which provides him with the most stability and routine. Attributes which are particularly important to him, given his special needs. I do not think another major change in his life would be in his best interests at this stage.
In my view, it is artificial to think in terms of whether C is closer to B or to D or indeed to Ms Mauldon or Mr Mauldon. In my estimation, he is close to all the members of his family. This emphasises the lack of a perfect outcome in this case.
Whatever is the outcome, C’s family will remain fractured. To my mind, this serves to emphasise that a cautious approach needs to be taken to his care, as Ms Quigley recommended and, as such, militates against any further changes in where C should live at this stage, imperfect though this outcome is
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and eighty (280) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 27 February 2008
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