McD and McD
[2005] FMCAfam 34
•7 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McD & McD | [2005] FMCAfam 34 |
| FAMILY LAW – Children – planned relocation of mother from D to B of children aged 4 & 3 – assessment of parties’ competing applications – father seeks to restrain mother in D and implement shared care regime – consideration of alternative outcomes to the primary proposals of the parties. |
Family Law Act 1975, ss.60B; 65E and 68F
B and B: Family Law Reform Act (1997) FLC 92-755
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
Fragomeli & Fragomeli (1993) FLC 92-393
U & U [2002] FLC 93-112
D & SV (2003) FLC 93-137
Craven v Craven (1976) FLC 90-049
T & N [2001] FMCAfam 222
| Applicant: | S C McD |
| Respondent: | C McD |
| File No: | DNM 165 of 2004 |
| Delivered on: | 7 February 2005 |
| Delivered at: | Darwin |
| Hearing dates: | 13, 14 & 28 January 2005 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms T |
| Solicitors for the Applicant: | H |
| Counsel for the Respondent: | Ms B |
| Solicitors for the Respondent: | C B |
ORDERS
That the children of the marriage M J McD born 15 March 2000 and
R J McD born 4 June 2001 live with the mother in B.That the parties retain joint responsibility for making decisions concerning the long term care, welfare and development of the said children.
That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the said children when they are in his or her respective care.
That, in the event that the father is not living in same location as the children, the father have contact to the children in the location where he resides or at such other location as the parties may agree from time to time as follows:
(a)For the whole of the March/April Q school holidays in 2005 and each year thereafter;
(b)For the whole of the mid year (June/July) Q school holidays in 2005 and each year thereafter;
(c)For the whole of the September Q school holidays in 2005 and each alternate year thereafter;
(d)For 4 continuous weeks of the Q December/January school holiday in each year so that such 4 week period includes Christmas Day in 2005 and each alternate year thereafter but does not include Christmas Day in 2006 and each alternate year thereafter;
(e)On up to three weekends each school term in B on the father giving the mother 14 days written notice of his intention to exercise contact in this regard;
(f)At any other time and on other conditions as may be agreed between the parties from time to time;
(g)By telephone at times to be agreed between the parties but on no less than two occasions each week and failing agreement between 6.00 pm and 7.00 pm Q time on each Wednesday and Sunday.
That in the event that the said children are not otherwise with the father on Christmas Day in any year and in the event that the father is in the same location as the children the father have contact with the children from 5.00 pm Christmas Day until 5.00 pm the following Boxing Day.
That, in the event the father is living permanently in B, the father have contact to the children as follows:
(a)For half of all Q School holidays;
(b)During school terms on alternate weekends from after school on Friday until the commencement of school the following Monday or Tuesday in the event that Monday is a public holiday;
(c)During school terms on one overnight occasion to be agreed between the parties and failing agreement from after school on Tuesday until the commencement of school the following Wednesday;
(d)At other times as may be agreed between the parties from time to time.
That the father and mother share the costs equally of the air travel for the children to undertake the contact as set out in Orders 4(a) to 4(d) hereof with the father to pay for the children’s airfare from B to D (or such other location within Australia at which the father may be residing) and the mother to pay for the children’s return airfare from D (or such other location within Australia at which the father may be residing) to B at the conclusion of each contact period.
In the event that the mother deems it necessary for the children to be accompanied for any of the contact as set out in Orders 4(a) to 4(d) hereof she shall be responsible for paying all the necessary cost for the children to be so accompanied.
That the parties each endeavour to obtain the cheapest available economy airfares for the purposes of facilitating the contact as set out in orders 4(a) to 4(d) hereof and advise the other of those arrangement in writing, including details of flight arrival and departures times and flight numbers 14 days prior to the date of travel.
That the mother authorise the principal of each school attended by the children from time to time to send to the father:
(a)A photocopy of each school report concerning each child;
(b)An order form for each school photograph of each child.
That the father be at liberty to attend to visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
That the parties provide 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 days of such change.
That if either party intends to travel away from their usual place of residence with the children during any period of holiday contact they provide the other with an itinerary providing details of departure and return and the address and telephone number of the place where the children will be staying during such holiday.
That while the children are with the father the mother have contact with the children by telephone each Wednesday and Sunday between 6.00 pm and 7.00 pm by reference to the time at the location where the children are at the time.
That neither party denigrate the other or permit any other person to denigrate the other party either in the presence or hearing of the children herein.
That 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 and advise the other as soon as practical of each treating doctor or like professional attended by the child.
That the mother keep the father informed of the names and addresses of all medical practitioners and other therapists (including psychologists, speech pathologists, physiotherapists and other allied health professionals) attended by the child R from time to time in respect of his special needs and provide him with details of all treatment and therapies received by the said child from such persons and the father be at liberty to attend upon all such medical practitioners and therapists to inquire as to the details of the treatment received by the child and as to the child’s progress and prognosis.
All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month from the date of these orders unless an appeal is lodged.
The solicitor who issued any subpoena is to collect the subpoenaed material and return it to its owner within seven days of the date of these orders.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 165 of 2005
| S C McD |
Applicant
And
| C McD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. The parties to the proceedings are S C McD “the father” and C McD “the mother”. The parties are the parents of two children, M J McD born on 15 March 2000 and R J McD born on
4 June 2001.
The father is a s in the r a. In 1996 he was posted to B, where he met the mother. She has lived in B since 1987 and considers it to be her hometown. It is where her parents live. The parties married in B on
20 September 1997. Both M and R were born in B.
In January of 2004 the father was posted to D for three years. The parties made a decision that they would relocate to D as a family. Shortly afterwards the father was sent on active service to the S I. The mother remained in D with M and R. She was unhappy in D, where she felt isolated and without family support.
Whilst the father was in the S I, the marriage between the parties broke down. The mother telephoned the father in the S I and told him she was leaving the marriage. The father was understandably distraught and successfully sought compassionate leave to return to D to discuss things with the mother. Relations between the parties during this time were very tense. They finally separated in difficult circumstances in April of 2004. At this stage, with the assistance of the military authorities, the mother left D secretly with M and R and returned to B. She certainly did not have the father’s consent to move the children to B. It is the mother’s case that she was fearful of the father during this time and at what he might do to her and the children. As a result she believes that she had no option but to flee to a place where she felt safe.
The father was concerned at this unilateral action on the part of the mother, which had the immediate effect of depriving him of the opportunity of being involved in the children’s day to day care. As a result he commenced proceedings in this court on 16 April 2004 seeking to compel the mother to return the children to D. Thereafter, on both an interim and final basis, he sought orders that would see the children living with both their parents, in what is commonly called a “shared care arrangement” – that is living with their parents on an alternating weekly basis.
The mother resisted the application that she should return to live in D with M and R. On both an interim and final basis she wished to continue living with the children in B, which is familiar to her and where she feels happy and supported. On 24 May 2004, I made orders requiring the mother to return M and R to the D area. In the event the mother chose to live in D, I ordered that the children should live with her until the final hearing and have contact with their father on alternate weekends. The mother elected to live in D and returned to the city in early June of 2004. Accordingly the children have lived with her predominantly since the parties separated.
However, the mother still wishes to live in B with M and R. This is an outcome the father vehemently opposes. He still seeks that the children should live in D and that a shared care arrangement in respect of their care be implemented between the parties as soon as possible. These proceedings are concerned with resolving these competing applications.
It is the father’s case that the A will not post him to B on compassionate or any other grounds. Accordingly, until at least January of 2007, he will be compelled to live in D. It is the mother’s case that she has been the parent who has been more intimately involved with the care of the children since the time of their respective births. In the jargon of social scientists, she is the children’s primary carer. As such, her state of personal contentment is likely to have consequences for her ability to properly parent the children concerned in future.
The mother is bitterly unhappy at the prospect of living in D and cannot countenance the prospect of living in the town for any longer than necessary. In those circumstances, she believes that the children’s best interests will be served if she can move with them to B as soon as possible, where she and so they are likely to be happier. She asserts she will receive greater emotional support in B, where her friends and family live, than can ever be available to her D, where she feels a prisoner in a foreign environment beholden to the wishes of the father and forced to abandon her own. In such circumstances, she believes that it is impossible that she should ever be able to parent the children to the full extent of her ability.
The stressful circumstances of the parties’ separation, particularly the mother’s friendship with D M, one of the father’s work colleagues, continue to reverberate with each of them. Currently the parties have an uneasy and mistrustful relationship with one another. In those circumstances, the mother believes a shared parenting regime is unworkable between the parties and likely to be emotionally detrimental to M and R.
The mother is also critical of the father for wanting to retain her, with the children, in D indefinitely against her will, when in all likelihood he will get a posting to another location within Australia at the start of 2007. In such circumstances, she asked whether she would be required to pack up and follow the father to this fresh location. If so, she believes this would be an intolerable infringement on her personal freedom and evidence that the father has not thought through the consequences of his application properly.
The children concerned are still of tender years. M is a happy child, who is reaching all her developmental milestones on schedule. R is not so fortunate. His development has been severely delayed, particularly in respect of the acquisition of language and socialisation. No definitive diagnosis has been made but Asperger’s Syndrome or autism is highly probable. It is the mother’s case that it is likely that R’s special needs will be better catered for in B – a city of several million rather than in D – a town of just over one hundred thousand.
The father is fearful, that in the event of the children going to live in B, given their ages and level of development at present, there is a real risk that their relationship with him will be severely impaired. In effect that the children will loose the opportunity to develop a close and loving relationship with him, as they grow older. He is concerned that the children’s memory of him will diminish between periods of holiday contact and as a result their existing close bond with him will inevitably wither diminish. He will be deprived of the opportunity to interact with the children on a day to day basis and so play a proper role in their development. The consequence of this will be that the children will loose a parent. This is likely to have long term consequences for their emotional development. He wishes to be closely involved in every aspect of the children's lives as they unfold and not confined to the role of “holiday parent”.
The father harbours a great deal of mistrust for the mother and her parents, Mr B and Mrs C S. He fears that the mother and Mr and Mrs S, because of their antagonism towards him, will work together to snuff out his relationship with the children in the event that they go and live in B. He believes that they will infect the children with their hostility towards him.
As a consequence of all these matters, the father believes that the shared care arrangement, which he proposes between the parties in D, is an appropriate compromise to achieve the children’s best interests. In his words, the children will have two parents rather than one. He believes that such an outcome would be the fairest one for all concerned. He asserts that the mother will be able to put aside her disappointment at not being able to live in B and will instead focus on making the shared parenting arrangement work in D. He is prepared to modify his working hours to make such an arrangement work and sacrifice his own career aspirations to this end.
He himself has no long-term interest in returning to live in B. In the event that he is posted to another location within Australia at the commencement of 2007, he concedes that it would be difficult for him to compel the mother to relocate herself to that location. At that time he would be prepared to reconsider matters. He indicated in his evidence that at that point he would be guided by the wishes of the children.
In order to assist the court with the resolution of this difficult matter, a family report was prepared. This report was prepared by psychologist and family court counsellor, C M. Ms M reported that both M and R had a loving relationship with each of their parents. However, Ms M is of the view that the children’s best interests would be served by them living with the mother in B. She was however concerned that M would be distressed at being separated from her father and R’s condition may impact on his ability to manage the relocation. Overall, she believed both children would be unsettled by the proposed move at this stage.
Ms M did not believe that a shared parenting regime was a workable outcome because of the level of hostility and mistrust currently existing between the parties. She did not believe that the parties had the necessary capacity to communicate with one another to make such an arrangement effective. The father does not accept Ms M’ conclusions or recommendations.
There is no satisfactory outcome in this case. Both parties wish to play as large a role as possible in M and R’s lives as they grow and develop. The next few years are likely to be crucial for both children, particularly R. At the same time, they both wish to pursue career and personal opportunities in the city of their choice. In the mother’s case in B, where she feels most supported and where she has lived for most of her life. In the father’s case in D, where his career has sent him and from which location he is unable to extricate himself in the short to medium term.
If I make the orders the mother wishes, M and R will loose a great deal of their contact with their father, because they will be living far away from him; and the father will be sad and upset at the separation. In addition, contact will necessarily be limited to school holidays and the father will be deprived of the opportunity to interact with the children on a day to day basis. This means the father will be unable to be involved with M as she begins to attend school and with R as he receives ongoing therapy in respect of his special needs.
If I make the orders the father wishes, M and R will continue to see a lot of their father, but will be living with the mother, who will be prevented from following the life of her own choosing in B; and the mother will be sad and upset about the situation. In either case, the consequences of the problem and its resolution may well be a source of continuing bitterness between the parties, one of whom will inevitably feel harshly treated.
I say this at the outcome because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, whatever the outcome. I hope that the parents will each cope with the situation as well as possible, so that the inevitable difficulties for M and R will be minimised and their loving relationship with each of their parents maintained as well as the circumstances permit.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
In U & U[1] Hayne J said:
“What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”
[1] U & U [2002] FLC 93-112 at 89,102
Despite all of the disputes of fact between the parties in this case, one thing is abundantly clear to me, both the father and mother love M and R very much and want the best outcome for them from these proceedings. The children are fortunate to have two such concerned parents. I appreciate that not only the parties themselves and M and R will be affected by the orders that will be made in this case but so will many of their relatives, particularly their maternal grandparents, Mr and Mrs S and the paternal grandmother, Mrs McD. Accordingly, I am aware of the significance of this case for many other people. Although M and R’s best interests are my paramount consideration, I am well aware of the painful ramifications, which will inevitably flow from the decision that I will make in this case for all who have been intimately involved in M and R’s care up to this stage.
The competing applications
Both parties submitted comprehensive details of the orders they sought in this case.[2] It is not useful to repeat them verbatim at this stage. The father’s primary position is that the children should live with both him and the mother on an alternating weekly basis with the children being exchanged between the parties on Monday after school. This necessarily requires the mother to be living in D. He proposes that the children should spend half of each school holidays with each of their parents. He has specific proposals for special occasions, such as the children’s birthdays; Father’s Day; Mother’s Day and Christmas.
[2] see Father’s Amended Application filed 23 Novemeber 2004 and Mother’s Amended response filed 21 October 2004.
His secondary proposal, in the event that the children are living in Q and he is not, is that he should have contact to the children for four weeks in each long summer holiday and for all of the term 1 and term 3 holidays in each year. He proposes telephone contact on each evening between 6.00 & 8.00 pm. Finally he seeks to have weekend contact, upon giving notice, in the event that he is able to travel to Q.
Finally, the father indicates that in the eventuality of him living in Q, presumably in reasonable proximity to the children, he would seek orders that would see the children living in a weekly shared care arrangement. However, although the husband seeks such an order, in his evidence he does not put the prospect of him living in B as a likely outcome, certainly not in the next two years.
Although it is not formally expressed in the orders he is seeking, the father would, as a last option, consider an order that would have the effect of delaying the children’s departure from D until the time he has finished his posting to the town in about January of 2007. In his affidavit material he deposed that he has considered leaving the A at this time and seeking alternative employment in D.[3] He also deposes as follows: “…ultimately I would have to find work closer to the children wherever they might be as they are my world.” How serious he is about leaving the A in 2007 and moving to wherever the children might be living at the time is uncertain to me. However, it is my clear view that the father would prefer to remain in the A if at all possible.
[3] See father’s affidavit at paragraph 98
The mother’s primary position is that the children should live with her in B. In this eventuality and in the event that the father continues to live in D, she proposes that he should have contact to the children until R turns six at times to be agreed between the parties in B; as well as liberally by telephone but on at least two occasions each week. The rationale for this is she believes that R will not be able to sustain being away from her for periods of any longer than a week at a time and as a result it is more appropriate that the father come to the children rather than vice versa. She has concerns about R travelling by air unaccompanied by an adult because of his special needs. Although it is not part of her written proposal she proposes that she would pay one half of all travel costs, either of the father coming to B or when the children are older and able to travel alone by air, the children going to where the father lives. When R turns six, she proposes the father have contact to the children for half of each school holiday. She has proposals as to how Christmas Day should be divided between the parties. Finally she proposes contact at times to be agreed between the parties on the giving of notice by the father, in the event he travels to B.
Although it is not an outcome she desires, in the eventuality she is not able to live in B with the children, she proposes that the children live predominantly with her and have contact with the father, during term time, on alternate weekends and from after school on each Wednesday until the commencement of school the following Thursday and for half of all school holidays. The proviso in respect of the contact being held to periods of one week until R reaches six years of age would also apply. She also has specific proposals as to how significant days should be divided between the parties.
These are also the contact arrangements she would seek in the event that the father chooses to live in close proximity to her in B. She is strongly opposed to any shared care arrangement, either in D or B.
The parties are in agreement in respect of many specific issues orders, namely:
·That they should jointly share responsibility for making all long terms decisions concerning M and R’s care, welfare and development;
·That each of them should make decisions concerning the children’s day to day care, welfare and development when the children are in their respective care;
·That each of the parties should be restrained from denigrating the other in the presence or hearing of the children;
·That the parties should keep each other informed of their respective residential addresses; telephone numbers and other contact details;
·That the parties inform each other expeditiously of any accident or medical emergency concerning the children and provide details of all routine medical treatment or other therapy prescribed for the children;
·That both the father and the mother be authorised to obtain relevant material such as school reports and information concerning the children’s medical treatment from the teachers, medical practitioners and other professionals concerned and both be allowed to contact these professional people by telephone to discuss the children’s progress or health;
·That both parties be permitted to take the children on holiday with him or her, provided an itinerary and contact details are provided to the other party.
Background
The father was born in I, N S W on 9 May 1974. The mother was born in the U K on 18 November 1977. She migrated to this country with her parents and brother B and sister L in 1983. The family moved to B in 1987. Her parents Mr and Mrs S and her sister L continue to live in B until now. It seems that apart from the period the mother has lived in D during 2004, she has lived continuously in B since 1987.
The father’s mother, Mrs L McD currently lives in B. She recently moved there from N S W. The father’s father died in 1999. His parents were separated for many years and he lived mainly with his mother. The father has a brother H, who also lives in B. He is married and has two children with his wife M, P aged 9 and S aged 13. The father is close to his aunt and uncle, P and G L, who live in T H. They are R’s godparents and regularly visited the family in B.
The father completed High School in 1992 and began a university course in engineering. However, before completing the course, he joined the A, firstly the A R and then the R A in 1995. He describes himself as a professional s. He currently holds the r of s. He is attached to the R A R, which is currently stationed at R B in D. The father has an open ended enlistment. That is he can remain in the A until he reaches the age of 55 years. It is necessary for him to give extended notice of his wish to leave the A. The father currently has no plans to leave the A. It is a career he enjoys and in which he has done well.
The father has progressed rapidly during his nine years in the A. He hopes to become a more s n-c o in time or possibly to become an o via a special entry scheme designed for n-c o to obtain a commission. His area of special expertise within the A is in l and s. A part of his r is overseas at present on a s. In those circumstances it is necessary for some of its members to remain in Australia to deal with supply issues. He is in that category at present. Due to these matters and the current proceedings, he is classified by the A as being on restrictive service. This means he can not be sent overseas on active service during the remainder of his posting to D, which at this stage will conclude in January 2007 at the earliest. The father enjoys living in D.
The mother completed High School in B in 1994 and thereafter began on office traineeship in Be. Later she trained to be an events co-ordinator with a firm in B. She enjoys this kind of work. The mother had other office jobs in B.
The parties met in B in June 1996. They started to live together shortly afterwards. They shared a unit together and then moved to a house in B, which was rented from the D D. They lived in this property between September 1997 and April of 2001. The parties married in B on 20 September 1997. In April of 2001, the parties purchased a house in P, a suburb of B. They moved into the house. No doubt this was connected with M’s birth. She was born on 15 March 2000. M’s godparents are J and G D. Mrs D is a close friend of Mrs S and the mother is a close friend of Mrs D’s daughter. They live in B.
Mr and Mrs S also live in P. Their home is a short drive away from the parties then home in P. Mr S is aged 54 years of age. He is a skilled tradesman, currently working for O. Mrs S is aged 52. She has worked for M for many years in B. Currently she is a permanent part-time employee, working up to three days a week. Mr and Mrs S have lived in P since 1988. Obviously the mother is very familiar with the area. It seems clear that the parties chose to purchase a house in P because of its proximity to Mr and Mrs S’s home.
In April of 2000, when M was still a babe in arms, the father was posted on active service in E T. His t of d was for a period of four and a half months. On his return to Australia in August of 2000, the mother became pregnant with R, who was born in B on 4 June 2001. Between September and December of 2000, the mother worked on a casual basis. Between January of 2002 and July of 2003, she worked as a part-time events co-ordinator in B. Otherwise she did not work in the paid workforce after M’s birth. Both children were breastfed – M until she was eight months old and R until he was nearly one year old. It seems clear that in the initial period of each child’s life the mother was primarily engaged in providing care for them, whilst the father provided to the financial needs of the family through his employment with the A. He concedes that after his return from E T his employment required him to be away from home for periods of up to two months each year.
In his affidavit material the father deposes that he spend a lot of time with the children and regularly fed, bathed and read to them. He concedes that at times his work required him to leave before they were awake and that he often returned after they had gone to bed. However, it is his case that he was involved with both children as much as he could be and in their early years assisted the mother extensively with their care: feeding, bathing and changing them regularly. His weekends were put aside for family activities.
R seems to have been a sickly child following his birth. He suffered from many respiratory complaints and was diagnosed with glue ear. He was hospitalised on several occasions. His development was also slower than usual and he was slow to walk. Of more concern was the delay he exhibited with speech. In July of 2003 the parties sought advise from a paediatrician in B, Dr McW, who thought that R might be showing some of the symptoms of Asperger’s Syndrome. However Dr McW believed that R was too young for a definitive diagnosis to be made. A referral was made to a speech pathologist in the hope that this therapy might stimulate R’s language.
In September of 2003 the father was advised that he was to be posted to D. At this time, the parties decided to rent their P home and move in with Mr and Mrs S until the time came for them to move to D in January of 2004. Initially some consideration was given to the father going to D alone but eventually it was decided that the whole family would relocate.
The family arrived in D in early January and moved into a house situated at 15 C C in D. This was a D F house. In early March of 2004 R fell ill with pneumonia and was hospitalised for five days. The mother wanted her mother to come to D to assist her with M’s care. The father suggested his mother, who was holidaying in D at the time. He was busy at work at the time, as his posting overseas was imminent. It was not a happy time for the parties. Eventually Mrs S flew in from B at her own expense.
On 14 March 2004, the father was deployed to the S I on active service. This time overlapped with R’s illness. A short time later, towards the end of March, the mother informed the father by telephone that she was leaving the marriage. She also told him she would be returning to Q with M and R in about three weeks time. As a result the father obtained the leave of his superiors to return to D to discuss matters with the mother. He returned to D on 1 April 2004.
The parties lived together in the D property, after 1 April. The mother wished to live in the property alone. The father was either unwilling or unable to find other accommodation. Without doubt it was a difficult and tense time and I suspect that both parties said and did things that they have later come to regret. The parties have different views about much of what occurred during this time. However it seems clear that the father, understandably in all the circumstances, did not react very well to the news of the separation, which was a complete shock to him.
The mother was not happy after she arrived in D in January. It is her case that she had grown apart from the father in the preceding period and the arrival of the family in D and what followed afterwards provided the final stresses that brought the marriage undone. She deposes that she found it difficult to care for the children without her mother’s assistance and felt isolated in D. The father acknowledges that “initially it was hard for the mother to come to D [as] it meant leaving her family behind”.[4] However it is his position that the mother “did not give D a proper go”.
[4] See father’s affidavit at paragraph 22
On 4 April 2004 the parties executed a document, which the father had prepared. This purported to be an agreement by which the parties were to share the care of the children on an equal temporal basis in Q. At this time, the father believed he would be able to get a compassionate transfer to Q. He was also to occupy the parties’ former family home in P. The agreement was witnessed by Mr M. In the light of the circumstances which prevailed between the parties at the time and what transpired afterwards, it is in my view a meaningless document. Neither party had any legal advise in respect of it and the mother soon resiled from it. In any event, the father was unable to obtain the compassionate transfer, which he sought.
The mother sought advice from the D Community Organisation “the DCO”. She made it know to them that she was fearful for her safety and concerned about the father’s mental state. Subsequently, unbeknownst to the father, the DCO arranged secret, emergency accommodation for the mother and children in D and on 11 April 2004 assisted her and the children to fly out of D to B. The father was not advised of these arrangements and would not have agreed to them if he been aware of them. The father agrees that he was distraught about the separation but denies he posed any threat to either the mother or the children. As a result of a visit from a DSO social worker to the D property, he was however admitted to hospital overnight as a voluntary patient, whilst, in his absence, the DSO made arrangements for the mother’s secure accommodation. The next day he consulted a psychiatrist and was discharged. By this time the mother and children had left D. I suspect that the father felt he had been tricked by the mother and the DSO social workers.
On her arrival in B the mother contacted a solicitor and proposed that the father have contact to the children on the public holiday long weekend commencing 1 May 2004. The father came to B on 23 April 2004 and had contact to the children for three days. The parties attended counselling. For obvious reasons, there was a high level of tension between them. The father had commenced proceedings in D seeking a recovery order for M and R on 16 April 2004. The father and Mr S exchanged unfortunate and unseemly words with one another during the time the father was in B between 23 April and 1 May 2004. Whilst the father was in B during this week, the mother returned to D and, again unbeknownst to the father, removed some items of property from the former matrimonial property. Relations between the parties reached a new nadir.
As has previously been indicated, the court dealt with the parties’ interim applications, in respect of arrangements for the care of the children, on 24 May 2004. The mother and children returned to live in D, pending final decision, on 14 June 2004. She was greatly discomforted by the decision. On her return to D the mother obtained rental accommodation for herself in G. Prior to August of 2004 the mother offered the father contact in excess of the alternate weekend contact ordered by the court, including overnight contact on Wednesdays. After August, very little additional contact was offered and the parties stuck to the strict letter of the orders. I suspect that initially the mother hoped that she would be able to persuade the father to allow her to take the children to live with her in B. When his acquiescence did not materialise, her attitude hardened. The father has been consistent in his desire for a shared care arrangement in D.
When the parties arrived in D in January of 2004 they approached the Department of Health and Community Services for assistance in regards to managing R’s difficulties in regards to delayed speech and development. They were referred to the Community Paediatric Team “the CPT”. The CPT consists of a speech pathologist; an occupational therapist; and a physiotherapist. The CPT is overseen by a paediatrician, Dr R D, who assessed R in March of 2004.
In a report dated 8 March 2004, the CPT found as follows:
“R shows relative strengths in gross motor development, visual learning and his responsiveness to gestures and physical prompts and guidance. He learns most easily with repetition in the context of known routines. He is developing some functional self help skills
R is showing significant developmental problems in the areas of communication, social interaction, fine motor, play and thinking skills. In addition, R has difficulties transferring skills learned during routines at home to unfamiliar people and settings. It is encouraging that R’s parents feel that he is becoming more flexible in coping with changes and different people. There is a need for further investigation of sensory processing and integration. R will require use of multisensory strategies for learning across developmental areas. He requires augmentative communication strategies including signing and pictorial cues to support his communication development.
R and his family will need a wide range of supports to assist his development and it is likely that he will have longer term intervention needs. Consideration of R’s overall developmental needs and service requirements is a priority and will be addressed with his parents. Further investigation of any medical factors involved in R’s presentation is recommended.”[5]
[5] see Annexure C to the mother’s affidavit.
The CPT recommended that Dr D continue to be involved in evaluating R’s condition; that the CPT provide R and his family with therapeutic services for a period of six months; and that a specific program be developed for R at the Child Care Centre that he was attending in D. This last recommendation was to assist R developing social skills with his peers.
Since this assessment, R has been attending a speech therapist. R attended weekly during February and March of 2004. This resumed when the mother returned to D in June. In addition, in June of 2004 R was referred to C D S. At present he attends there each Friday morning, during school terms, for about three hours on each occasion, where both he and the parties benefit from the services of a speech pathologist; a psychologist; an occupational therapist; a physiotherapist; and a social worker. He continues to see Dr D on a monthly basis.
It remains a bone of contention between the parties as to the level of the father’s involvement in R’s various medical appointments and therapies. It is the mother’s case that she assumes the dominant role in this regard and makes all the necessary appointments. It is the father’s case that he is either not told about the various appointments or is told at the last minute. At any event, it seems that the father has been attending most of R’s recent appointments at C D S.
The primary purpose of R’s attendance at C is to develop strategies to assist the parties in encouraging R to acquire the appropriate language skills for a child of his age. At present his vocabulary is limited to a few simple words and he communicates mainly by pointing and gestures. R is encouraged to use one of a set of cue card when he wishes to communicate something to one or other of his parents. In this way it is hope that he will develop a connection between the object on the cue card and the word for the object concerned, when his parents use the word involved back to him. To her great credit the mother is currently learning sign language in an attempt to communicate better with R.
R’s behaviour continues at times to be challenging. When he is frustrated he bangs his head continually. He can become highly absorbed in particular things and cannot easily be distracted from them. He does not socialise well with other children and at times prefers to play on his own. His toilet training is incomplete. At present he is attending D Children’s Centre at D between 9.00 am and 3.00 pm each day. At the centre he has the assistance of “an inclusion support worker”. It is the mother’s view that R is showing improvement in his interaction with other children and in his self-help skills. He is now able to dress himself.
M is in good health. She attends a creche and pre-school in D next door to the centre R currently attends. She has the same hours of attendance as R. She is due to commence at primary school shortly. Neither of the parties asserts anything other than that the two children have a close and loving relationship with one another.
The father is currently living at premises situated at 34 P C in D. It is a short drive from the mother’s current home in G. The father has commenced a relationship with T L T. The relationship is described by Ms T as being “a girlfriend/boyfriend relationship”. They met in July of 2004 and have seen each other regularly since August. Ms T has three children of her own aged 13, 10 & 6 years of age.
Since returning to D the mother has experienced some difficulty in supporting herself financially. She has received a parent allowance of about $700.00 per fortnight and child support from the father of about $740.00 per month. In addition she has obtained some part time work, as a shop assistant at B’s the b in P. She has worked at B’s on the weekends when the father has had contact with the children. She has earned about $350.00 per fortnight from this employment, which she has recently ceased. In addition she has worked from her home on a part time basis for an events co-ordinating firm based in Be. Events co-ordinators organise the arrangements for large meetings, promotional launches and the like – booking venues and organising travel and so on and so forth. The mother has worked from home in this capacity using a telephone and computer supplied to her. She is paid $20.00 per hour. It is work she likes.
Mrs S visited the mother in D during October of 2004. In December of 2004 the mother took two visits to B with M and R travelling there between 6 and 17 December and returning again over the actual period of Christmas. She returned in between the two visits so that the father could have his ordered fortnightly contact with the children. Her parents paid for the necessary airfares on each occasion. The orders made on 24 May 2004 did not deal specifically with arrangements for Christmas Day or the holiday period generally. The father did not see the children on Christmas Day. This remains a bone of contention for him and he believes is evidence of the mother’s disregard for his feelings. However, shortly prior to the commencement of the hearing in this matter, the mother permitted the father to have a one-week contact period with the children.
Shortly prior to the commencement of the hearing in this matter, the parties were able to resolve the issues between them regarding the division of their matrimonial property. Their former home at P has been sold and the proceeds divided between the parties. The mother is due to receive a sum slightly in excess of $100,000.00.
Dr D declined to provide an affidavit in respect of these proceedings. As a result he did not provide any formal evidence in the case. He did however provide a brief report to the mother’s solicitor, which was tendered into evidence with the consent of counsel for the father. In this report, Dr D wrote as follows:
“I initially saw R in March of 2004, for paediatric assessment related to his delayed acquisition of speech…There were no physical issues I could elicit which could have contributed to speech delay eg. hearing problems.
In any child of this age, with language delay the question of Autism is always considered. R displayed some autistic features but conversely there were many other features which were against this diagnosis.
R still has very significantly delayed expressive language, with vocabulary of a few words only. His use of language remains irregular. There is a large amount of pre-conversational babble.
R is a child with significant delays in language development. It is possible he will eventually be diagnosed as falling into the autistic spectrum. He will require long periods of support which will increase when he commences school…”
Accordingly, although autism remains a highly likely diagnosis for R’s various difficulties, at this stage no definitive diagnosis has been made.
The father’s proposals
It is the father’s position that he is unable to leave D until, at the earliest, the start of 2007. It is his case that the A will not consider any transfer on compassionate grounds because of the future location of his children and no other posting will be available to him until his present posting in D has been completed. He called no evidence, in the form of a senior officer or from any other source within the A to corroborate this evidence and he was not cross-examined himself in any detail about it. In those circumstances, I accept that it is not currently open to the father to move to B in the next eighteen months to two years.
I have severe reservations as to whether the father will leave the A at the end of his posting to D. He has been a member of the D F for nine years. It is a career he enjoys and for which he is well suited. It seems to me that he is a c s and it is more likely than not that he will attempt to become an o through the special entry scheme in the not so distant future. I also have some reservations as to the father’s assertion that he would regard his career as being unimportant to him until at least the children have left school.
Shortly prior to his posting to D, the father completed a “five-year plan” in respect of his future career in the A. At that stage he indicated to his superiors his desire to become either a q or a c. His preferred postings were B; P; and T; in that order. It would no longer be his first preference to be transferred to B at the conclusion of his D posting. He regards B now as merely being a town in which he once lived and which now holds no special significance for him. Whether his view would be different if M and R were living in B, I do not know, although in his affidavit material the father deposes that he wants to work close to his children. It was also the father’s evidence that there is no guarantee that he would gain any of his preferences on his next posting. It is his case that where he will go after D is very much at the discretion of the A.
The father wishes to have a shared care arrangement for the children in D because he believes that this is the only means by which the children can have a meaningful relationship with both their parents. He believes that the mother and her parents would not be supportive of him having regular contact with the children in the event that they live in B and he remains in D. In this eventuality he is fearful that his current strong relationship with the children will whither away. Certainly he is fearful that neither the mother nor Mr and Mrs S are currently capable of expressing to the children any positive attitude regarding him and in these circumstances the children’s happy memories of him will not be kept alive between irregular periods of contact.
It is his case that the mother has demonstrated a poor attitude to the responsibility of parenthood by unilaterally removing the children to B in April of 2004. In those circumstances, it is his position that the court can have no confidence that the mother will be supportive of the children maintaining their relationship with him in future, particularly if that relationship is tested by distance. He is also concerned that he will be deprived of information concerning the children’s progress at school and their health in this eventuality. Given R’s special needs particularly, this is a matter of great concern to him.
The father concedes that the mother will be disappointed if she is not able to move to B to live. However it was his assessment of her character that she would be able to put aside any bitterness or disappointment she may feel in this eventuality. It was also his evidence that he would give the mother anything he could to support the mother in D with such a shared care arrangement. Whether the mother would be able to so magnanimously put her own feelings behind her and would willingly accept such offers of assistance from the father is an important issue in the case.
The father currently has considerable reservations about the capacity of the mother to cope with the care of the two children concerned. In his words he does not believe that the mother can cope “as a single mother on her own”. In his submission, this follows logically from the fact that the mother, too a large degree, bases her application to live in B on the fact that she will have both actual and emotional support from her parents there. Accordingly it must be the case that she cannot cope alone. In these circumstances, he argues that a shared care arrangement must be the preferable outcome, particularly when he is so willing to offer whatever assistance he can.
The father believes that he is better placed to provide a stable environment and routine for the two children concerned particularly R. He believes that he provides more discipline and set times for the children for such things as meals and bedtimes and as a result they are more settled and happier in his home than in the mother’s. He points to the fact that R at times “strikes out” or has violent tantrums with his mother but is more liable to “obey” him. The father believes that R responds well to him and is making advances in regards to toileting and communication when with him. He believes it would be deleterious for R to loose his father’s regular involvement in day to day aspects of his life. He also believes that the mother does not cope particularly well with the stresses involved with caring for two demanding children, particularly R.
If the shared care arrangement comes about, the father will continue his employment with the A. However, in this eventuality, he believes that he will be able to take on “restrictive” duties. This would mean he could not be deployed overseas and would be able to have shortened working hours during the weeks when the children are with him. He would work from 9.00 am until 3.00 pm and so would be able to deliver and collect the children from either school or creche. He points to the fact that it is a directive to the D F from M-G C that the A is to be “family focussed”. He did not provide me with any specific evidence or documents in this regard. The father also believes that he would be able to take time off from work regularly to attend medical and other appointments as required for R. In this regard he points to the fact that he has regularly been attending at C Disability Services with R on Friday mornings. He believes that he would be able to make up most of his lost working hours, due to his family commitments, in the weeks when the children are in the care of their mother. As has already been indicated, the father would defer his career aspirations for the time being, if the children are placed in shared care.
The father believes that the children’s future interaction with Ms T’s three children is also likely to be a positive factor in M and R’s lives. It is his case that the five children mix well with one another and enjoy each other’s company. The father also believes that neither child has reacted well to the separation of their parents and in these circumstances a shared care arrangement is likely to be the best outcome for them.
The father concedes that it may be the case that he will have to leave D at the start of 2007, if he remains in the A. I do not think that he has fully considered what should happen in respect of arrangements for the care of the children at that stage, if the shared care arrangement is implemented now. He acknowledges that it would be oppressive to expect the mother to follow him to his new posting. He proposes that the issue should be revisited at that stage and it resolution after canvassing the wishes of the children. He concedes that it may well be appropriate at that stage that the mother be permitted to live with the children in B. However he does not formally propose any moratorium on the mother’s departure, along those lines, at this stage.
The mother’s proposals
Clearly it is the mother’s fervent wish that she be allowed to live with the children in B as soon as possible. It is her case that she has provided the vast majority of the care for the children, since the time they were each born, whilst the father has been largely disinterested in them, frequently absent and pre-occupied with pursuing his career. It is her evidence that there was not a significant bond between the father and either of the children, at the time of the parties’ separation and she does not believe that such a bond has developed in the period since.
She does not like D and feels unhappy and unsupported in the town, where she has no close friends and no relatives. Now that the marriage between her and the father has broken down, she wishes to return to the environment with which she is most familiar and where she have the support of her friends and family, particularly her parents, with whom she has a particularly close relationship.
The mother does not accept that a shared parenting regime between her and the father in respect of the children is workable – either in D or anywhere else. In an e-mail she sent to the father in July of 2004 she described the father as a “control freak”. It seems to be her case that the parties do not have a sufficient level of trust in the other’s capacities either as parent or a person and do not have sufficiently developed communication skills to make such a shared parenting regime a viable outcome. It also seems to be her position that the current level of parenting skills between the parties is too disproportionate for such a regime to work. It being her position that her skills are superior and she has done the vast majority of caring for the children both before and after separation.
It is her case that she has been the pre-eminent one of R’s parents in making arrangements for him to receive treatment and assistance for his special needs and that she has been exemplary in seeking out appropriate care for him and assisting him with his difficulties. Whereas, on the other hand, the father has been disinterested in R’s condition and has largely under estimated its gravity.
It is her case that it is highly likely that R will have better access to medical and other facilities in B than he will have if he remains in D. This is likely to be of increasing importance for R, particularly as he reaches school age and has to make the transition to primary school. She deposes that C Disability Services can currently only offer R therapy once per week for a morning. Whereas in B it is likely that R could have such therapy on up to three occasions each week at a similar facility to C. In addition she will be able to access services directly from Autism Q, whereas there is no such society in the N T.
In addition, it is the mother’s case that it is a matter of simple logic that a city of several million inhabitants must be better resourced with medical specialists in all manner of specialties than an isolated city of several thousand inhabitants. Accordingly it is likely to be better for R to live in B where his current difficulties are likely to be more comprehensively diagnosed and treated by a wider range of specialists than in D.
The mother is particularly concerned at the quality of the education R will receive if he attends primary school in D. She deposed that D only has one special school, N S S and it has only 50 places. She is fearful that R will miss out on one of these places. On the other hand, she asserts that there are two primary schools in close proximity to where she proposes to live in B, which have Special Education Development Units “SEDUs” attached to them. SEDUs, as their name implies, provide support to children, such as R, who have special needs. The mother asserts that R’s special needs in regards to education are likely to be better catered for in B than in D.
The mother’s sister L is a teacher. She has just returned from the U K where she has been specialising in teaching children with special needs, including autism. She will be living in B, close to Mr and Mrs S and so able to assist the mother in caring for R. She knows the sign language, which both the mother and R are currently learning.
It is the mother’s position that there are significant financial benefits available to her if she is able to move to B. At present, in D, she is living in rented accommodation and is in receipt of a parenting allowance. She also receives child support from the father. She has augmented her income by part time work as a bakery assistant at B’s and by doing events co-ordination from her home for a firm based in B. However her ability to do events co-ordination from D is limited by her isolation from her employer’s office in B.
In the event of her living in B with the children, the mother anticipates that she will be able to acquire more part time events co-ordination work with the firm for which she is currently working. She believes that she will be able to work for up to three days each week, working between 25 and 35 hours per week. She would be able to do much of her work at home and so able to organise her work around the children’s requirements but would also be able to attend her office regularly. In addition, her mother, Mrs S, who also works part time, would be able to assist with the care of the children, on those occasions when she had to go to the office. If the mother is able to engage in such work she believes she and so the children will be better off financially in the long run and less dependent on social security payments. As has already been indicated, the mother enjoys this kind of work.
The mother asserts that M has expressed a clear preference to her to live in B and is anxious to live closer to her maternal grandparents. It is a strong element of the mother’s case that the children will benefit from spending more time with their maternal grandparents, with whom they have a particularly close relationship, which developed whilst the children lived in B and in particular during the times the children lived in Mr and Mrs S’s home prior to their move to D and whilst the mother was in B between April and June of 2004.
The mother’s plan, in the event that she and the children are living in B in the near future, is to look for a house to rent in P, the suburb of B where she grew up and her parents continue to live. She describes P as providing a “nice” environment for children to grow up in. In the long-term, when she is more financially established, she wishes to buy a house for herself in P. She has no plans to move from the P area or B in the foreseeable future. It is her case that she is not currently involved in a serious relationship with anyone, certainly not with Mr M.
The mother acknowledges that she needs support from her parents from time to time to parent M and R. She does not see this as a weakness of her parenting, as the father does. To the contrary she sees the role played by Mr and Mrs S as augmenting her parenting, particularly in times of emergency. In the past, when R has been hospitalised, Mrs S travelled to D to assist the mother in caring for M. The mother believes that it is inevitable that she will require such help in the future. By implication it would seem to be her case that she would prefer to seek such assistance from her mother rather than from the father. Accordingly she believes that it will be an advantage, in future, if she is living in close proximity to her parents, as they will be readily accessible to provide such assistance to her. If she remains in D, either she or her parents will have to bear the considerable expense of them flying between B and D when such help is required in future.
In the event that she is living in B with the children, the mother proposes that the father have contact to them in B during school holidays. It is her position that at least until R has turned six years of age, the children will not be a position to travel unaccompanied by air between B and D. Even after R has turned six, it will remain problematic as to whether he will be able to travel unaccompanied by air because of the likely delays in his development. Accordingly it is her position that it is more practical for the father to travel to where the children are, rather than vice versa. Neither party has provided particularly explicit details as to how the costs of contact are to be arranged in future if the children do relocate. In closing submissions, counsel for the mother indicated her client’s willingness to pay for half of the costs of contact. Mr and Mrs S have paid for the mother and children to travel between D and B and return on the three occasions the children have travelled from D since the parties separated.
Finally and most importantly, it is the mother’s case that she will be much happier if she is able to live in B in future, where she will be in control of her own destiny. She believes this will have an impact on her ability to parent the children. If she was not able to leave D in the near future but was compelled to remain living here, either indefinitely or for a finite period of time, her evidence was that she would accept such an outcome but would be “unhappy and devastated” by it. She would feel that she was living her life in “limbo, cut off from family and friends”. She would feel particularly aggrieved if she could be “uprooted again at the whim of the A of S” at the beginning of 2007, when the father completes his posting to D. However it is not the mother’s case that she would suffer any direct psychological or psychiatric harm as a result of such an outcome. Certainly she has provided no medical evidence to this effect.
The Issues
The central issues, which are not listed with any degree of priority and which require resolution in this case appear to me to be as follows:
·Is the evidence sufficient for me to conclude that R’s special needs are more likely to be better met in D or B?
·What is the current state of relations between the parties themselves and the father and Mr and Mrs S? If poor, are those relations likely to improve in the future? What are the implications of those relations on the capacity of each of the parties to properly parent the children?
·Given any applicable findings in respect of the relations between the parties is it likely that a shared care arrangement will be a workable outcome for the care of the children in future?
·What is the mother’s likely response to a decision that she must stay in D, either indefinitely or for a finite period of time? Will this reaction have any implications for her ability to properly parent the children?
·In the eventuality of the children living in B and the father remaining in D, will the children be able to maintain a sufficient level of relationship with him through telephone and school holiday contact? What are the implications of the children’s ages and level of cognitive development and of R’s special needs in this regard?
·Given the children’s tender ages and the uncertainty of the father’s working arrangements after early 2007, is a moratorium on the mother leaving D with the children an appropriate outcome?
·Is the father controlling and aggressive as the mother alleges?
·Has the mother little regard for the father’s role in the lives of the children and a poor attitude to the responsibility of being a parent, as he alleges?
·As the father attacks the credibility of the mother on the basis that she has lied about her relationship with Mr M, it will be necessary to outline the parties’ contrary views about the nature of this relationship and make some findings of fact about the circumstances surrounding the parties separation in April of 2004.
·Finally and most importantly it will be necessary to compare and contrast the strengths and weaknesses of the parties’ competing proposals to arrive at the outcome that is likely to be in M and R’s best interests.
The Evidence
The hearing of this matter took place in D on 13,14 and 28 January 2005. Both parties were represented by counsel. The father relied on the following affidavits of evidence:
i)An affidavit of himself filed 19 November 2004;
ii)An affidavit of T T filed 7 January 2005.
Of these witnesses only the father himself was cross-examined by counsel for the mother.
The mother relied on the following affidavits of evidence:
iii)An affidavit of herself filed 4 November 2004;
iv)An affidavit of her parents C and B S filed 5 November 2004;
v)An affidavit of D M filed 30 November 2004;
vi)An affidavit of a social worker, J McK filed 4 November 2004.
All these witness, apart from Ms McK were required for cross-examination. In addition, the family report writer Ms M was required for cross-examination and was cross-examined by counsel for each of the parties.
(a) The parties themselves
I found both parties to be genuine and honest witnesses. It was obvious to me that they both love M and R very much indeed and each believes that the position, which he or she has adopted in these proceedings, is the one best suited to achieving the children’s best interests. Certainly I do not think that the mother wishes to move to B out of any feelings of spite she may feel for the father and similarly I believe that the father wishes the shared care arrangement to be implemented because he genuinely believes that this will be the best outcome for the children not because he wishes to frustrate the mother’s ambitions.
However the parties are quite different people by way temperament and disposition. As a result, they each have a different approach to the responsibility of being a parent. The father is a c s, who places great importance on self-discipline and self-reliance. He is proud that he has an ability to “make the best of a situation”. In my assessment, the father has a strong and forceful personality. On the other hand, he describes the mother as being “a bit naïve” and susceptible to what he describes as “stress”. By which I take it he believes that the mother is not as well able to stand on her own two feet as he is. Certainly, in his evidence, he indicated his view that the mother had “never really cut the apron strings” and should have given “D more of a try”.
By disposition the mother is very family orientated. I have no doubt that she is not as emotionally resilient as the father is. As a result, now that her marriage has come to an end, she is very dependent on her parents for emotional support and encouragement. The mother indicated that she had not made any real friends in D in the period since she has lived in the town, as she found it difficult to “push herself forward”. Certainly she has not maintained any connections with the m. I accept that she feels unhappy and isolated in D.
The main focus of the mother’s life is her relationship with the children and with her parents and other family members. I have no difficulty in reaching the conclusion that she is an insightful and dedicated parent. I was particularly impressed with her efforts to seek out the best support for R’s special needs. I do not think that she can be criticised for seeking support from her parents when she was newly arrived in D and was confronted with a seriously ill child, who required hospitalisation. Whatever the outcome of these proceedings, the mother will continue to rely on the emotional and actual support of her parents, with whom she enjoys a close relationship. It is a telling factor that the father and mother chose to live with Mr and Mrs S in the months prior to the family’s relocation to D and before that the parties’ first home was purchased in P, no doubt so that the mother could live in close proximity to her parents. In my view, these matters speak of the closeness of the relationship between the mother and her parents. At this point the mother is more amenable to seeking support from her parents in regards to the children than she is from the father. This is a situation that is likely to continue for some time to come.
It is the mother’s case that she has provided the over-whelming majority of the day to day physical care for both children since the time of their respective births. This is undoubtedly true and is an important factor in the overall disposition of this case. Since the birth of M the mother has devoted herself to caring for the children and has made her other employment subservient to this role. The father was content to leave the care of the children to her, particularly when he was on active service in E T and then the S I. The parties mutually decided that the father would continue in the full-time workforce and the mother would provide for the children. Neither is to be criticised for this decision.
Although the father was engaged in full time work in the early years of both children and was away from home from time to time, I accept that he interacted with both children whenever he could, particularly after work and on weekends. However it is clear to me that the most significant person in the children’s lives up to this stage has been the mother.
The mother struck me as being very protective of both the children and her role as the main provider of their care. At this stage she seemed me to be extremely reluctant to devolve any great responsibility for the care of the children onto anyone other than professional caregivers or her parents. Certainly she is suspicious of the father’s abilities as a parent and believes she has both more “hands-on” experience and greater insight into the role than the father has. She is sceptical about his currently professed wish to be more closely involved in their care and believes that he must have some ulterior motivation in this regard. It is her view that in the past he has displayed very little interest in the children and has been more interested in pursuing his career, a situation she believes is unlikely to change.
The father described himself as “a good parent”. I have no doubt that he is. He somewhat begrudgingly conceded that the mother had been “a good mother” when the family had been living in B but things had gone “downhill” when the family arrived in D. Accordingly neither parent gives what could be described as a ringing endorsement of the other’s abilities as a parent.
The father places great emphasis on the routine he provides the children when they are with him and the stability of his home environment. It seems to be the father’s assessment that he is a better parent than the mother is because he more self-reliant and disciplined than she is. Certainly, it seems to be his position that R responds to his parenting better than he does to the mother’s. I believe that it is simplistic to consider the matter in such terms. In my view there is nothing in the evidence to indicate anything other than that both parents can adequately meet the physical and emotional needs of both of the children on a day to day basis. However they are likely to approach the role in different ways according to the differences in their personalities and attributes.
There can be no doubt that these proceedings and the circumstances surrounding the parties’ separation have occasioned a high degree of suspicion and mistrust between the parties. As a result there have been several “flashpoints” where these tensions have come to the fore. Inevitably the parties each view the events surrounding these circumstances through a distorting prism of hostility for the other. These observations apply equally to the respective views of the parties in regards to the stance adopted by the other in these proceedings and his or her proposals for the future care of the children. At this stage each party has attempted to emphasis the negative aspects of the other’s personality and can see little good in him or her as a parent.
It is the father’s position that it can be deduced from the mother and her family’s behaviour towards him in the period since the parties separated that they are intent on “freezing” him out of having any meaningful degree of involvement in M and R’s lives. Therefore the court can have no confidence that she will adhere to any future contact orders, particularly if the children are living far away from him in B. In these circumstances, he believes that it is inevitable that his currently strong relationship with the children will only wither and diminish if they move to B. At best he can only be a “holiday dad”. As a result he believes that the only workable outcome in the case is a shared care arrangement in D. His case can be summarised by something he said in his evidence, namely “why cut out a good parent from the lives of the children?”
It is his case that the mother’s negative attitude toward him and his ongoing relationship with the children can be encapsulated by a number of specific incidents, namely her decision to unilaterally relocate the children to Q in April of 2004; her controlling attitude towards contact; and her reluctance to allow him to have access to information regarding R’s medical condition. It will be necessary to make some findings about these matters.
Prior to the parties’ separation the mother had the vast majority of responsibility for providing for the children’s daily needs. In the past, during the parties’ marriage, the father was content to leave very many of these matters to her whilst he pursued his career and provided financially for the family. After separation the mother has continued to seize on her authority as M and R’s primary carer to establish what she believes are appropriate parameters for their care. The father has wanted to pursue a more active role in the children’s lives and has felt shut out from them by the mother, particularly in light of her desire to move the children to Q.
I do not consider that the father can be considered a disinterested parent, either in the period before separation or afterwards. However, since separation, he has wished to move at a much faster pace than the mother in respect of all manner of contact arrangement in respect of the children. This is not an uncommon situation. In the changed circumstances which have prevailed since the parties separated, he, like many other separated parents, is anxious to make up “lost time” in respect of his parenting of M and R as quickly as possible. Too a large extent this is inevitable given that the children now have parents who live in and operate separate households. I can well understand why, in the circumstances of this case, the father is anxious to expand his role with both children. However, in the atmosphere of suspicion that has prevailed between the parties, heightened by the mother’s wish to relocate, the parties have not had a ready facility to discuss these matters with one another.
The parties utilised a significant proportion of their affidavit material dealing with the circumstances surrounding their separation and exploring the issue of the mother’s relationship with Mr M. It is the father’s case that, both before and after the parties separated, the mother was involved in a clandestine and intimate relationship with Mr M. Both the mother and Mr M deny that this is the case. The father asserts that the mother is lying about her relationship with Mr M and therefore is to be regarded generally as an unreliable and disingenuous person, whose evidence and assurances to the court should not be accepted.
At the outset I point out to the parties my view that the circumstances surrounding their separation were traumatic and painful for them both. The consequences of these events continue to reverberate for each of them to this day. It is also my view that it was extremely regrettable that the parties chose to spend so much time on this issue. During the course of the hearing, I pointed out to the parties that the question of perceived matrimonial fault was no longer a determinative matter so far as care arrangements for children were concerned. However it is the father’s position that the issue goes squarely to the mother’s credit.
It is the mother’s position, supported by Mr M, that her relationship with him is a purely innocent one based on friendship and the provision of mutual emotional support. Clearly the father does not believe this assertion. In support of his position the father put a number of pieces of private correspondence, which had passed between the wife and Mr M to the mother. It subsequently transpired that this correspondence had largely been given to him by Mr M’s estranged wife. The mother acknowledged that she had written the correspondence. Clearly she did not consent to it having come into the hands of the father. The father did not allude to the correspondence in his formal affidavit of evidence. It was obvious to me that it was embarrassing and humiliating for the mother to have to deal with the correspondence in her cross-examination.
In my assessment, it is not necessary for me to make any findings of fact in regards to this issue, which has little relevance to the central issues in this case. In particular I do not accept the father’s assertion that because a person lies about his or her personal life it is likely that such a person will lie about other matters. I can understand why the mother would have some reticence about discussing matters to do with her personal life both with the father and in public. It does not cause me to question my overall assessment that she is a reliable witness. The father attempted to entrap the mother with these letters and in my view his use of her private correspondence in this way does him no great credit. Contrary perhaps to his expectation, the emphasis the father gave to this issue caused me to reach the conclusion that he has not fully come to terms with the end of his relationship with the mother. He must have known that to raise the issue in this way would be extremely embarrassing for her. It also caused me to have severe reservations about whether the parties will ever have sufficient trust and confidence in one another to make a shared parenting arrangement in respect of M and R a viable outcome. Certainly this issue must represent a significant barrier for the parties working and communicating effectively together in the foreseeable future.
The mother is a capable parent. I accept that she will manage the proposed transition of the children from D to B with a minimum degree of trauma. Undoubtedly Mr and Mrs S will provide a high degree of support in this regard. It can hardly be said that the children are going into the unknown by returning to B. I accept the mother’s assurance that she will take steps to maintain the father’s presence in the children’s lives in their changed environment. Certainly I do not think that the mother will attempt to negate the father’s influence in either M or R’s lives or try to recreate him as some sort of sinister and distant figure. Accordingly I do not believe that it can be said that M is at risk of loosing her relationship with her father, although it is likely to be different.
In my view M is just as likely to grow up happily and healthily in B as in D. In my view, it is impossible to assess in any real quantifiable way how different M’s life will be if she grows up in either D or B in the future. The mother has been the most important influence in her life to date and the continuity of that involvement is likely to be the most important influence on M’s growth and development.
On any view, R’s relationship with his father is far less resilient than M’s is. He is younger and is likely to have significant special needs for some time to come. He cannot maintain any form of contact with his father via the telephone. He will cope easily with the transition to B but his relationship with his father, as a result, may seriously decline to a very low or even non-existent level. These are grave considerations. Again in my view it is impossible to accurately quantify the consequences of this for R in the long term. However in the short term he will remain in the care of his mother, with whom he shares the most significant relationship in his life. In sustaining this relationship she has provided exemplary care for him up to this stage. At the centre of this case is the need to balance the consequences to R of having his relationship with his father seriously compromised in both the short and long term with the detriment which is likely to be caused to his mother’s ability to continue to provide such a high level of both physical and emotional care for him. In this regard I accept Ms M’ assessment that there will be significant flow-on effects for the mother’s capacity to effectively parent both children, but particularly R if she is forced to live in D for any significant period of time. It is not an easy balance to find.
The mother has said she would be “devastated” at the prospect of staying in D any longer than is absolutely necessary. The father puts much emphasis on the fact that the mother also said she would accept such a result. The mother, apart from appealing such a decision or contemplating another application to the court, could hardly do anything other than accept the decision as an unpalatable feature of her life, perhaps analogous to an unpleasant but incurable disease that had struck her down. But it is long way from that emotion to magnanimous resolution. The mother, in my assessment, is unlikely to reach such a state of magnanimity. She will feel bitter, isolated and unhappy. Emotions which are likely to turn to feelings of ever increasing resentment towards the father, whom she can only feel is her gaoler in an unhappy prison.
The mother has no long term connections with D and in such circumstances does not seem to me to be the sort of person who, in adversity, is likely to seek them out. The mother’s major emotional alignments are with her parents and friends, all of whom live in B. B is home for the mother in a way D never will be. I accept the mother’s description that she would feel like she was in limbo if she was forced to continue to live in D. It is the father’s case that the mother overstates her case and the reality is that with help from him, which he will happily provide, she will be able to overcome her disappointment and in time recover her emotional equilibrium. In essence that both he and she will be able to put past difference and disappointments behind them and work together to achieve the best outcome for the children.
Sadly I think that the father is naïve to believe that, in the event the mother is restrained indefinitely in D, she will be able to work with him in a shared parenting regime for the children. The parties do not have a ready facility to communicate with one another. Their relationship is flavoured by mistrust and hostility. They have no prior history of sharing the care of the children. Currently they have little respect for one another, either as parents or people. In my view it is unreasonable for the father to wish to detain the mother in D to work compulsorily in his preferred but as yet totally untested method of parenting M and R. The most likely outcome of such a result is an escalation of tension between the parties, which will rebound on the children themselves. I agree with Ms M’ assessment that such an outcome would not be a desirable outcome.
There remain other outcomes short of shared parenting that would see the mother and children remain in D. The children could continue to live predominantly with the mother but regularly see the father on weekends and overnight on some occasions during the school week. The benefit of this outcome would be that the children would have an on-going sense of involvement of their father in their lives but the mother would remain the major influence in M and R’s lives. However, in my view the positives continue to outweigh the negatives.
As did Ms M, I consider the most significant feature of this case to be that the mother has been the undisputed major source of physical and emotional well being for both children. However she is not an emotionally resilient or adaptable person. I have therefore no doubt that she would be gravely disappointed and frustrated at not being able to leave D as she plans. I believe that the sadness and frustration she will feel in such a situation are likely to have significant consequences for her parenting. The mother will feel isolated in D and, in her isolation, is unlikely to turn to the father, the cause of her problems, for help. R is likely to provide great challenges for even the most well equipped parent. I think it would be simplistic for me to consider that he mother’s feelings of disappointment and perhaps even despair at being trapped in D would not have seriously adverse consequences for her ability to parent both M and R to the maximum extent of her abilities.
It is a strong part of the father’s case that the mother has “problems as a single parent”. I think “problems” is probably an overstatement. It is not easy to parent in a vacuum, particularly a child such as R. The father put himself forward as the solution to these perceived problems. Sadly the restrictions the father wishes to place on the mother’s life plans inevitably will make for more rather than less resentment between the parties. The mother wishes to go to B where she believes she will get the help she needs as a single parent. If she cannot get this help in B, I believe she is unlikely to turn happily to the father in D for it. It is a tired but true aphorism that “a horse can be led to water but cannot be made to drink”. As a result I have no doubt that the mother will be an unsupported and isolated parent in D. She will be unhappy and bitter. This cannot be a good outcome for either M or R. It would require the most magnanimous of people not to feel some sort of resentment for the father, the author of these serious restrictions on her life plans and aspirations. I am not as confident as the father that the mother has such qualities of magnanimity. I have reached the conclusion that the mother will be a poorer parent in D than she would be in B. As she has been the children’s primary provider of care up to this stage, this is a most important consideration.
In between the parties’ preferred outcomes is the option of a moratorium on the mother’s departure, perhaps to coincide with the end of the father’s posting in D. Such an outcome would be marginally more preferable to the mother than an indefinite restriction on her moving away from D. To use the analogy, as a prisoner she would at least have the benefit of a release date. However, I do not think that such an outcome would reduce the high level of bitterness she is likely to feel at having her plans frustrated. In the short term, this frustration is likely to lead to more rather than less flashpoints in the parties’ relationship. I also have concerns that the parties are unlikely to have the resources to deal with the situation as the moratorium approaches its end. I consider it unlikely that the father would meekly consent to the mother’s relocation at this stage. The next one to two years would be permeated with uncertainty. In my view, there is much to be said for the relocation happening sooner rather later, if indeed it is to occur.
Clearly, the major advantage of a moratorium of approximately two years is that it would allow the relationship between the father, M and particularly R to solidify and become firmly established. In addition the extent of R’s special needs may be better known. These benefits must be balanced against the possible detrimental consequences for M and R. I accept R’s relationship with his father is vulnerable to the distance of the mother’s proposed relocation. However such a moratorium would also have consequences for the mother and be unsettling for the children themselves. After careful consideration, I have decided that I should accept Ms M’ view that the negatives of such a moratorium outweigh it positives.
I consider that the mother and her family will be encouraging of the children continuing their relationship with their father in the eventuality that M and R live in B. In particular I do not accept the father’s assertion that the mother is likely not to comply with future orders for contact. Although, as I have already found, I consider that there is considerable bad blood between the paternal and maternal aspects of M and R’s family, I do not believe that either the mother or Mr and Mrs S would openly defy orders for contact once made. The mother has demonstrated acceptance, perhaps begrudgingly, of the central role the father occupies in the children’s lives. I also accept that she would take steps to keep the father’s spirit alive for the children within their home by encouraging appropriate tokens of remembrance of him, such as photographs and other recollections.
d) The practical difficulties associated with contact
Obviously there are no problems with M and R maintaining their relationship with both their parents in the event that the mother continues to live in D. This is the father’s preferred outcome. However if she moves to B with the children there will be considerable practical and financial implications involved. In those circumstances the father seeks to have contact to the children during each of the major school holidays for as long as possible. He proposes that the children come to where he is living at the time.
At this stage the mother advocates that the father have contact to the children for periods of only up to a week at a time with the proviso that such contact take place in B until R reaches six years of age. Thereafter she proposes more standard orders for contact. Her rationale for such a proposal is that R is likely to become anxious if separated from her for more than a week. A sentiment which received some limited support from Ms M, who considered that being away from his mother for a period longer than a week would put R “under some duress”. However she also considered that some consideration had to be given to practical realities and indicated her view that a period of up to a month’s separation would not be unduly unsettling and confusing for children of M and R’s ages.
The mother is also greatly concerned at the consequence of either child concerned travelling unaccompanied by air. Although obviously, as her own conduct demonstrates, she has no such difficulty in the children travelling by air with her. I think the mother’s position is unduly restrictive. Ms M believes that it is essential for the children’s sense of well being for them to have frequent and regular contact with their father. It seems to me that this optimal level of contact is less likely to occur if undue restrictions are placed on it. I do not think that a period of one week or contact at times “to be agreed between the parties” is sufficient for the children in the circumstances of this case. Although the father has family and friends who live in B, I can understand why he would want the children to spend time with him in his home environment.
Accordingly it seems to me that although there are considerable financial and practical implications involved, in order to maintain the children’s right to have regular contact with their father, in the event they live in B, it will be necessary for the children to travel to the father’s home on up to four occasions each year. This high level of contact is the necessary corollary of the vulnerable nature of the relationship between the father and the children, particularly R. The only practical way this can occur is for the children to travel by air. Little evidence was provided as to the likely cost of this. I accept it will be an expensive exercise. In the past, the mother has shown an ability to secure cheap fares by booking in advance. I hope she will be able to do this in future.
Neither party can be described as financially well off. One of the reasons the mother wishes to live in B is her belief that she will be better off financially there because she will have access to greater job opportunities. She has offered to pay half the costs of the children’s travel costs for contact. In all the circumstances of this case this seems to me to be an equitable outcome. However if she wishes for the children to be accompanied on any particular flight, it seems to me that she should pay for this arrangement.
In my view the circumstances of this case dictate that there should be as much contact as possible. This is so because of the vulnerability of the relationship between the children and their father. R will not be able to maintain his relationship with his father through the mechanism of the telephone. Ms M believes that contact between him and his father should increase, as he grows older. M is better placed to consolidate her relationship with her father through the telephone and other means of communications such as letters.
However I do not think the desirability of the children having regular contact with their father is such that the mother should be restrained from removing them from the D area. Although it is not the perfect arrangement, contact on up to four occasions each year will provide a mechanism for the children to maintain their relationship with the father.
e) The capacity of each parent to meet the children’s needs, including emotional and intellectual needs
h) The attitude to the children and the responsibilities of parenthood
These criteria are so closely linked that it is convenient to consider them together. I have already indicated my view that both parties have shown themselves to be committed to what they consider are likely to be M and R’s best interests. However, in my view, it is clearly the case that the mother has had a significantly greater degree of involvement in the children’s lives both before and after separation. She has shown herself to be an exemplary parent in this regard. In particular she has shown herself to be dedicated to R and securing the best care and advice for him.
R is currently confronted by all manner of difficulties. As Dr D indicates, his transition to school is likely to be particularly problematic. The mother has sought out appropriate help for R in this regard and has shown herself to be committed to securing the best outcomes for him from this help. She has learnt how to sign and has been the major factor in ensuring that R attends at C D S and other facilities regularly. She has assimilated the advice she has been given and has followed it. The father has played a subsidiary role in this regard. I have no doubt that both before and after separation the mother has been the major instigator in finding such appropriate professional help for R. This is a major factor in this case. I believe that the mother will continue to do her upmost in this regard for R if and when she returns to live in B.
The mother believes that she will be better placed to cater for R’s needs if she lives with him in B. I believe that I would be imprudent if I disregarded the mother’s view in this regard. In any event, for reasons already provided, I believe that if the mother is happy and content, she is more likely to be proactive in pursuing parenting and care options for not only R but also M.
In this regard, I think that the mother will be better placed, to a marked degree, to meet the emotional and intellectual needs of both children in B as opposed to D. The mother will be far happier in B. She will have the support of her parents in B. She will feel at home in B. She will be a cheerful and optimistic parent rather than an angry and resentful one. Simply the fact that she believes R’s needs will be better managed in B than D is an important factor in this regard. Currently the mother can see little good for either M or R of them remaining in D. She is unlikely to change her attitude in this regard.
It is the father’s case that the mother has consistently shown a poor attitude to the responsibilities of being a parent. I agree the mother behaved inappropriately when she unilaterally removed the children to B in April of 2004. She has also at times displayed a marked antipathy to the father playing a constructive role in R’s treatment by failing to convey necessary information to him about it. In this regard, in her evidence, she displayed something of a self-righteous attitude when she said: “no-body spoon feeds me information [about R’s condition and treatment]”. The implication being that she expects the father to be more proactive in this regard. Certainly it is her view that she has borne almost the entire, if not all of the burden, of seeking out treatment for R and resents what she believes is the father’s apathy in this regard.
I accept that the mother has assumed the lion’s share of responsibility for managing R’s special needs. Too a large degree the father has been content to leave this responsibility to her. The mother probably could have done better in involving the father in this aspect of R’s care but it is somewhat churlish of him now to attribute all the blame to her in these circumstances, particularly when I accept that he has been rude to the mother on the telephone in the past. Again all these are matters which point to the communication problems of the parties and their present lack of compatibility.
A major part of the responsibility of being a parent is to encourage an appropriate and loving relationship between the children and the other parent concerned. The father is highly critical of the mother in this regard. It is his position that the court can have no confidence that the mother would actively promote a positive relationship between him and the children in the event of their moving to B with her.
As I have already indicated it is my view that there is certainly no love lost between the mother and the father and certainly between the father and Mr and Mrs S. This is a situation which is likely to continue whatever is the outcome of these proceedings. However I do not think that this necessarily must mean that the mother will be dismissive of the children’s need to have a significant relationship with their father in future. I do not think she will attempt to erase the father from the children’s memories. Since she returned to D in June, contact has occurred as ordered. In the eventuality of her living in B with the children I do not believe that the mother will ignore these important responsibilities of parenthood.
f) The children’s maturity, sex, background and other characteristics
Clearly consideration of R’s age and other developmental attributes are central to the court’s deliberations in this case. I have reached the conclusion that the mother is better placed than the father to deal with R’s special needs in the future. She is clearly very sensitive to R’s needs and has given much thought as to where he will receive the best care for them. As I say, I consider her to be an exemplary parent in this regard. These are factors that favour the mother’s proposals. If I consider that the mother is the parent better placed to provide a residence for the children, I am not then entitled to conduct a further hearing as to whether or not a relocation should be “permitted or not”.
g) The need to protect the children from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
i) Any family violence involving the children or a member of the children’s family
j) Any family violence order that applies to the children or a member of the children’s family
These various criteria are not generally relevant to the court’s deliberations in this case. In particular I do not accept that the father is an inherently violent or controlling person.
k) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parents’ circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospects of parties seeking further orders from the court in future. This is because litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.
One of the major disadvantages of the moratorium is that attached to it is the high probability of further litigation between the parties, as the moratorium approaches its completion date. If the mother does not obtain her wish and is compelled to remain living in D against her will, she will be rendered frustrated and dissatisfied. This too is likely to lead to further disputes and so litigation.
On the other hand, in the eventuality of a relocation, if there are difficulties with the father having contact to the children, this also is likely to lead to more litigation. Although it is trite to point it out, the future in this case cannot be predicted, other than the parties’ relationship is likely to remain problematic. The mistrust between the parties accentuated by their separation and the mother’s wish to relocate makes the possibility of further litigation a definite possibility whatever is the outcome.
l) any other fact or circumstance the court thinks is relevant
It is a major plank of the mother’s case that her and the children’s relocation to B will provide them with greater financial security. In B she will be able to pursue her chosen career as an events coordinator. Whereas in D she will be largely limited to receiving social security and performing unsatisfying part-time work. In addition, in B, she will have the assistance of her parents in providing childcare for M and R whilst she works.
The mother’s aspirations to be an events coordinator are modest. However I accept that she is largely precluded from pursuing this line of work in D. The mother is likely to be much happier if she can pursue her aspirations in B rather than have to do other work she finds unsatisfactory in D. I consider that the mother has a better chance of being financially independent, in the sense of being less dependent on Social Security, in B than in D. It is only common sense that a worker, who is employed in work which he or she has chosen and in which he or she has an interest, will be much happier than a person who is doing some sort of work under sufferance. In my view this is an important factor which favours the mother’s proposal for immediate relocation. It will have consequences for her own personal sense of happiness and fulfilment and so have ramifications for her abilities to parent M and R to the full extent of her capabilities.
Conclusions
As will be apparent from these reasons for judgment, I have not found this to be an easy case. Both parties’ proposals have disadvantages as well as advantages. In the end it is necessary to attempt to weigh up the various factors and so focus on what I believe is likely to be the best result for M and R.
As I have already pointed, one of the primary purposes of the Family Law Act is to allow the parties to a relationship to disentangle their affairs and resume their lives independently of one another on the end of the relationship between them. This principle has equal application in the event that those parties are also the parents of a child. There is no principle of law that the parents of children are required to live indefinitely in close proximity to one another, in order to maintain a situation which will ensure the optimum level of contact between both parents and the child or children concerned. Such a principle would unduly infringe the other parent’s entitlement to live freely as he or she chooses. However, in determining an issue of relocation, although the best interest of the child or children concerned remain the paramount consideration, those interests must be set against the reasonable expectation of a parent that, as a citizen of a democratic nation, he or she will be free to live how and where he or she chooses.
The mother has been the most important feature of both M and R’s lives up to this point. She has provided exemplary care for them. As a result, I have reached the conclusion that she is the parent best placed to provide a residence for the children for the foreseeable future. The father’s proposals for shared care are untested and in my view, because of the high level of tension between the parties, currently unworkable. It is an error of principle to dissect cases such as this one into discrete issues regarding residence on the one hand and relocation on the other. Accordingly the mother’s pre-eminence in providing a residence for M and R is the most significant factor in this case. As a result, on balance and despite the unfortunate consequence of severely limiting M and R’s future contact with their father, I have concluded that the likely positives for the children, particularly in allowing the mother to pursue her own destiny and live and work where she chooses, outweighs the negatives for them.
The mother’s reasons for wishing to move are reasonable and understandable. She came to D only because of her relationship with the father. Now that relationship has come to an end she has no reason to remain in the town, which is devoid of personal attraction for her. Apart from the children, the most important influences in her life are in B. She wishes to live close to her family and friends. Given that she is the most significant person in M and R’s lives, her own sense of happiness and fulfilment in life are likely to have ramifications for her ability to care for the children in the long run. If the mother is not allowed to relocate M and R to B, she is likely to feel that she is a prisoner in D and the father is her gaoler. It is hardly an arrangement that is conducive to positive or confident parenting. She is not an emotionally resilient parent and is unlikely to turn to the father for support. Inevitably I believe she will feel isolated in D and her parenting will suffer.
In such circumstances, it seems to me to be untenable to restrain the mother from moving from D, either indefinitely or for the next two years, in order to allow the father to achieve what he is believes is the preferred parenting arrangement. An arrangement to which he believes the mother will become resiled in time. For reasons provided, although possibly the optimal outcome, I do not believe a shared parenting regime is an achievable outcome in this case and the price of conducting such an experiment will be too high for both the children and the mother. In addition, I doubt that the mother would ever become resiled to such an outcome.
Although I have reached this conclusion, such an outcome is far from problematic for M and R in particular. However I accept Ms M’ assessment that both parties have sufficient insight to ensure that the relocation is sensitively handled from the perspective of both children. I consider that both parties will do their upmost to ensure that the relationship between M, R and the father is maintained as best as it can be. I have no reason to believe that, despite her antipathy for the father, the mother will not honour any orders for contact, once made. Thus I have concluded that the best interests of both children will be better served by making orders allowing the mother to take the children to live with her in B than by orders preventing her from doing so.
This is a heart-breakingly difficult case. At the end of the day, I have concluded that it is not likely to be in either M or R’s best interests to compel the mother to continue to live in D where she will undoubtedly fret and chafe against bonds which she feels the father has imposed upon her. I cannot ignore her legitimate expectations that, although she is M and R’s residence providing parent, she is nonetheless entitled to pursue her plans as and where she chooses. In support of her plans she need no provide any compelling reasons. In a speech delivered to the International Association of Youth and Family Judges and Magistrates Sixteenth World Congress in Melbourne on the 27th of October 2002, His Honour Justice Kirby, when speaking of the AMS decision said as follows:
“I think it fair to say that, at least with respect to relocation cases within Australia, the weight of the majority opinion of the High Court was in favour of recognising that relocation orders should be more readily allowed, at least when compared with applications to take a child to another country.”[34]
[34] Quoted in Zelandonii & White judgment of the Full Court of the Family Court (Nicholson CJ, Kay and Brown JJ) delivered the 5th of March 2003 at page 19
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 four (284) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: J COMMINS
Date: 7 February 2005
0
2
0