McDonald and Leach
[2016] FCCA 766
•11 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCDONALD & LEACH | [2016] FCCA 766 |
| Catchwords: FAMILY LAW – Children – with whom a child lives – relocation – mother would like to move interstate with the children for work and personal reasons – father objects to this move – mother’s reputation at current residence is tainted – mother has obtained accommodation and employment in new location – best interests of children to move to new location. |
| Legislation: Family Law Act 1975 (Cth) s.60CC |
| Cases cited: Clement & Clement [2014] FCCA 1664 Taylor & Barker [2007] FamCA 1246 U & U [2002] HCA 36; (2002) FLC 93-112 |
| Applicant: | MR MCDONALD |
| Respondent: | MS LEACH |
| File Number: | SYC 7877 of 2010 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 17, 18, 19 February 2016 |
| Date of Last Submission: | 19 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smith |
| Solicitors for the Applicant: | Susan Green Solicitor |
| Counsel for the Respondent: | Mr Kenny |
| Solicitors for the Respondent: | Harris Friedman Lawyers |
ORDERS
That the Mother and Father have equal shared parental responsibility for the children of the relationship X born (omitted) 2005 and Y born (omitted) 2007 (collectively “the children”).
That the children live with the Mother.
That the Mother be permitted to relocate the children’s primary residence to Brisbane commencing Term 2 2016.
The children spend time with the Father during the school term periods as follows;
(a)On weekends at the conclusion of weeks 2 and 6 from 8:00pm on Friday until 3:00pm on Sunday, with the Mother to deliver the children to the Father’s residence in (omitted) at the commencement of time and collect the children from the Father’s residence in (omitted) at the conclusion of time.
(b)On weekends at the conclusion of weeks 4 and 8 from 6:00pm on Friday until 4:00pm on Sunday, with the Mother to deliver the children to (omitted) at the commencement of time and collect the children from (omitted) at the conclusion of time.
(c)In the event of a public holiday or a pupil free day falling on a weekend that the children are spending time with the Father, that time be extended to include that day or days; and
(d)At any other reasonable time(s) in Brisbane as agreed between the parties.
The children spend time with the Father during each school holiday period at the end of Terms 1, 2 and 3 from 6:00pm on the last day of term until 3:00pm on the second Monday during the holidays, with the mother to deliver the children to (omitted) at the commencement of time and collect the children from (omitted) at the conclusion of time.
The children spend time with the Father for one half of the summer school holidays to be the first half in years ending in an odd number, commencing at 3:00pm on the day after the last day of term and to conclude at 3:00pm on the middle day of the holidays and to be the second half in years ending in an even number, commencing at 3:00pm on the middle day of the holidays and to conclude at 3:00pm on the day prior to school commencing; with the mother to deliver the children to (omitted) at the commencement of time and collect the children from (omitted) at the conclusion of time.
That the children spend Easter, Christmas, Boxing Day, Mother’s Day, the birthdays’ of the each of the Mother and Father and the birthdays’ of each of the children with whom they are living or spending time with in accordance with the Orders above.
That each party take all reasonable steps to encourage and facilitate telephone communication between the children and the other party while the children are in their care, as requested by the children but no less frequency than 3 times per week when the children are living with the Mother with the calls commencing no later than 8:00pm.
That the children be able to communicate with the party with whom they are not living or spending time with by way of telephone / email / Skype / Facetime at all reasonable times.
That each parent keep the other informed of changes to the children’s health while the children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the children.
This order be authority to any doctor or other medical specialist upon whom the children may attend to provide each of the parents all information he or she may request with respect to the children and copies of any reports arising.
That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive any notices, information, newsletters, school reports, order forms for the children’s school photographs, information about the child’s progress at school as well as parent teacher appointments and information about extra-curricular activities involving the children.
That each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and provide the other parent with 7 days prior notice of any change.
That each party will provide the other with 14 days written notice of their intention to take the children outside the state of New South Wales or Queensland or outside Australia during any period that the children are in that party’s care and will provide particulars of the locations at which the children will spend time while outside the States of New South Wales or Queensland or outside Australia and in case of international travel, provide itineraries including flight and accommodation details.
That each of the parties will facilitate a reasonable request by the other parent for the children to spend time with either of them on a special day and/or occasion.
IT IS NOTED that publication of this judgment under the pseudonym McDonald & Leach is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7877 of 2010
| MR MCDONALD |
Applicant
And
| MS LEACH |
Respondent
REASONS FOR JUDGMENT
The matter of McDonald & Leach is an application brought by the father seeking to restrain the mother from removing permanently the place of residence of the parties’ children, X born (omitted) 2005 and Y born (omitted) 2007 from outside the area known as (omitted).
The mother wishes to relocate to Brisbane and to permanently relocate the children’s residence to Brisbane.
Mr Kenny of counsel represented the mother. Ms Smith of counsel represented the father. This is a matter concerning two competent, capable parents and the decision I make in this matter will cause a significant degree of distress and hurt to the other parent. There is no doubt the children have been well-parented in a cooperative child-focused manner both prior to and since separation or at least until the spectre of the mother’s wish to move to Brisbane was raised.
It is only the mother’s desire to remove the children to Brisbane that has caused the parties to be in the court. Had this not been the case the parties would never have needed the court to assist them in parenting arrangement for and care of their children.
The evidence I read was as follows:
a)For the applicant father:
i)Amended initiating application filed 13 January 2016 and affidavit of the same date;
ii)Affidavit of his wife Ms D filed 13 January 2016;
iii)Affidavit of Mr D filed 14 November 2014; and
iv)Case outline prepared by his counsel.
b)For the mother:
i)Response dated 29 October 2014;
ii)Trial affidavit of 15 January 2016; and
iii)Affidavit of the children’s maternal grandmother Ms R dated 20 January 2016.
c)A family report prepared by Mr N dated 20 April 2015 was marked court exhibit 1.
d)Exhibits:
i)Mother’s exhibit 1: map entitled Brisbane to (omitted);
ii)Mother’s exhibit 2: map entitled Brisbane to (omitted);
iii)Mother’s exhibit 3: SEEK job ads;
iv)Mother’s exhibit 4: minute of the orders sought;
v)Father’s exhibit 1: series of text message; and
vi)Father exhibit 2: schedule of New South Wales school holidays.
The short relevant chronology is as follows.
The parents were born in 1974.
They commenced cohabitation in (country omitted) in 2001.
In 2003 they moved to (omitted) and married on (omitted) 2004.
X was born on (omitted) 2005.
The wife returned to work approximately a year after X’s birth for one to three shifts a week.
(omitted) 2007, Y was born and the mother again took maternity leave and some eight months later returned to work doing one to three shifts a week.
The parties separated in December 2009. The father moved out of the former matrimonial home and the mother and children remained in that home.
The arrangements for the care of the children are that the children live with their father from Thursday afternoon to Tuesday in one week and from Thursday afternoon to Friday morning in the second week. The children are with their father every Thursday night. The children otherwise live with their mother and they share school holidays and other important events such as birthdays with their parents.
In 2010 the mother commenced a relationship with Mr D, an (occupation omitted) in (omitted).
The maternal grandmother commenced to live with the mother and children in 2011.
In 2012 the mother became engaged to Mr D, however that relationship ended poorly and in acrimony.
The father commenced a relationship with his current wife Ms D in 2012 and they married on (omitted) 2013.
In October 2014 the mother returned to fulltime work in a (occupation omitted) position at the (omitted) .
The maternal grandmother retired in June 2015 and determined to live in Brisbane where she now lives.
The wife after making application is offered a senior position in (employer omitted). The wife currently works in that position in Brisbane, working when the children are in the care of their father and with the assistance of her mother when she lived in (omitted).
The mother cannot continue to work in Brisbane and lives in (omitted) when she has care of the children eight nights a fortnight.
It is clear from the evidence that the parents have had a cooperative relationship, that the father and mother have each been committed, competent and caring of the children. It is clear that the parents have been able to negotiate proper care arrangements for the children. However, it is also clear that the mother has been and is the children’s primary carer. The father was the income-earner during the relationship with the mother only working part time and the children have had their majority care with their mother post separation.
The father admitted that post-separation the mother has been the primary carer for the children in that they’ve spent more time with him than her than he and that she was their primary carer when they were young and prior to separation.
The father and his wife Ms D have had a little boy, A thus the children have a brother in (omitted). Ms D owns a home and land in (omitted). Ms D is a (occupation omitted) and is currently on maternity leave caring for her son. Ms D proposes to return to work as a (occupation omitted) part-time in the (omitted) area.
Mr D, the mother’s former fiancé filed an affidavit in these proceedings supporting the father’s position. His evidence, both in his affidavit and under cross-examination to which I will later refer, supports entirely the mother’s claim that she can no longer work in the (industry omitted) system in (omitted) and is unable to remain living in (omitted) if she unable to work.
There are only two (employers omitted) in (omitted). Mr D is a (occupation omitted). He comes from a well-known family in the (omitted) area. It is clear to me that Mr D embarked upon a campaign to hurt and harm this woman perhaps in part due to the breakdown of their relationship. Unfortunately the father has been caught up in Mr D’s web and campaign against the mother. The result is that Mr D’s evidence supports the mother’s position she can no longer work in the (industry omitted).
Mr D’s poor attitude towards her and conduct towards her has resulted in her being unable to work in the field of (industry omitted), which along with a (occupation omitted), is where her skills set is. This work is now untenable for her.
Secondly the mother’s sister Ms B and brother, Mr A have each supported the father in his quest to ensure the children remain in (omitted) in that they have been feeding to the father information that can only have come from the mother’s siblings. That this is the case that was apparent from questions put to the mother in cross examination to which I will later refer.
The father has quoted comments from the mother’s brother and sister in his affidavit. Paragraph 14:
“Ms Leach’s sister Ms B lived with us for five years and now her husband lived with us for one-and-a-half years. I lived with Ms Leach’s mother Ms R for about three months at separation. Ms Leach has a very volatile relationship with her mother and I’m concerned that Ms Leach’s main support with the children in Brisbane is her mother and I do not know how she will cope if she has another falling out with her mother. I know she has had this because they have told me this. Ms Leach has now had a bit of a falling out with her siblings over her desire to remove the children from them and me and their stable situation here in (omitted). I know from conversations I’ve had with her siblings that they remain ready and willing to assist Ms Leach with the care of the children.”
Thus the mother’s family support in (omitted) has evaporated as her mother lives in Brisbane. The mother has asked her sister Ms B to care for the children once this year however their relationship is somewhat fractured given her support of the father. The father and the mother’s brother and sister regularly have family get-togethers and have a good relationship.
The father’s endeavours to ensure that the children remain in (omitted) by using information gleaned from the mother’s siblings in his case has resulted in the support that the mother had from her siblings in (omitted) now being so eroded that it is likely untenable for her to rely upon her siblings for support in the care of her children as they have significantly breached her trust.
The role Ms D has played in having Mr D on side such that he filed an affidavit in the father’s case making adverse comment about the mother’s desire to move to Brisbane has also further cemented the mother’s claim it is now untenable for her to remain in (omitted).
Most sadly the prior and hitherto cooperative and effective co-parenting relationship these two competent, capable, loving parents had has now been fractured and may not be able to be retrieved. That issue is relevant to the father’s claim that the children not only remain in (omitted) but that he and the mother have an equal time regime, which time regime is supported by the family report writer Mr N.
Mr N did not support the mother’s move to Brisbane. However, as the evidence unfolded, Mr N’s report is significantly flawed and thus his recommendations are of little assistance to this court. Mr N has in the preparation of his report done a significant disservice to the father and perpetrated a significant injustice on the mother which shall become apparent.
The father’s affidavit is replete with his complaints about the mother making things difficult with the children, of her trying to drive a wedge between him and the children, asking for money for extra-curricular activities, involving the children in too many extra-curricular activities, wanting to change their school, having overseas holidays at the same time as asking him for money, not being cooperative about changeovers for holiday times, surprise birthdays and the like. Yet the children spent the whole of the January 2015 school holidays with their father and Ms D in (country omitted) which is where the father’s family comes from. The father’s complaints do not match the mothers’ conduct.
The father said the mother can go to Brisbane to work because that is clearly her desire and the children can live with him. The father is clear in his affidavit that from his point of view the mother’s desire to move to Brisbane is due to her wanting to have a change and to earn better money and have better working relationships.
The mother’s position is if the court does not permit her to remove the children to Brisbane she will remain in (omitted) with the children.
The father says at paragraph 37:
“I’m very concerned about the kinds of people the children will be if the time they spend with me is reduced. Will says to me, “Mum says it’s important to work hard at school so you can get a good job and earn a lot of money.” I’m of the view it’s more important to be a good and decent citizen, caring of others and having stable relationship with friends and family. Ms D and I are of the same view about this but Ms Leach appears to be more materialistic. Whilst this of course what happens I would like to have an equal input into the children’s lives so they hopefully have more balanced values and lifestyle. I am concerned about her ability to promote a relationship between me and the children if she goes to live in Brisbane. She has been dismissive my relationship with the children.”
As the evidence unfolded nothing could be further from the truth. The mother has never nor would she ever be dismissive of the father’s relationship with the children.
The father had to admit that the mother’s relationship with her brother and sister had been damaged by them telling him stories and repeating conversations they had had with the mother and he then repeating those conversations in his affidavit and giving information to his to his lawyer for cross-examination of the mother.
The father was asked “are you friends with Mr D” he replied, “No.” Question “Well how did you get him to put an affidavit on in support of your case in 2014?” As it transpires his wife Ms D was referred by the mother to Mr D as he is a well-regarded expert (occupation omitted), for an injury to her (omitted) which was treated by Mr D. Whilst in consultation with Mr D, Ms D opened up about Ms Leach.
That can clearly be the only way this siding with the father came about. Mr D and Ms D spoke about Ms Leach which may well for Mr D breach of his ethical code of conduct as at this time the mother was also a patient of Mr D’s having injured her (omitted) in an accident at home.
The father says at paragraph 12:
“Ms Leach and I had an argument in 2012 about my not giving in to every demand she made.”
There is simply no evidence that that was the case. The father was asked “what were the demands you are referring to the six out of eight night’s amicable agreement in relation to care arrangements for the children?” “Yes.” That was not a demand it was an agreement. It would have been inappropriate for these children to have an equal time arrangement at that young age in 2009 and indeed six-eight may have been too much.
The father agreed the mother was a good mother, agreed he had called her a hypocrite, that she was threatening, controlling and destabilising however this was only because of this move. However the parents have moved before as has Ms D. The mother moved to (country omitted). The parents moved from (country omitted) to Australia. Ms D moved from (omitted) to (omitted). In Australia people move.
Ms D’s parents live in a farm in (omitted), which is almost equidistant between Brisbane and (omitted). The evidence from Ms D was that her parents have for the last two years intended to sell and relocate to (omitted). They have not yet done it. When the father and Ms D met she was working in (omitted), a job she only gave up last year by way of resignation from the (employer omitted).
The father was asked why had he not looked into jobs in south-west Queensland to be closer to the children in the event the court made an order they were to move. His answer:
“I believe it’s in the best interests of the children that they stay in (omitted).”
That is the father’s belief that it is best for them to stay in (omitted). It certainly is best for the father that they stay in (omitted). The question of whether this is also best for the children is a more nuanced and sophisticated analysis to be undertaken than accepting the father’s understandable position.
The travesty in this matter is that this is precisely the view Mr N, family consultant, took, namely the father’s position. He failed at any level to address the impact upon the mother of the father’s proposal, namely she remain in (omitted) with the children. He did not canvass that option with the mother or father. He did not canvass whether the mother would remove herself to Brisbane and have the children remain in (omitted) if the court did not permit her to remove their residence and the impact that would have upon the children and the mother’s functioning.
He did not address the impact upon the mother’s functioning if the father’s application that she remain in (omitted) is the order the court makes. He did not address the capacity of the father and his wife Ms D to move from (omitted) closer to Brisbane where the children might live. None of these extremely important other side of the coin matters, were addressed by Mr N, he simply took the father’s position and ran with it.
Mr N failed at any level to explore with the father and Ms D their capacity to move closer to Brisbane from (omitted). That was simply not put to either of them in his report and he admitted as such in cross-examination. Thus, the hard work had to be done by Mr Kenny in cross-examination.
It became apparent that the father will not move from (omitted) no matter what the decision is and he seeks that the mother remain in (omitted) to support his position of wanting to live in (omitted) as he and Ms D have bought a home and they plan to raise their family.
The father through legal advice must have known it was a possibility that this court could make an order that the mother be permitted to remove the children permanently to Brisbane yet he took no steps to see if he could obtain employment or if he and Ms D could move or if this was feasible.
Mr N’s one dimensional report which is bordering on bias is a matter that this court has struggled with. The report has done a disservice to the father by perhaps leading him to believe he did not need to consider any other option than the children remaining in (omitted) which view may be supported by the fact that he and Ms D bought their home in October 2015, 2 months after the matter had been allocated a hearing date in February 2016. This decision may have been somewhat reckless if the father was in full knowledge with good legal advice, that it was a possibility that the mother may be able to relocate to Brisbane.
The report has done a disservice to the mother in not exploring with her the consequences of the possible outcomes or her proposals on all the options. Ultimately the disservice is perpetrated upon the children.
The father agreed that since the mother informed him she wanted to move to Brisbane their parenting relationship has deteriorated. He agreed that his wife Ms D is very critical of the mother’s desire to move. He was asked if the mother is not permitted to go to Brisbane how you think that will affect her or how affect your relationship. The father answered, “I can’t say.” I asked him to think about it. He then said, “No. Well, it wouldn’t be good. It depends on Ms Leach how the relationship develops,”
The nature of a relationship is a two-way street. It is never one sided. All the father can see is his loss and he struggled to see the matter from the mother’s perspective.
The father was asked, if the children do relocate to Brisbane will you move closer:
“No. What’s keeping me in (omitted) is my job and A.”
A is two-and-a-half and I could not see that as a reason he can live anywhere provided he is with his parents.
“My job and my friends keep me in (omitted). Lots of reasons to stay in (omitted), it’s a large regional town.”
These were matters that suited the father. This was all about him and Ms D’s needs and the arrangement he has which he currently enjoys and from which the children benefit.
The father sees plenty of his children. He does not exactly do the hard yards with them that the mother does such as taking them to doctors, arranging tutoring and the like. However, from the father’s perspective he sees plenty of his children, he has a good secure job, a home with his wife and child and he wants things to remain as they are. That is his understandable position. It is clear that the children spend substantial periods of time at Ms D’s parents’ farm in (omitted), June-July school holidays and Christmas holidays and on the occasional weekend.
The children are used to travelling. They went to (omitted) to meet Ms D before the father and she moved together in (omitted). This is something the children are used to doing. Whatever order is made there are significant distances between Brisbane and (omitted), Brisbane and (omitted), (omitted) and (omitted). It is a five-hour trip between Brisbane and (omitted) and two-and-a-half hours to (omitted) from either place.
Mr N was very critical of the mother stating she was imposing her wish to move to Brisbane upon the children and that in some way she was trying to influence the children to say they wanted to move to Brisbane. As cross examination revealed nothing could be further from the truth. The father believed this total misstatement and error by Mr N and was again mislead by the family report writers recommendations and opinions.
At paragraph 69 he said:
“It’s a concern to the family consultant that the mother has tried to influence the children views about such a relocation. It will undoubtedly have caused confusion for the children given their positive experience with the father.”
This opinion is not available to him on the evidence. He was wrong. What the mother had done is what any proper-thinking parent would do, prepare children for an eventuality that would be a substantial and significant change to their care arrangements, namely Mum wants to go and work in Brisbane, Dad and I can’t agree about that, someone is going to sort it out for us. Mr N suggested that these children should not know anything about the move to Brisbane until, as Mr Kenny said:
“The day that the judge delivers the judgment?”
I accept that the mother must have raised with the children the prospect of going to Brisbane before she raised it with the father. This was a significant error of judgment on her part and may explain part of the current tension and apprehension. Mr N believed the mother was imposing her view on the children because X said to him unsolicited:
“Living in Brisbane will not be too bad. I would see Dad in the holidays and Skype with him.”
I fail to draw that conclusion from this innocent comment. X is a sensitive and intelligent child who had been thinking about a proposal that his mother had alerted him to as a possibility
At Paragraph 64:
“Y was clear to say her mother has discussed the relocation to Brisbane with her and her brother telling the family consultant her mother told her she would be spending all the holidays with Dad, it would be fair.”
How is that inculcating a child? This is just alerting a child to a possibility. This inference was not available for Mr N to draw. Advising the children of a possibility of moving before you have raised this spectre with the other parent is an error of judgement however it is not sufficient to warrant an opinion of imposing a view on a child. It is clear the children want their parents to live together again and they love each of their parents.
There is a substantial difference between overbearing on your children, ramming down their throat your point of view and alerting your children to a possibility of a significant change in their care arrangements as any proper-thinking, reflective parent would prepare their child for.
The position that Mr N took and then adopted by the father that the mother was coaching the children is not supported on the evidence.
This was a significant mis-judgment on Mr N’s part which has in turn caused difficulties for the father as he understandably accepted what Mr N said. Thus his affidavit is littered with what I regard as mere comments from children and errors from children, as is often the case about the move which the father saw as the mother imposing her view on the children when they are merely children’s comments about a possibly big event in their life. This has further damaged and dismantled what had hitherto been a cooperative parenting arrangement.
It has never occurred to Mr N or the father that X, for example, had himself thought he might like to live in Brisbane. It is as clear as night follows day X must live with his mother. The mother is his closest emotional attachment. The period of time from Thursday to Tuesday can be too much for X at times and after the one-month holiday with the father and Ms D in (country omitted) in 2016, X and Y had been brought back early to their mother’s care because he simply misses his mum. He is very closely attached to his mother.
That in no way diminishes his relationship with his father but this is a significant attachment the potential damaging of which by not allowing the mother to move was not even commented on by Mr N in his report. He did not even explore the possibility of the children not living with their mother, a significant deficit in this report or the impact upon her parenting if she is to remain in (omitted) and whether this would impact on the children’s emotional attachment to her.
The father agreed that the mother was not overbearing on the kids when they wanted to cut time short over the last few weekends as he acknowledged they were missing their mum. The father agreed X is very close to his mother and that Y is a more go with the flow child and I accept that evidence. The mother well understands the consequences of her move upon the children and the father. Unlike the father’s blinkered approach, she well understands the loss the father and children will experience with her proposed move
The father told Mr N that the mother has taken the children to see a school in Brisbane. The children have never been taken to a school in Brisbane by their mother. This falsity was peddled by the father, sold to Mr N and then the mother is criticised by Mr N for something she has never done.
Paragraph 13 of the family report:
“The question of whether the court supports the mother’s proposal to relocate the children to Brisbane remains the only issue in contention. But it remains difficult to see how the father’s existing relationship with the children would not be significantly diminished if the children relocated to Brisbane with their mother.”
This is a comment under Issues in Dispute and Issues Identified. Mr N has raised an issue and then drawn a conclusion before he put forward his assessments of and interviews with the family. Paragraph 13 tells me that Mr N, at the commencement of this interview, had formed a view. He saw the father first. The children had been with their father for the school holidays when the report was prepared and they had not seen their mother for some time. This was not mentioned by Mr N. The father’s brief was to make sure his children were not removed from (omitted). This was not Mr N’s brief. His brief was to explore the various options in the mother staying or leaving with or without the children, the children staying or leaving with or without their mother, the father moving or staying with or without the children and then after his interviews put forward his recommendations of the option/s that were in the children’s best interests.
A reading of Mr N’s report has lead me to the conclusion that he sees the childrens’ most important relationship as their relationship with their father as Mr N barely refers to their relationship with their mother or any consequence upon that relationship of the father’s position of the mother remaining in (omitted).
The family report is littered with the importance of the children’s relationship with their father, what it will mean if they move, how it will diminish if their time with their father is less than it is now and fails to address at any level the importance of the children’s relationship with their mother being maintained and continuing under the various options available including her wish to relocate to Brisbane with children.
Paragraph 14:
“The family consultant accepts the mother in wishing to further her career is a positive desire but there seems to be the inevitable positive consequence for the children in the mother being able to extricate herself from a shift work lifestyle. This needs to be balanced with the needs of the children in maintaining the relationship they have experienced with their father both prior to and subsequent to the parents’ final separation. There is no history of family violence or child protection that would warrant a relocation.”
Mr N clearly believes that there must be a justification or a good, sound cogent reason for relocation. That is not the law. Adults are entitled to live where they wish. It is the circumstances of and the consequences of that wish being brought into effect that this court must determine and, in so doing, the various options that are raised by such a consequence are to be examined by the family consultant when they interview the family. This was a fundamental failure of Mr N.
The needs of the children in maintaining the relationship they have experienced with their father is but one of the factors I must consider. It is not the relationship I consider rather the benefit of a meaningful relationship with their father and their mother. Nowhere in his report does Mr N refer to the words “benefit of a meaningful relationship”. He speaks of a relationship with their father not their mother.
In cross-examination he used the word “integral” in describing the childrens’ relationship with their father. This use of the word integral is novel and is not in the Family Law Act.
“The children having an integral relationship with their father.”
This is a word that Mr N says incorporates significant and meaningful for him. The report prepared by Mr N was not a report for him; it was a report for the benefit of the court and for the parties. He would do well to henceforth use the words of the Act “benefit of a meaningful relationship with a parent” and “significant and substantial time with a parent” and include each parent in his analysis.
At Paragraph 68 he said :
“It’s reasonable to suggest both parents during their relationships and subsequent to their separation have each had integral and significant relationships with both subject children.”
That is a meaningless statement for the Family Law Act. It is of concern to the court that Mr N failed to canvass the impact upon the mother of not being able to remove herself and the children to Brisbane and therefore the impact upon her parenting and therefore the impact upon the children and thus his conclusion below cannot be relied upon as it is not based on an analysis of each parties proposals and the consequence for the children of those competing proposals.
“Conclusion: Given the absence of any history of family violence, combined with an absence of child protection concerns whilst the children are in the father’s primary care, the family consultant is not in a position to support the children’s relocation to Brisbane. And, it should be week about with each parent.”
At paragraph 9 Mr N says :
“The respondent mother clearly indicates she desires to relocate the children and herself to Brisbane in order to change the nature of her work obligations.”
That was but one aspect of the mother’s desire.
What Mr N failed to take into account, because he did not allow the mother to tell him, is that one of her more compelling reasons to remove herself from (omitted), is that she can no longer work in her area of a (occupation omitted) in the two (workplaces omitted) in (omitted) because of the poor behaviour of Mr D, subsequent to the breakdown of their relationship. This poor behaviour has been exacerbated by the father calling him as a witness in his case and using conversations he has had with the mother’s siblings as ammunition against her in this hearing.
This campaign has taken its toll on the mother. Mr N only got half the mother’s story because he would not let her finish. At paragraph 13, Mr N stated :
“The question of whether the court supports the mother’s proposal to relocate the children to Brisbane remains the only issue in contention. But it remains difficult to see how the father’s existing relationship with the children would not be significantly diminished if the children relocated to Brisbane with their mother.”
The issues for the court is the impact upon the children’s relationship with each parent and significant others if they and the mother relocate to Brisbane, if they stay in (omitted) with their mother, if they stay in (omitted) with their father or if they do re-locate and their father moves closer to them. As one can see Mr N’s simple statement is only a part of the analysis, assessment or balancing I am tasked to undertake. Mr N misstated the law.
Mr N laid significant emphasis on the time that the children spend with their father as being at the centre of their continuing meaningful relationship with him. That less time of itself would result in a diminution in their relationship with their father.
The children have a strong, attached, close relationship with their father. I accept their relationship with their father will change if they move to Brisbane but to opine that it will diminish to any significant degree is not supported on the evidence given the strength of this relationship.
The mother’s proposal was for the children to spend two weekends a month with their father, one in (omitted) and one in (omitted) and a greater proportion of the school holidays, Skype and technology and the like. That was the mother’s competing proposal which was not considered by Mr N. The father had no proposal if the children live in Brisbane nor did Mr N explore this with the father. His proposal was one dimensional being that the children and their mother remain in (omitted) and they have equal time.
At paragraph 44 Mr N said:
“Whilst there is no doubt Ms Leach presented as an articulate individual who clearly sees that the implications of her career advancement would only have positive ramifications for the children, it would seem she was not able to acknowledge the significance of the relationship that the children have evolved with their father and how such a relocation could have a negative impact upon them.”
This opinion is not supported on the evidence and the mother’s cross examination was to the contrary. The father said in cross-examination he had no doubt the mother would foster the children’s relationship with him even if she was in Brisbane. He agreed that the goodwill between he and the mother had gone due to this impending litigation and each of the positions the parents have taken. They have been able to protect the children from it this year and X was having some issues at school with anxieties. He is a sensitive boy. The father agreed he requires additional assistance at school and Ms D has been assisting with that.
The father agreed if the mother was happy, content with her life and where she was at, this would have a positive flow-on effect for the children and it is axiomatic. The father said he would be devastated if his children went to Brisbane and I accept that. He agreed he could make the adjustment and I accept he would and can make the adjustment. The father agreed that if the mother was forced to remain in (omitted) her prior depressive state from which she has recovered, could return and this would have a negative impact on her parenting of the children.
The father did not agree that the children would hold him responsible if they were to remain in (omitted). I am not so sure. At paragraph 12(e) of his affidavit he says X said to him:
“Mum said you are not letting us to go to Brisbane with her. How about we do a weekend swap, Dad?”
X may conclude that it is his father who stopped his mother going to Brisbane and consequences for the father and X’s relationship may flow. The father admitted that his son will work out his father has won. The father agreed that although X is of quiet nature, can be shy and he tries to please, he has a level of maturity of an 11-year-old and that X has said he is ready for a change and is looking forward to a change in his school and a new place to live.
The father could not agree that X would not want equal time care arrangement. There is no evidence to support this is a desire or wish of X. The evidence is he misses his mother when he spends lengthy periods of time with his father and told Mr N he finds the current arrangement confusing at times. His closest emotional attachment is his mother. He has to be returned early to her on a six-eight arrangement currently. One can only ask how could he possibly cope with equal time. I accept Y may well be able to deal with an equal time arrangement she is a different child to her brother emotionally.
The parenting relationship is fractured. It has been latterly quite acrimonious at times. The father and Ms D’s affidavits are testament to that. They are littered with complaints about the mother’s behaviour, poor attitude, poor conduct, not being cooperative, changing plans, only letting them know at the last minute of a change etc. It is clear that the level of communication is now at such a low level that these parents could not manage an equal time arrangement and such an arrangement would be contraindicated to the children’s best interest. How Mr N thought that with the parents poor communications they could manage an equal time arrangement and that this would benefit the children is not clear. Mr N’s bald assertion that the children should live in a week about arrangement in (omitted) when he had described X as being confused by his current living arrangements is not supported on the evidence.
The father agreed that a change in the children’s school would be an adjustment for them but that they would cope and that they could transition to another school. The father accepted in cross examination that the mother may feel uncomfortable working at (employers omitted) where Mr D works which is both (employers omitted) in (omitted). It was improper for he and Mr D to assert she should not feel uncomfortable. It is her feelings and reactions that are at issue not the belief of someone else about her feelings
It is not for anyone but the mother to tell me about her feelings. Yet in their affidavits neither the father nor Ms D could understand why the mother would feel uncomfortable. The answer is clear. Neither of them has been at the receiving end of Mr D’s poor behaviour.
The father’s affidavit at paragraph 23(d) :
“Things generally went fairly well for about 18 months until Ms Leach was not invited to the surprise birthday breakfast for me. And it became even worse when I would not agree to allow the children to move to Brisbane.”
And at Paragraph 13:
“It was my 40th birthday, (omitted) 2014. I had a surprise birthday breakfast. Ms Leach was not invited. She was incensed.”
There is not one complaint that the mother makes or angry comment the father puts forward to support his conclusion. The mother never complained about not being invited to the father’s surprise birthday party. It was irrelevant to her.
The father opined that it was the mother’s happiness that was at the forefront of her desire to move to Brisbane. That is simply wrong. Her reasons are varied and cogent.
The father agreed the children developed a good quality relationship with Ms D prior to her moving to (omitted) by travelling to (omitted) and that meeting in (omitted) would be feasible as would the travel to and from (omitted) to Brisbane for one weekend a month.
The father’s concern as to weekend sport for the children with alternate weekend travel is a valid issue. He agreed that there are many sporting teams which accept this is a common arrangement for children and children can attend once each second weekend.
The current care of the children was all that the father could see and despite Mr Kenny’s best efforts to have him look at a variation of their living arrangements he could see nothing other than living in (omitted) as working for his children.
Both Mr D’s affidavit and his cross-examination were revealing. At paragraph 2 Mr D says:
“I’m aware that Ms Leach is now claiming she needs to move from (omitted) to enable her to work without having to be concerned about coming into contact with me. I say this is incorrect for the following: I normally operate out of (omitted). I do, however, work at the (employer omitted) which is a (employer omitted) for seven days a month. Ms Leach had a position carrying out work as a (occupation omitted). She gave it up to take up a position as a (occupation omitted). She made that as a choice. Ms Leach and I have very little reason to come into contact. I’ve seen her on four occasions since we separated some 21 months ago.
On 24 July she contacted me seeking assistance in relation to an injury to her (omitted). She contacted me to arrange for Mr McDonald’s wife Ms D to see me regarding a (omitted) injury. I saw her on 10 June 2014. Another occasion was 31 October 2014 when I walked past her office and the door was open. Ms Leach did not appear to be uncomfortable with any of these encounters and nor was I.
From my knowledge, Ms Leach earns a good income and does not have come into contact with me except on rare occasions?
I had a close and loving relationship with the children. I saw the children with Mr McDonald and know that he’s a good and loving father and has a good relationship with his wife.
I’m very concerned about Ms Leach’s wish to remove the children from the regular healthy relationship they currently have with their father, his wife and half-brother. I believe that knowing the children a move to Brisbane away from their current arrangements to see their father would be to their detriment.”
This man has not one iota of credibility. His view of the father, his opinion on the impact for the children of moving to Brisbane, the mother’s income or how she feels when she comes into contact with him is irrelevant. He agreed it was an assumption about Ms Leach’s income and that she was a good mother.
He has not seen the children with their mother for two years. He did not live with the children on any long-term, ongoing basis. I find he filed this affidavit to thwart the mother’s position and to pay her back. He has had two other failed relationships. One woman left (omitted) and he brought an application for defamation against the other woman he had a relationship with. He may be an excellent (occupation omitted) but he is a nasty man to those he believes have wronged him.
It came out in cross examination that he sent photographs of his wedding to Ms D and Mr McDonald. They were not invited to the wedding. Why would he do that? He met Ms D in (occupation omitted) relationship and clearly he and she discussed personal, private affairs between him and the mother who was also a patient of his at that time. This may be a breach of (occupation omitted) confidentiality.
When he was questioned on this event, he replied:
“It came about because I asked Ms D how the kids were and she opened up.”
Mr D comes from a well-established (omitted) family. There is a sporting field named after his father. The Mr D family are an important and respected family in town. Mr D could not see how his giving of this affidavit to support the father and the content of his affidavit would cause the mother even greater concern if she is to stay in (omitted).
It is apparent to me that his affidavit, the manner in which it was written and its contents have significantly affected the mother’s capacity to stay in (omitted) when he is clearly an important and influential figure in the town.
Ms D was cross-examined. Ms D said she would have to work at her relationship with Ms Leach because since the move to Brisbane came about there has been a lot of resentment between the ladies. She has heard X say, “I want to go with Mum.”
That is it, X wants to go wherever his mum is living, it is clear. Ms D has not heard him say he wants to live with his dad in (omitted). There was a significant difficulty for Ms D in accepting that X wishes to live with his mum. This wish in no way diminishes the relationship he has with his dad; it is that his mother is his closest emotional attachment.
All agree that Y has said “I do not mind where I stay.”
In examination in chief, the mother was clear that she did not feel she had any opportunity to fully explore her full reasons for moving to Brisbane with Mr N and that she said to him:
“I want to explore the work situation.”
He said:
“You’re working and can keep working. I do not need to know.”
Yet her work situation is now one of most significant factors in this matter.
The mother said that Mr N had rung Mr McDonald to ask him to ring her and tell her Mr N was running late. That is how she knows her interview time was cut short. That when she arrived Mr McDonald, Ms D, A, Ms D’s parents and the children were all there.
The mother said Mr N’s opening comment to her was “You did the wrong thing by Mr McDonald finding out about the move from the children. You’re an educated woman; surely you know this is the wrong thing to do.” Mr N had already interviewed the father and had the story from the father.
Mr N agreed he did not make notes, that he did not record the time he spent in interview nor did he record these comments to the mother. He could not remember if he was late. In future, Mr N should note down the time he spends with parties.
The mother said Mr N then asked about her upbringing, domestic violence, if Mr McDonald was a good dad.
“And I said, Mr McDonald is a good dad. There’s no DV.
I told him I realise this would impact badly on Mr McDonald’s relationship with the children. He told me that as Mr McDonald is a good dad, there’s no domestic violence and if Mr McDonald wants the status quo he gets the status quo.”
If Mr N said this it is simply not the law and secondly it supports my finding that Mr N was wrong to state as he did that the mother was careless or not understanding of the impact the move would have upon the children’s relationship with their father.
The mother said:
“What about my work?”
And Mr N apparently said to her,
“You are working.”
The mother was asked what had she wanted to tell Mr N:
“That I was uncomfortable working in the (employers omitted) with Mr D. I didn’t want to work shift work and there were opportunities for me in Brisbane not available in (omitted). He spent about 40 minutes with me and at 5 o’clock the interview finished.”
The mother does not agree to equal time. The mother said X wants to come home early Monday nights as it is.
If she is permitted to go to Brisbane she will bring the children down one weekend a month to (omitted), stay the weekend and then drive them back to Brisbane. On the other weekend the parents can meet at (omitted). If the father comes to Brisbane there is no issue with the father spending time with the children and the father can certainly have more than half the school holidays.
In cross examination Ms Smith asked the mother why she wanted to move to Brisbane. Her answer was she can maintain the children attending at a private school which she cannot continue in (omitted) because she cannot earn sufficient income, there are better employment opportunities for her, she can get out of shift work and still increase her income. Most importantly she said “My mother has moved to Brisbane. She’s my support. I won’t run into that creep of an (occupation omitted).”
It was put to the mother she is determined to live in Brisbane. This was improper. The mother is living in Brisbane while she works in Brisbane, but she has maintained the home in (omitted) where she lives with the children when she is not working and if she is not permitted to move with her children she will remain in the (omitted) home.
It is untenable for the mother to maintain her Brisbane job if she is unable to permanently live in Brisbane which will only occur if she is able to remove the children’s home to Brisbane permanently.
The mother said “I’m hoping the children can come live with me in Brisbane, and if I don’t - if that’s not permitted I will resign my job and I’ll give up the lease on the property my mother and I have, and I’ll remain in (omitted). I just felt I couldn’t work in (omitted) any longer.”
Ms Smith puts a foolish question to the mother :
“I put it to you this was a blatant attempt to manipulate the Court to find a fait accompli. “
There is no fait de compli here it is merely the mother putting in place an arrangement that will work for her and the children if she is able to move to Brisbane.
The mother has established a home if she is permitted to relocate. The mother has determined the appropriate schools if she is permitted to relocate. The other has a job if she is permitted to re-locate. If she cannot it all ceases, she goes back to (omitted) where she and the children still have a home. This is a carefully prepared, planned move with the children having knowledge of what the mother wants, awaiting the Court decision.
The mother has done nothing irreversible or permanent. That line of questioning did not assist.
Much was made of the mother not attending one school event for Y at school in 2015. That is a common occurrence with parents who work. Nothing assisted me from that line of questioning.
I accept that the mother can work full time if the children are with her in Brisbane because her mother is there to care for them on occasions when she is working. Similarly as her mother now lives in Brisbane I accept she can only continue to work part time if she remains in (omitted).
Her mother is in Brisbane and her other family support has eroded since these proceedings commenced. The mother has been paying off the children’s school fees. The father has not paid them. He has a view that he should not have to pay child support. I do not accept that position.
There was much made of the expensive motor vehicle the mother drives. This was a part of her property settlement with Mr D. That line of questioning did not assist.
The mother was questioned about some holidays she has taken to (country omitted) for four days, Perth in 2015 on frequent flyer points, (country omitted) and a trip to the (country omitted) two years ago. The (country omitted) trip was paid off over a two-year period. The trip to (country omitted) was for the (omitted) Charity where they raised $30,000. That line of questioning did not assist.
It was put to the mother that she was attempting to force the father to pay the children’s school fees. Well, he is their father and perhaps he should pay half their school fees. That line of questioning did not assist.
It was put to the mother that she told the school the father would henceforth be responsible for paying school fees. That is wrong. The school got it wrong. She did not say that. The mother said “I would not have intentionally entered into a humiliating discussion with the school principal about not paying school fees if I did not need to”, and that, I accept, is the evidence.
Mr D’s glib attempt to satisfy the court he and the mother would rarely see each other at the (employers omitted) where they each work was exposed as an untruth. The mother said he works seven days a month at the (employer omitted), he has (duties omitted), he works at (employer omitted) three days a month and he has (duties omitted) at (employer omitted). He has (employment omitted) outside his on-call times and he has meetings weekly as well. He is clearly at both (employers omitted) almost daily.
The mother gave evidence she saw Mr D six times in the last week before she left her employment at (employer omitted). These times were in the day and in (employer omitted).
The mother was taken off Mr D’s (duties omitted) when the (employer omitted) administration realised the relationship had broken down and she was placed with another (employer omitted). The mother said Mr D said he would not (duties omitted) and I accept that is what he said. The mother said she found this humiliating in that she is unable to receive (omitted) treatment from whom she regards as the best (occupation omitted) because of his personal relationship. I accept this evidence.
Much was made of the mother’s previous work history. I had no idea what that questioning went to. The mother cannot maintain full-time work because her mother has gone to Brisbane.
The mother does not have her (omitted) house on the market for sale. All of these questions were put to her based upon information fed to the father by her family namely her brother and sister.
The rental property in Brisbane has been furnished with items from the former matrimonial home. Both homes are scantily furnished. I accept that. She spent $50 on a new table. The mother said she discussed multiple times with the father enrolment of the children at a Brisbane school. I accept her evidence.
The mother said she had included her address and details on the form but not the father’s address and details on an enrolment form at (omitted). The mother said she did that because what she was waiting to get was an enrolment package for herself, one for the father and would have then sent it on to him.
I fail to understand why she just simply did not put the father’s address down at that time so it could be sent to him directly and also letting him know it would come. The mother said she wanted to see the enrolment package and go through it before she sent it to the father. I do not see this is appropriate and this was a poor decision by her.
Exhibit 1 to the father’s affidavit were various SMS messages that were tendered by the father in his case which only supported the mother’s position of Mr D’s nastiness and the nasty breakdown of their relationship. Rather than helping the father’s case these messages merely supported the mother’s position.
The mother agreed that the children have a good relationship with their maternal cousins. It is clear that the father spends considerable periods of time in the mother’s brother and sister’s homes as he is getting all sorts of information from them. Thus he will be able to ensure that his children maintain their relationships with their cousins when they are in his care if they live in Brisbane.
The mother’s sister, Ms B, has cared for the children twice in the last six months, 2 February 2016 being the last occasion. This question was put to her, “She has done that knowing she disapproves of your intention to move.”
How would the father know that Ms B disapproves of the mother’s intention to move unless Ms B told him this? The mother believed Ms B does not disapprove of the move. The mother agreed, “We’re not as close as we used to be. It’s awkward for us now that the Court is on, and they’re all still sociable with Mr McDonald.” The mother said “I could not ask my sister to help me if I stayed in (omitted) because I work night shift, and she has her own children to care for.” Ms B is not a family member who can assist the mother in the care of the children.
The mother was asked questions about her younger brother Mr K, who with his fiancée lives with her mother in Brisbane. Mr K’s fiancée comes from (country omitted). Specific questions were put to the mother concerning their intention to travel to (country omitted) and perhaps live there. Such matters are of no relevance to this case other than this. Clearly information from the mother’s family is being fed to the father for the purposes of this hearing further supporting the mother’s position she can no longer stay in (omitted).
It was put to the mother there were other positions she could take up in (workplaces omitted) at (omitted). The mother said
“I do not want to work at (employer omitted) . Mr D is there. I do not want to work there.
I’m currently establishing my work in Brisbane, and I work shift work. I can do full-time work of a daytime. I’m working part time to get my foot in the door. If I’m allowed to move it will be full time, and it will be shift work, yes, day and night, but that will change to daytime and a more (omitted) role in the future.”
This is the mother’s intention that she will move up through the ranks of (omitted) to a more (omitted) role.
The mother was questioned that as she did (omitted) work in 2000, 16 years ago and could do that work now. It was put to the mother that she had undertaken (duties omitted) at the (employer omitted) and could find work in that area. The mother did a short term project at the (employer omitted) when a car park was built. This evidence was of no assistance to the Court.
The real skill and experience this lady has is what she wishes to continue to do work in the (omitted) areas in (industry omitted) and ultimately be in an (omitted) role.
The father has an expectation that the mother can re-train in order to stay in (omitted) and that she need not use her skills and training in the past for her future employment. If this be relevant for the mother, it must also be relevant for the father to re-train to enable him to obtain work and move closer to his children should they re-locate. Such a notion has not crossed his mind.
Asking the mother to acquire skills to obtain different employment to that which she has training and skills in was of no assistance
In relation to smaller regional (workplaces omitted) the mother has looked for a role closer to (omitted). The mother applied for a position at (employer omitted) 12 months ago as the (position omitted) and was unsuccessful. The mother said she could perhaps find employment in (omitted) or the (omitted) as small regional (employers omitted) such as (omitted) and (omitted) do not have the roles she wants as they do not have (positions omitted).
The mother said she could not work in those places because she would have absolutely no family support. It was put to the mother that she just wanted to go to Brisbane and she said, “No. If Mr McDonald had negotiated I would have considered the (omitted), but Mr McDonald was not interested in negotiation.” I accept that evidence, even today the father cannot contemplate the children moving away from (omitted).
The mother said she will try her best not to let the disappointment of not being able to move impact upon the children, “But I would not be a happy person” and she would not that is clear.
The mother agreed it is a drastic change moving the children from (omitted) to Brisbane but they will spend time with, ring and speak to their father and their little brother. It was put to the mother that it was a surprise X wanted to return earlier to her at the beginning of the year and the mother said, “It’s not a new thing. It was accentuated due to the big block of time in January. X always misses me”, and that is the fact.
The mother said “I’m not going to do shift work forever. I will do so whilst the children are at primary school because I can get to their functions; however, my aim is to do daytime full time.” The mother believes that once she has established herself in her job she will move to day shift by negotiating this with her boss. The mother is well-organised, the children are well organised in her care and she will continue, as she has always done, to organise her children.
The maternal grandmother was called. She gave consistent evidence concerning Mr K.
The grandmother confirmed the children each have a bed in Brisbane and the house is scantily furnished. She said, “I moved to Brisbane in November 2015. I was living in Brisbane in October 2014”. The October 2014 was an attempt to make out the mother had lied in her affidavit on this issue. Clearly she had not.
The grandmother said “I rented a home in Brisbane. I have Mr R and Ms D in (omitted), Mr B in Perth. Mr K might live in (country omitted) for two to three years. It’ll happen sometime this year, so it’ll only be Ms Leach and I in Brisbane and hopefully the children. I’m not in a relationship. I have no intention to move.”
The maternal grandmother was a most impressive witness. She has six grandchildren in (omitted) including X and Y. She has a sister in (omitted) and it is her intention to permanently reside in Brisbane. The grandmother agreed she would return on an ad hoc basis to see her grandchildren in (omitted), that she has significant ties to (omitted) and “I will travel to (omitted) to help with the children as I always have.”
The grandmother has cared for the children, whilst Ms Leach has been in (omitted), for about three days since she has moved to Brisbane. The grandmother attended Y’s award day on 1 December 2015. She has had some wonderful overseas holidays in the last five years. I do not know what the relevance of that questioning was. However she was clear “I have no intention in the short term, at least for 12 months, of travelling.”
Mr N’s observations of the children and the relevant adults in their life are with weight and demonstrate that the children share a close, attached warm and comfortable bond with all the adults.
Ultimately he agreed in cross examination that the children can maintain a relationship with their father despite less time and that they can maintain a relationship with their father over distance because of the strength of their relationship with the father. However he went on to say that the children’s relationship with their brother, A, would be diminished. That may be as he is only two and a half.
Mr N did not even know what the mother’s proposal was at the family report interview. He did not explore it at all with her. He only explored the father’s position and dismissed the mother’s position. As Mr N did not take account of the mother’s proposal that had to be done by Mr Kenny in cross-examination. When he heard what it was: alternate weekends, one in (omitted), one in (omitted), more than half the school holidays, special occasion days and the like, he agreed this arrangement would preserve the integral relationship the children had with their father.
Mr N agreed he did not address the impact upon the mother if she had to remain in (omitted). He did not admit he was running late but how would he know that as he recorded no times. I accept the mother’s evidence on this point.
He agreed he made an assumption that the mother had relocated to Brisbane when she has not. The mother is working in Brisbane. He did not explore with Ms D or the father their capacity to move from (omitted) closer to where the mother proposes to move.
This is a significant deficit as the law is that I must explore that possibility. He agreed he did not explore these issues with the father and Ms D. His report is significantly flawed and I am unable to attach any weight to his recommendations due to these significant deficits in his assessment.
He raised in his report that there ought to be a non-denigration order when no parent has ever raised this issue. However it may be it was raised by him as he could see the deteriorating parental relationship worsen if the mother is to remain in (omitted).
He was asked if he agreed “If this parental alliance and their capacity to cooperate deteriorated because the mum wasn’t able to contain disappointment and resentment as a result of living in a place she didn’t want to live in and having career and other opportunities stifled, it would be a pretty difficult outcome for the children to deal with it, wouldn’t it?” “Yes”, he said.
I was referred by Mr Kenny to a decision of my brother Judge Brown in Clement & Clement[1]. It is a very thorough case concerning relocation where a mother wished to relocate to Melbourne from Adelaide. Ultimately his Honour determined that on the balance, that was the preferred option as the best order in the children’s best interest.
[1] Clement & Clement (2014) FCCA 1664
The mother in Clement told the Court that if the Court would not let her remove the children to Melbourne she would have to leave because of how she was feeling. That is not the case here; however, other than that the similarities in this matter and the matter of Clement are stark: good parents, good prior cooperative parenting arrangement, good relationship, significant and substantial time being spent by children with each parent, children doing well. As his Honour says at paragraph 66:
“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 children have separated and, for legitimate reasons, wish to take different directions as to where they will live in future....no matter how the case is ultimately resolved, one party will feel inevitably harshly treated by the Court decision. This, of itself, has the potential to drive further conflict between them”.
It was noted by the father in his affidavit at paragraph 36:
“On more than one occasion I’ve discussed with my wife, Ms D, whether or not I should just let Ms Leach take the children to Brisbane because I’ve been so concerned about the effect on them, particularly X, of things being said to him and what appears to be the responsibility being placed on him to persuade me to agree to the move.”
His Honour goes on to describe the pathway:
“In U & U the High Court indicated that a first instance court was obliged to give careful consideration to the proposed arrangements put forward by each party, but was not specifically bound by them. As the best interests of the child concerned remained the paramount consideration, it was incumbent upon the Court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than necessarily first considering restraining the parent who wished to relocate the child from moving.”[2]
[2] Ibid, paras 107-108.
This is one of the important matters Mr N failed to address. Fortunately, Mr Kenny addressed it and I accept the father has no intention of moving closer to Brisbane from (omitted). I accept that is his position.
Unfortunately, as with this case and in Clement since the spectre of the relocation was raised the parents’ relationship has deteriorated, the relationship is difficult, fraught with powerful emotion and the parental relationships now present problems that they previously did not present, and each parent thinks they are going to get an advantage over the other.
His Honour refers to the decision of Gaudron J in U & U[3] where she states:
“...how courts might subconsciously approach relocation issues, when raised by mothers. It is sometimes said that it is part of the duty statement of being a parent that one will subjugate one’s personal aspirations and desires to what is seen to be best for one’s children. That is what it is to be an ideal parent or mother. Mothers are not required to soldier on regardless with a stiff upper lip if it is perceived to be the right thing to do for the children concerned.”
[3] U & U [2002] HCA 36; (2002) FLC 93-112.
His Honour said one might assume that Mrs Clement was being selfish because she was going to go and live in Melbourne regardless of where her children would live even if she believes such an outcome would be detrimental for the children. However, his Honour did not regard the mother as selfish, and found she was a fine and selfless parent.
As in Clement, this mother has clearly thought about all the options and weighted up the pros and cons with her children’s needs well ahead in her mind. The mother says moving with her to Brisbane will enable her to maintain full-time work and ultimately daytime work to care for her children and that this is the best option with what is going in (omitted). It is not a flippant plan, it is well thought out. The mother has put the basic foundations in place already, secured accommodation and has a job, all of which she will abandon if she is not permitted to re-locate.
There is no criticism of the mother in her desire to move despite the father and Mr N’s positions. They are both wrong. The family report in the matter of Clement favoured the mother moving. It was a report that considered all the options and carefully weighed up the competing proposals of the parties and the consequences upon the parents’ functioning and, therefore, upon the children of any of the competing proposals being ordered by the Court.
The family report in this matter only considered one proposal, the father’s proposal that the children remain in (omitted). Nothing else was considered by the report writer.
His Honour then goes to discuss the law and firstly to Section 60B(1):
“Ensuring... children have the benefit of both... parents having a meaningful involvement in their lives to the maximum extent consistent with the best interest of the child….
… Protecting children from harm.”
This is not an issue here, nor in Clement.
His Honour then discussed Section 60B(2):
“Children have the right to know and be cared for by both... parents... spend time on a regular basis... and communicate... with each parent... parents jointly share duties... parents... agree about the future parenting arrangements... children have a right to enjoy their culture.”
Quoting from the decision of B & B: Family Law Reform Act (1997) FLC 92-755 his Honour says:
“The Court’s enquiry is a positive one tailored to the best interests of the particular children and not children in general.”
One of my first tasks is to determine whether there should be an order for equal shared parental responsibility. Both parents contend for that, and there is simply no reason why that order would not be made. Having determined to make that order enlivens consideration of whether the children should spend equal time or significant and substantial time with either of their parents.
They currently spend substantial time with their parents, which arrangement can continue if they permanently reside in (omitted).
Despite Mr N’s recommendation of equal time, I find such an order would be a contradiction to the children’s best interests at this time. I do not see that the evidence supports an equal time arrangement, given the poor parental communication at this stage and the breakdown of their prior good parenting relationship that the mother has lost significant trust in the father and her family and the poor relationship she and Ms D now have. Most significantly is X’s clear inability to be apart from his mother for any lengthy period of time. X misses his mother, has to return early to his mother now, and he wants to live with his mum.
The continuation of significant and substantial time can only occur if the children remain living in (omitted) as the making of such an order must be both practical and realistic and in the children’s best interests as the High Court said in MRR & GR[4] having regard to the section 60 CC[5] factors.
[4] MRR v GR [2010] HCA 4; (2010) 240 CLR 461
[5] Family Law Act 1975 (Cth) s.60CC
In Clement & Clement[6] His Honour Judge Brown went on to say;
[6] Above n 1, para 374.
“In AMS & AIF Kirby J set out nine general propositions derived from relevant authorities concerning relocation -
· Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
· As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
· Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
· Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
· However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
· One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
· Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
· When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangement are in the best interests of the child concerned.
· The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.”
This decision was brought down well before the change to the Family Law Act in 2006.
There is now a pathway that I must follow and as set out Goode & Goode.[7]
[7] Goode & Goode (No. 2) [2007] FamCA 315
A relocation application is a parenting matter. The fact of the relocation and its consequences is a part of the factual matrix the Court is tasked to consider
The Full Court in Goode & Goode says the Court should:
“...consider positively the making of an order of an equal time if the conditions in... 65DAA(1)(a) and 65DAA(1)(b) of reasonable practicability best interests are met.”
In Taylor & Barker[8], the Full Court said:
“We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court.
However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.”
[8] Taylor & Barker [2007] FamCA 1246, para 81
Significant and substantial time has been in these children’s best interests. It is the care arrangement they have flourished under. Their Honours went on to say:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.
Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.”[9]
[9] Taylor & Barker [2007] FamCA 1246 para 82-83
In Clement & Clement at paragraph 384 Judge Brown went on to say:
“In Taylor & Barker the Full Court indicated that the outcome in a case containing a relocation would usually emerge after a consideration of the second limb contained in section 65DAA, namely what is reasonably practicable in all circumstances of the case concerned, which is necessarily a different consideration to what is hypothetically in the best interests of the children concerned.”
The children spending substantial and significant time with each of their parents is hypothetical in this case if the mother is permitted to relocate. Although this is an order in the children’s best interests if the mother is permitted to relocate it is not practicable or reasonable. Going to the decision in MRR v GR[10] at paragraph 387:
“The presumption of equal shared parental responsibility is not of itself determinative of whether there should be either an equal time or substantial and significant time regime. That outcome is dependent on the application of both considerations... and each must be answered in the affirmative....are the outcomes objectively feasible to put in place in all the circumstances of the case.”
[10] Above note 4.
If the children re-locate and as the father will not move closer to his children only if they remain in (omitted), how can significant and substantial time continue?
I must, as in MRR & GR, give consideration to the mother’s individual circumstances before I can come to any decision about whether remaining in (omitted) to enable the children to continue significant and substantial time with their father is ultimately and order in their best interest.
In Clement & Clement Judge Brown stated at paragraph 403:
“In U v U Gaudron J (who was in dissent) said as follows, in respect of the dilemma created by such a situation, particularly from the perspective of a mother:
“… it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.””
Mr N’s report failed to separately evaluate the competing proposals.
Mr N would do well to heed the words of Gaudron J and Hayne J in U & U. In particular Hayne J stated in U v U :
“If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
As Kay J pointed in Godfrey & Saunders[11] and reading from Brown J’s judgment at paragraph 422;
“What the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
[11] Godfrey & Saunders (2008) FLR 287
Mr N did not address at any level the capacity of the children to maintain a meaningful relationship with their father if their mother relocates with them to Brisbane. His report is silent and he merely opines that the relationship will diminish because they will spending less time with their father.
Going to the legislative pathway and considering all the competing proposals including the mother and father’s personal circumstances.
I will not rebut the presumption of equal shared parental responsibility. The parents do not seek that order and nor would it be an order in the children’s best interests. Whether the parents live in (omitted), Brisbane and (omitted), that responsibility can be shared and should be shared.
Having so found I need consider whether there ought to be an order for equal time or significant and substantial time. An order for equal time is not supported on the evidence. X struggles now at times to maintain the six/eight care regime he is currently in and he clearly wants to live with his mother; Y is different. However, these children must be in the same care regime with each of their parents.
An order for significant and substantial time is an order in the children’s best interests. They have flourished under that care regime and that is the care regime they are in. There would be no challenge or change to that if they remain living in (omitted). That regime of time cannot continue if the mother’s relocation to Brisbane is successful, therefore, I must now go to consider the factors under section 60CC(2) and (3) of the Act to determine what order is in these children’s best interests.
These children benefit from a meaningful relationship with each of their parents. They are competent, caring, loving parents. Unfortunately, their relationship has significantly deteriorated and their communication is very poor at present and this may continue. This has occurred for various reasons: the mother wishing to relocate to Brisbane and not telling the father before the children became aware of this. He is hurt and alarmed at that prospect. The father then engaging as many people as he could in (omitted) to assist him in his battle to ensure the mother could not move, being a former fiancé of the mother and two of her siblings.
Those actions may have done irreparable damage to the mother’s relationship with her siblings. It has caused her concern about working in a (workplace omitted) where her former fiancé, an (occupation omitted) works and that is one of her significant reasons for wishing to move to Brisbane.
There was no family violence, poor behaviour, neglect or abuse.
In relation to the wishes of the children, each of the children, X in particular, are quite positive about a move to Brisbane. He is ready for change. Y would not mind where she lived. She could live in (omitted) or Brisbane but it is clear from the family report X wants to live with his mother.
His mother is his primary attachment figure. This was confirmed by the father and Ms D in cross-examination as well. I accept the children may not understand the full impact of living in Brisbane and not seeing their father, Ms D and A as frequently as they do now or the for the same time periods.
The nature of the children’s relationship with each of their parents and significant others. The children have a close, loving, attached, meaningful relationship with their mother and their father. Their mother has been their primary carer. They have a close and supportive relationship with Ms D. Y is conflicted with that in that she really loves Ms D but Ms D and the mother’s relationship is very poor at present and Y may have some conflict issues surrounding those loyalties.
The children have an excellent relationship with their little brother, A and enjoy their time with him and that is an important relationship that they maintain. They have a relationship with their extended maternal family in (omitted) which their father has maintained. This has come at the expense of the mother’s relationship with her siblings. The children’s primary attachment is to their mother. She is their closest emotional figure, she has always cared for them and they have always lived with her.
X in particular, is very attached to his mother. The children have a close and supportive relationship with their maternal grandmother who now lives in Brisbane and has supported and assisted the mother to be able to work in a separated situation in (omitted) and in Brisbane, and those relationships are important to the children.
Provision of financial support for the children. Each of the parents supports the children. The father is critical of the mother saying, “She wishes to pursue her career and finances are important to her.”
At paragraph 37 of the Father’s Affidavit:
“X says, “Mum says it’s important to work hard at school so you can get a good job and earn a lot of money.” I am of the view it is more important to be a good and decent citizen.”
There is a difference in approach to these matters. The mother is desirous of maximising the children’s education, exposure to extracurricular activities etcetera. The father takes a somewhat more parsimonious view and payment of money for children’s extracurricular activity and school fees is a bone of contention for him. However, each parent supports the children to the best of their ability.
Likely effect on the children of any change in their circumstances. This is a very significant matter which unfortunately Mr N only looked at half of the equation. If the children remain in (omitted) with their mother there is no doubt their mother will be upset and unhappy. The depressive illness she suffered some years ago from which she has recovered may recur. Mr N had to agree an unhappy mother is not the best mother.
These children will suffer from their mother’s unhappiness in having to live in a town she does not want to live in, work at a (workplace omitted) where she is concerned about coming into contact with Mr D, where two of her siblings have, to use the colloquial, are in the father’s camp, where she cannot get on with her life, as she deems it appropriate and without the full-time support of her mother as she has had in (omitted) and can only have in Brisbane as that is where her mother lives.
Such an injunction on the mother’s freedom of movement to Brisbane may have a deleterious effect on her hitherto high level of functioning as a parent and would have a negative consequence upon her parenting of the children particularly X who is closely aligned with his mother.
X may resent his father for stopping the move particularly if his mother’s unhappiness become emboldened over time and that may undermine his relationship with his father
The father will maintain, what has been for him, the happy medium. If the children are removed to Brisbane with their mother they will lose the weekly time they spend in their father’s home every Thursday night and for one weekend to Tuesday morning.
They will lose the weekly contact they have with their little brother A and their father’s wife, Ms D, which for them is a source of comfort and support and they clearly enjoy her company.
They will need to relocate to new schools and will lose their friendships and the extracurricular and sporting activities they are engaged in in (omitted). However, each of the parents agree these children can cope with change. Each of the parents agree the children will have new extracurricular and sporting activities in Brisbane and X is ready for some change.
However, there will be an impact on the children’s relationship with their father as they simply will not have their dad in their life as they have had. He will not be able to turn up at the school and pick them up from the school as he does now and it will be a significant change for them. Whether that has a deleterious effect into the future I cannot say for as Mr N said, we have no crystal ball we cannot say but there will clearly be a significant impact on their relationship. It will not be the optimal relationship it is now however, it will always be a beneficial and meaningful relationship because it is such a strong relationship.
Practical difficulty and expense of the children spending time in communicating with each of their parents. Remaining in (omitted) will present no difficulty because they are living in the same town. The mother relocating to Brisbane does present difficulty for the children. There is a five to six hour one way trip to Brisbane from (omitted) for the children to spend time with their father one month a weekend as the mother proposes, she is to do the driving.
There is the three or so hour round trip from Brisbane to (omitted), where Ms D’s parents have a farm for the children to spend time with Ms D and the father and A on the alternate weekend. It may be that Ms D’s parents ultimately do sell their farm and that option will no longer be available for the family. There will be the expense and long trips or the children in spending school holiday time with their parents. I am certain that the parents will make these arrangements work.
These parents have good motor vehicles and can do the driving. The children are used to driving these distances. They did it with their father to establish their relationship with Ms D and that did not seem to cause a problem. However, there is a practical difficulty and expense in the mother’s proposal which is not in the father’s proposal of the children remaining in (omitted).
Capacity of parties to provide for the children’s emotional and educational needs. Each parent has that in spades, however, for X his mother is his closest emotional attachment.
The children’s maturity, sex, lifestyle and background. These children are regular, normal, happy-go-lucky and well cared for children.
Whether it would be preferable to make an order that would be less likely to lead to institution of further proceedings. Whichever order I make I am unable to say whether this would be a factor.
Any other relevant issues. I accept totally the mother’s position she can no longer work in her chosen career of (occupation omitted) as she would wish in (omitted), due entirely to the poor behaviour, conduct and attitude of Mr D.
That Mr D was brought into this imbroglio by Ms D is a significant error of judgment on her part. It has done nothing other than further cement for me the real fear, humiliation and concern that the mother has in meeting this man, who takes a view that the mother should not feel frightened of him, she earns a good income and she is not looking at the best interests of her children in taking them to Brisbane.
Secondly, the fact that the mother’s siblings have been feeding information to the father was clear from the cross-examination of the mother by Ms Smith, has damaged her hitherto good and supportive relationship with her siblings.
The mother has no family support in (omitted) now. Her main support, her mother, is in Brisbane and that I accept is where her mother is going to stay and I accept that is where the mother wants to be and needs to be in order to financially maintain her children and at the same time, have the support to do that. The poor relationship that the mother and Ms D now have come about because of Ms D’s actions with Mr D.
The father and Ms D countenance no change. They will not move. They want things to stay as they are.
In conclusion, I support the mother’s position that it is an order in the children’s best interests they move to her for Brisbane. This is where the mother’s supports are. This is where her work is. She cannot continue to work in her chosen career in which she has an established reputation and knowledge and experience in in (omitted) due to Mr D’s behaviour and the father aligning Mr D in his camp and using the mother’s siblings to provide information for him to support his case.
The children will always maintain their meaningful relationship with their father. They will always have the benefit of that meaningful relationship with their father. The orders put forward by the mother provide for the children to have alternate weekend time with their father, more than half the school holidays, Skype time, telephone time and the like and each of these parents agree that although they would be devastated they can make the arrangements work for their children and they will make those arrangements work.
The consequences for the mother’s functioning if she is to remain in (omitted) with having to find different work or put up with coming into contact with Mr D may have a serious impact upon her functioning and parenting of the children which could be disastrous for them and in particular X.
Mr N’s family report was of little assistance to me in the recommendations as he failed to take account of the impact upon the children of their mother living in (omitted), unhappily, parenting them on a primary basis. This would be the most devastating consequence for these children: an unhappy, disgruntled mother who may not be able to protect her children from the resentment she would feel in not being able to move, not be able to work in her chosen career because of Mr D and without her family support due to the father’s involving them in this dispute.
For those reasons I find favour with the mother’s proposal that she be permitted to permanently remove the children’s place of residence from (omitted) to Brisbane forthwith with the children.
I certify that the preceding two hundred and fifty-three (253) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 11 April 2016
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