Merritt and Merritt

[2017] FCCA 1057

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERRITT & MERRITT [2017] FCCA 1057

Catchwords:
FAMILY LAW – Parenting – relocation – allegations of family violence not made out – children’s right to a meaningful relationship with both parents at risk if relocation occurs – relocation denied.

Legislation:

Family Law Act 1975, ss.4AB, 60CA(3), 60CC(2), 65DAA

Applicant: MR MERRITT

Respondent: MS MERRITT

File Number: CAC 721 of 2015

Judgment of: Judge Hughes

Hearing dates:

20, 21 & 22 June 2016, 8 August 2016,

15 November 2016 and 1 December 2016

Date of Last Submission: 16 January 2017

Delivered at: Canberra

Delivered on: 26 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Page QC

Solicitors for the Applicant: Watts McCray

Counsel for the Respondent: Dr Brasch QC

Solicitors for the Respondent: Dobinson Davey Clifford Simpson

ORDERS

1. All previous orders relating to the children X born (omitted) 2010 and Y born (omitted) 2012 are discharged.

2. The wife’s application to relocate the residence of the children to (omitted) is denied.

3. The parties shall have equal shared parental responsibility for the children.

Arrangements during school terms

1. Until the commencement of the first school term in 2020, the children shall live with their mother and spend time with their father during school terms as follows unless otherwise agreed:

   (a)Until 1 July 2018:

   (i)every second weekend, from after school/preschool on Friday until the commencement of school/preschool the following Monday; and

   (ii)in the alternate week, from after school/preschool on Wednesday until the commencement of school/preschool on the following Friday;

   (b)From 1 July 2018:

   (i)every second weekend, from after school on Thursday until the commencement of school the following Monday; and

   (ii)in the alternate week, from after school on Wednesday until the commencement of school the following Friday.

2. From the commencement of the first school term in 2020 the children shall live week about with each parent with handover to occur at the end of school each Friday unless otherwise agreed.

Arrangements during school holidays

1. The children shall spend half of each of the shorter school holiday periods at the end of terms 1, 2 and 3 each year with each parent at times to be agreed or, failing agreement, for the first half with their father and the second half with their mother in even numbered years and the first half with their mother and the second half with their father in odd numbered years.

2. During the school holiday period at the end of term 4 in 2017 the children shall spend time with their father as follows:

   (a)from after school on the last day of term until 5pm on 22 December 2017; and

   (b)from 5pm on 4 January 2018 until 5pm on 21 January 2018;

   and the balance of the holiday period with their mother.

3. From 2018 the children shall spend half of the long summer school holiday period with each parent at times to be agreed or, failing agreement, for the first half with their father and the second half with their mother in holidays commencing in even numbered years and the first half with their mother and the second half with their father in holidays commencing in odd numbered years.

4. The children shall spend Mother’s Day with their mother and Father’s Day with their father each year and, if the weekend falls at a time when the children would not otherwise be with the relevant parent, such time shall be from 5pm on the Saturday until 5pm on the Sunday, unless otherwise agreed.

5. Unless otherwise agreed, all handovers of the children which do not occur at school or preschool shall occur at Marymead or, if Marymead is unavailable, at the entrance to the Woolworths supermarket at the (omitted) shopping centre.

6. Each parent may communicate with the children while in the other parent’s care by telephone/FaceTime/Skype each Wednesday and Sunday between 6:30pm and 7pm unless otherwise agreed.

7. Each parent shall facilitate any request by the children to communicate with the other parent at any reasonable time.

8. Each parent is at liberty to be fully involved in the school and extracurricular life of the children, to receive copies of school reports, newsletters and the like and to attend all events and functions to which parents are invited.

9. Each parent shall advise the other in advance of any medical, dental or allied health treatment they propose to obtain for the children and provide the other parent with full contact details and any authorisation necessary to allow the other parent to obtain full information from the treating medical, dental or allied health practitioner.

10. Each parent shall keep the other advised of their residential address, email address and mobile phone numbers and advise of any change to those details within 24 hours of the change.

11. Each parent shall advise the other in the event they propose to travel with the children away from the Canberra district for more than three days.

12. Each parent shall give the other at least two months’ notice of any proposed international travel with the children and, no later than 14 days prior to such travel, shall provide to the other the following:

    (a)a copy of the return tickets for the children;

    (b)a copy of the travel insurance for the children;

    (c)a detailed itinerary including the address and phone number of the accommodation in which the children will be staying; and

    (d)an emergency contact number for the duration of the travel.

13. The travelling parent shall ensure the children telephone the other parent at least twice each week during international travel and shall advise the other parent by text message of the safe arrival of the children back in Australia within two hours of arrival.

14. Otherwise, all parenting applications are hereby dismissed.

15. The property proceedings are adjourned to a date to be advised for mention and directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 721 of 2015

MR MERRITT

Applicant

And

MS MERRITT

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are property and parenting proceedings after a nine year relationship.  The major parenting issue is the wife’s desire to relocate from Canberra to (omitted) with the parties’ two young children.  The relocation is resisted by the husband.

2. The property aspects did not proceed on the basis that the parenting matters were likely to occupy all of the estimated trial time and the Court was advised the parties were confident of resolving the property issues once the parenting issues were determined.

Background

1. The applicant husband is a 39 year old (occupation omitted).  The respondent wife is a 38 year old (occupation omitted) in a (employer omitted). 

2. The parties commenced cohabitation in mid-2005 in (omitted), Queensland.  They were married on (omitted) 2007 and separated in either April 2014 (according to the wife) or May 2014 (according to the husband). Nothing turns on that difference.

3. The parties have two children:  X, born (omitted) 2010 who is now aged seven and Y, born (omitted) 2012, now aged four.

4. On 20 January 2009 the parties relocated from (omitted) to Canberra.  The husband had been working for the (employer omitted) and obtained a position in the (employer omitted) in Canberra at an income of $30,000 a year more than his (employer omitted) job.  The wife said she had not previously contemplated leaving (omitted), having lived there for twenty-one years and having a secure job and extended family and friends in the area.  She owned her own home in (omitted) and the parties owned an investment property there.  The husband said the parties had spoken at length about the possibility of living away from (omitted) for the greater opportunities they thought would be available for them and for the children they hoped to have in the future.  He said that one of the places the parties contemplated living was Brisbane.

5. The wife said that when the husband obtained the position in Canberra, the parties agreed to move for approximately two years.  She said that, before agreeing to go, she sought and received an assurance from the husband that it was only a temporary move.  She relied on a number of witnesses who testified that the husband told them that the move was either for two years or for a few years.

6. The husband said he never gave any sort of assurance that the move would be only temporary but nor did he say it was a permanent move.  He said that neither party knew whether they would like living in Canberra and they agreed to just see how it went.  He said they agreed they could always return to (omitted) if they did not like it.  He said that, subsequent to the move, he obtained more senior positions in the (employer omitted) and, were he to now return to (omitted), he would be required to take a job at a substantially lower level, with a commensurately lower salary, as the (employer omitted) has no presence in (omitted). 

7. Before the move to Canberra the wife had been working for (employer omitted).  She obtained a different position with (employer omitted) in Canberra.  She described it as a transfer but the husband said it was a completely separate job for which she had to apply.

8. The parties initially lived in rental accommodation in Canberra and then purchased a property in (omitted), New South Wales, about 20 km from the Canberra CBD.

9. Both children were born in Canberra.  The wife took twelve months maternity leave after X’s birth in (omitted) 2010.  The parties travelled to (omitted) in August 2010 and X was baptised during that visit.

10. In February 2011 the wife returned to work three days a week and X attended day care.

11. In July 2012 the parties decided to buy a property in (omitted).  The wife said they had to move out of their rental property as the landlord wanted to move back in.  She said the parties agreed to buy a property with a view to selling or renting it once they returned to (omitted).  The husband denied the parties had to move out.  He said the landlord rented the property to other people when the parties moved out.  He said he and the wife decided to buy a property because they wanted to settle into a home for the longer term.  He said they specifically chose the (omitted) property as it had room for a growing family.

12. The wife sold her property in (omitted) in September 2012 to generate funds for the purchase of the (omitted) property in October 2012.  The parties moved into it on 1 December 2012.

13. Y was born on (omitted) 2012.  The wife took fourteen months maternity leave following her birth. 

14. In January 2013 the wife and children travelled to (omitted) for two weeks.  The husband joined them part way through the visit.  Y was baptised during that visit.

15. In July 2013 the wife and children spent a month in (omitted).  The husband joined them for the fourth week.

16. In September 2013 the wife travelled to (omitted) for a long weekend, leaving the children with their father in Canberra.

17. This evidence indicates the parties, and the wife in particular, had a maintained a connection with (omitted).

18. The parties agree that the marriage began to deteriorate from mid-2013.  A significant issue between them became the wife’s desire to return to (omitted) and the husband’s desire to remain in Canberra.  The wife said the husband refused her repeated requests to move back.  The husband said there were no discussions or requests regarding a return to (omitted) prior to 2013.  However, he acknowledged during cross examination that in September 2012 he applied for a temporary position at the (employer omitted) in (omitted) but was not successful in obtaining it.  This suggests a move was at least within his contemplation at that time.

19. The wife said that the husband changed his conduct and attitude to her from mid-2013.  She said he became distant and cold which caused her to feel emotionally abandoned and isolated.  She alleged he ignored her and refused to speak to her for weeks on end.  She said she believed he had an extramarital affair.  She did not allege any physical violence apart from one incident in which she said the husband knocked over the children’s blackboard (which he said was an accident) and broke a coffee cup (which he denied).  The husband said the wife became increasingly verbally abusive of him from mid-2013.  He said she used offensive language, called him names, yelled at him and woke him up in the night to demand that he discuss their relationship.  He said that on occasions she attacked him physically and hit him.  The wife conceded the verbal abuse but not the physical violence.

20. The parties each deposed to a number of incidents which demonstrate a difficult dynamic between them.  There is evidence of behaviour which does not reflect well on either party but which occurred in the context of a difficult marriage breakdown.  The wife described the behaviour of the husband as aggressive, intimidating, harassing and bullying.  Her counsel ultimately submitted that I should find the husband engaged in family violence.

21. Family violence is defined in the Family Law Act 1975 as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”.[1]  I was not persuaded that either party engaged in family violence as defined.  There appeared to be, at times, something of a power struggle between the parties, especially in the period immediately before and after separation.  Over time, the wife came to see herself as the victim of frightening and controlling behaviour by the husband but her reaction to many events appeared to be out of proportion to what occurred.  There are a number of instances which illustrate this but which would otherwise not warrant analysis in a judicial determination.

    [1] Section 4AB Family Law Act 1975

22. It appears on the evidence that the parties have very different styles of communication.  The husband seems to be a person who processes emotions internally and needs time to do so.  The wife seems to process emotions by speaking about them and seeking emotional support from others.  During the breakdown of the relationship the wife often wanted to speak to the husband about their issues and he often did not.  This appears to be the genesis of many of their arguments.

23. The wife agreed during cross examination that she was verbally abusive to the husband at times.  She agreed she used foul language, called him offensive names and called him a liar.  She agreed she also told X she should never marry a liar like her father.[2]  The wife expressed remorse for those statements and, in particular, for what she said to X.  There is no suggestion the husband has ever used offensive language towards the wife.

    [2] Transcript 21 June 2016 at pages 168 to 170

24. An incident occurred between the parties in the first half of October 2013.  The wife said she was trying to get the husband to talk about their relationship and about moving back to (omitted).  She said the husband told her he was never moving back to (omitted) as it was full of bogans.  The wife said that, as she walked past the husband who was sitting on the couch, she was so angry at his comment that she threw the small amount of wine left in her wine glass in his face and told him he was a liar.  She said the husband got off the couch, told her she had stained the couch and should clean it up.  She said she went to the bedroom crying hysterically.  She said the husband later told her that he intended to move out for a while to give them some space.  She said she tried to dissuade him but he refused to engage in conversation about it.

25. The husband recalled the incident occurring in about February 2013 rather than October 2013.  He said the incident began with a conversation about the issue of returning to (omitted).  He said he reminded the wife that they both agreed that (omitted) was not the best place to raise children.  He said the wife attacked him verbally by mocking him and saying he considered himself better than everyone else.  She then described Canberra as a hole.  The husband took issue with those statements and reminded the wife that her own brother said (omitted) is full of bogans.  He said he was referring to a statement made by the wife’s brother, Mr B, before the parties left (omitted).  He said the wife threw about half a glass of wine in his face, then threw the glass in the sink causing it to smash and some glass fell onto the floor.  He said he asked her to clean it up but she simply left the room.  He said he cleaned it up and slept in the spare room that evening.  He said he did not recall saying he would move out for a while.  

26. The wife complained that the husband increasingly left her to cope with the children alone.  She said that when she returned to work on 4 November 2013 after fourteen months of maternity leave, the husband went on a (hobby omitted) event that night rather than helping her with the children.  The husband denied that.  He said the wife returned to work on a Monday and his (hobby omitted) event was on a Tuesday.  He said he was home from work by 5.30pm and did not leave to attend the event until 7.30pm by which time the family had had dinner, both children were in bed and the wife had had a shower.  He said he was home by 9pm.  He said he regularly attended (hobby omitted) events for a couple of hours each week and the wife also engaged in her own activities including walking each week.

27. The wife said that on 18 November 2013 the husband told her that he would move out when he found a suitable place.  She responded that a better option would be for her and the girls to go to (omitted) for a while and the husband responded “Well if that’s what you want to do, do it”.  She said she became very distressed that evening and rang her mother who flew to Canberra the following day to spend some time with her.

28. On 20 November 2013 the parties exchanged emails about the wife going to (omitted) with the children.  The wife asserted the husband knew that she wanted to move back to (omitted) permanently and that he consented in his emails to her doing so.  That was denied by the husband.  He said he did not want the wife to take the children to (omitted), even for a visit, but felt powerless to do anything about it.  The wife annexed to her affidavit filed on 7 June 2016 the emails exchanged between the parties about the issue between 20 November and 27 November 2013.  The wife introduced the topic in her email of 20 November 2013 when she said to the husband (referring to her boss whose name is Mr D) “I am going to have a brief chat with Mr D about taking leave to head up to (omitted) with the girls.  Is that still ok?”  The husband responded that he did not object if that is what she wanted to do but said he did not know how it would work out financially with her not working when they still had to pay day care fees.  He asked how long she was planning to be gone for.  The wife responded “We’ll see what work says.”  The husband asked whether she was able to work from (omitted) and she replied that she did not know.  This email exchange illustrates that there was no clear plan.  There was certainly implied consent by the husband to the wife going to (omitted) with the children but nothing in the exchange suggests the husband had agreed to the wife moving on a permanent basis.  He clearly anticipated it was not going to be a short visit given his query about the wife working from (omitted) while she was there.

29. The parties had a heated dispute on 29 November 2013.  The wife said she had tried to initiate a conversation with the husband about saving the marriage and tried to initiate intimacy with him but he pushed her away and she felt humiliated.  She said that, after she made a comment to the husband about his parents’ marriage, the husband became extremely angry, accused her of overstepping the line and knocked over a blackboard and a coffee cup, breaking the cup, before leaving the house.  She said she was surprised and frightened by his anger as it was so unexpected.  She said she called her father who flew to Canberra the following day and on 1 December 2013 she and the children flew to (omitted) accompanied by her father.

1. The husband agreed the parties had a heated discussion on the evening of 29 November 2013.  He said the wife wanted to discuss their relationship late in the evening and his experience was that during such discussions the wife would become angry, abusive and lose control of her emotions.  He said on this occasion the wife began to yell and told him the marriage was over.  He said she accused him of being weak and questioned what kind of man he was.  He said he backed out of the room, accidently knocking over the children’s blackboard.  He denied knocking over or breaking a coffee cup.  He said he was trying to disengage from the wife and had decided to leave the house to let things calm down.  He said the wife pursued him and began pushing and pulling at him as he attempted to get into the car.  He said there was nothing about the wife’s behaviour which suggested she was fearful. He said he slept in the spare room that night.

2. The husband said the conversation about his parents occurred on a different occasion but in the same period.  He said the wife had initiated a conversation about returning to (omitted) when the girls were sitting at the dinner table ready for dinner.  He said he told her it was not the right time to talk about the issue because the children were present.  He said the wife became very angry and said words to the effect of, “I hope the girls don’t marry someone like you”.  She then said “I don’t know how your mother puts up with your father”.  He said he took that to be a reference to his father suffering from depression and was angered by the comment.  He told the wife she had overstepped the line.  He then went outside to calm down.  Again that night he slept in the spare room.  He agreed the wife and children went to (omitted) with the maternal grandfather on 1 December 2013.

3. The wife said she called her work supervisor once she arrived in (omitted) and told him that she had to leave Canberra urgently as she feared for her safety.  On either party’s version that seems to be an overstatement.  It also appears to be the beginning of the wife perceiving herself as being in need of protection from the husband.

4. On 5 December 2013 the wife’s general practitioner in (omitted) prepared a mental health plan for her and referred her to a psychologist for counselling.

5. The wife and children remained in (omitted) for two months.  The husband travelled to visit them on three occasions, the first being on Christmas Eve 2013.  The wife asked him to find alternative accommodation which he did.  He nevertheless spent the bulk of Christmas Day with the wife and children at the home of the maternal grandparents.  He left on Boxing Day to spend some time with his family in Victoria.

6. On 6 January 2014 the wife began working part-time in (omitted), having obtained approval from her employer in Canberra.  She worked three days a week and her parents cared for the children.

7. During January 2014 there was some rapprochement between the parties and they began communicating more positively.  They agreed to work on their relationship and attend marriage counselling.  In an email exchange at that time the wife made it clear that she wanted to resolve the issue of returning to live in (omitted) and that she would not be ready to return to Canberra until the parties compromised on a time frame for a permanent return.  The husband urged her to set that issue aside temporarily while they worked on the relationship. 

8. On 9 January 2014 the husband travelled to (omitted) and the parties attended marriage counselling.  The wife agreed to return to Canberra with the children.  The husband went back to Canberra but returned to (omitted) at the end of January to accompany the wife and children home.

9. The wife said that while in (omitted) the husband pointed out to her a four bedroom home for sale in (omitted), a suburb of (omitted).  She said she took that to be confirmation of his agreement to return to (omitted) and, in those circumstances, she agreed to return with him to Canberra.  However, the conversation about the (omitted) property occurred on 1 February 2014, the same day the parties returned to Canberra so the wife must have decided to return before the husband pointed out the home for sale.  The husband said that when living in or visiting (omitted) the parties sometimes drove through the suburb of (omitted) because they both liked the way the suburb was planned and were interested to see how it was developing.  He said he gave no indication that he was prepared to move back to (omitted).  However it is clear he knew it was a major issue for the marriage at that time.

10. The wife said that what she described as the husband’s change of behaviour for the better in January 2014 did not last long once she and the children returned to Canberra.  She said that after about three weeks the husband said to her “You could have slept with anyone while you were in (omitted)”.  The husband agreed he said that but it was in the context of the wife questioning him about whether he had slept with anyone while she was away.  He said he replied that he had not and made the comment that she could have slept with anyone while she was in (omitted).  I agree the context completely changes the nature of the comment.

11. The parties attended three sessions of marriage counselling in March 2014.  In early April 2014 they agreed to separate. The wife takes 12 April 2014 as the date of separation.  The husband takes 3 May 2014 as the date of separation as that was the day he physically moved out of the former matrimonial home.  The wife and children remained living in the home.

12. After separation the wife’s mother came to Canberra to stay on a regular basis to assist the wife and children.  The wife said she felt vulnerable and fragile and needed her mother’s support at that time. The maternal grandmother stayed from 16 June 2014 until 6 July 2014.  The wife and children then travelled with her to (omitted), staying until 14 July 2014.  When they returned to Canberra they were accompanied by the maternal grandmother who stayed until 11 August 2014.

13. After separation the parties initially managed to have a civil relationship.  They agreed the children would continue to live with the wife and spend two nights a week with the husband.  In one week each fortnight the husband collected the children from preschool and day care on Wednesday afternoon and returned them to preschool and day care on Friday morning.  In the other week each fortnight he collected them from preschool and day care on Friday afternoon and returned to the former matrimonial home on Sunday afternoon.  At the wife’s invitation he stayed for a cup of tea on one occasion and for a meal on another.  In August 2014, about three months after separation, while at the former matrimonial home the husband asked the wife if he could take some more of Y’s clothes as he did not have enough.  In particular he wanted to take a jumpsuit for Y to sleep in as he only had one.  The wife refused, saying that would leave her with only one.  The parties argued.  The husband went into Y’s bedroom and took a jumpsuit over the objection of the wife.  The wife demanded he leave and said she would call the police.  He left.  The wife called the police but no action was taken as no offence had been committed.  The wife said that before he took the jumpsuit the husband was walking around the house making statements about it still also being his house and behaving in an intimidating manner.  Her friend, Ms A, was present and agreed with the wife’s description of the husband’s behaviour.  The husband denied acting in an intimidating manner but conceded he should not have taken the jumpsuit without the wife’s consent. 

14. This incident marks the beginning of a serious deterioration in the parties’ post-separation relationship.  From then on the wife insisted that the husband return the children to her at (omitted) rather than at the former matrimonial home.  The husband did not regard that as an appropriate handover point as there was no cover and no toilet facilities.  After an occasion on which X had to relieve herself in the bushes due to the lack of toilet facilities, the husband asked the wife to agree to him returning the children to the former matrimonial home on Sunday.  The wife told him the handovers would occur from then on at a McDonald’s restaurant.  The husband said he did not think that was appropriate either.  As a result of the impasse, (omitted) remained the handover point.

15. Occasionally the husband wanted to change the handover point for a particular reason, for example, when he wanted to collect camping gear from the shed at the former matrimonial home and on another occasion when he was caring for Y during the day in addition to the usual arrangements and wanted to return her to the wife at X’s school in (omitted) rather than driving all the way to (omitted).  On both of those occasions the wife insisted the handover occur at (omitted).  She said she found the husband’s requests to change the handover venue very stressful and distressing.

16. The wife said that she felt even more miserable and isolated in Canberra after separation and was increasingly anxious and frightened about interacting with the husband whom she experienced as bullying, harassing and intimidating.  Her general practitioner prepared a mental health plan and referred her to a psychologist in Canberra.

17. The husband also struggled emotionally with the end of the relationship and he too obtained psychological assistance. 

18. On 21 July 2014 the wife instructed solicitors to send a letter to the husband proposing a property settlement.  She said she then received a telephone call from the husband expressing his anger that she had involved lawyers.  She said he told her she would regret doing so.  The wife said the phone call was so concerning that on 29 July 2014, she had the locks on the house changed in order to protect herself and the children.  The husband said he was surprised to receive the letter from the wife’s solicitors as, the week before, the wife had phoned asking him to consider giving the relationship another chance.  He said that when he did not agree to reconcile, the wife became very angry and hung up.  He said he telephoned the wife when he received her lawyers’ letter as he was confused about why she was taking legal action.  His evidence is that he said something along the lines of they would regret involving lawyers.  He said the wife refused to discuss the issue with him.  He said the first he knew of the wife changing the locks was when he read about it in her affidavit as he did not ever attempt to access the property without her consent.

19. Between August 2014 and January 2015 the parties participated in a collaborative law process initiated by the wife.  They were unable to reach an agreement.  They both then instructed lawyers to commence litigation.

20. In late 2014 the husband commenced a relationship with his partner, Ms M.  The wife said she became very uncomfortable when she realised that members of the extended family of Ms M have children at X’s school.  The husband said he was not aware that anyone in Ms M’s extended family attended the school until the issue was raised by the wife.  He said he had never met those people.

21. Despite her discomfort, the wife has been involved in a large range of activities at the school and received a special award from the school at the end of 2015 in recognition of that work.

22. On 21 February 2015 the husband sent the wife a text message telling her he intended to take the girls camping at the coast on the weekend of 6 and 7 March and saying he would like to collect camping gear from the storage shed at the home.  He told her he would like to leave around lunch time in order to beat the traffic and to set up camp before dark.  The wife did not agree to him taking X out of school early.  She told him she would provide him with the camping gear if he gave her a list of what he wanted.  The husband said he could not remember every item he might need and repeated his request to access the shed.  He said he was sure to forget things unless he saw them.  He said in his oral evidence that, at the time, he was mindful that over the Christmas period at the end of 2014 the wife did not provide him with the children’s sun hats because he did not put them on a list of items he needed for a holiday with them.  He said that in February 2015 he reassured the wife he would simply collect the camping gear from the shed and go.  The wife refused, saying she was not comfortable with him coming to the house.  The parties argued and the husband threatened to attend the house without the wife’s permission to collect the items, saying the house still also belonged to him.  When he was next due to return the children, the husband told the wife he would return them to the house instead of (omitted) so he could get the camping equipment.  He drove with the children to the former matrimonial home and sent the wife a text message to say he was waiting for her.  The wife was already at the (omitted) and insisted he bring the children there.  He eventually did so.  Both parents alleged the other was very angry at the handover.  The wife telephoned the police and her friend, Ms A, before the husband arrived and asked them to come to (omitted) because she was upset and scared about what the husband might do.  The police asked whether she was concerned the husband may harm the children.  She responded that she was not concerned about that and told the police the husband was a good father.  Ms A arrived at (omitted) before the husband.  The police arrived after the handover had occurred and the husband had gone.  No action was taken by the police.

23. This incident was explored during cross examination.  The wife agreed that two months earlier, in December 2014, the parties were able to negotiate through their solicitors an arrangement for the husband to attend the home to collect some household contents.  The wife put the items in the garage of the property.  Although the house is accessible through a door in the garage, the husband did not attempt to enter the house.  The wife agreed the husband came to the garage, collected the items and left.  When asked why the same arrangement could not have been made two months later to enable the husband to collect the camping gear from the shed (which was completely detached from the house), the wife said that on the earlier occasion the door from the garage to the house was locked and her mother stood on the other side of the locked door with a phone, ready to call the police if the husband tried to enter the house.  She said that, on the day the husband wanted to access the shed in February 2015, she was unable to arrange for a support person to be there to assist her.  She was asked why she could not simply have removed herself from the property or remained in the house with all the doors and windows locked ready to call the police if the husband attempted to enter the house.  She was unable to give a satisfactory answer.  I note she was able to get her friend, Ms A, to attend the handover point at (omitted) on short notice that day.  Presumably Ms A could just as easily have gone to the house.  The husband suffered great frustration given his desire to have the appropriate equipment to ensure a successful camping trip with the children.

24. Ultimately, the husband gave the wife a list of items and she provided them to him at handover of the children.  The husband collected the children from school and day care at lunch time, ignoring the wife’s objection.  The husband complained during the trial that he had never received the balance of his camping equipment, most of which he had owned prior to the commencement of the relationship.

25. On 20 May 2015 the husband sent the wife an email seeking her agreement for him to come to the former matrimonial home to set up a particular toy given to him and the children by his family.  It was called a Mailman and could be set up to receive messages from and send them to particular phone numbers.  It would allow the husband to leave short messages on the toy for the children and they could also send short messages in return.  The device allowed different funny voices to be used.  The wife said she did not feel comfortable with the husband coming to the home to set up the device.  She said she was confident she could set it up and asked the husband to deliver it to Y’s day care for her to collect.  After some further discussion the husband provided the Mailman toy to the wife but she never set it up.  The husband said he was wary of asking her about it because of her allegations that his persistent communications were a form of harassment.

26. During cross examination the wife agreed she had never set up the toy despite her assurances to the husband that she would.  She said she spoke about the issue to Dr H, a psychologist the parties had seen as part of the collaborative law process.  She said she had concerns about behavioural issues in X at the time and was worried about the potential disruption of extra contact between the children and their father.  She said Dr H told her she would speak to the husband about what his intentions were concerning the use of the toy.  The wife did not tell the husband about her conversation with Dr H and did not ever check whether Dr H had spoken to the husband.  Dr H did not speak to the husband about it.

27. On 1 December 2015 the wife sent the husband an invitation from X’s school to the kindergarten nativity play due to be performed on Tuesday 8 December at 2pm.  The husband said X was very excited about the play as she had a speaking role and asked him many times if he was coming to watch her.  The husband instructed his lawyers to write to the wife’s lawyers seeking her agreement for him to attend as the children were due to be with the wife on the relevant day.  He received a reply on 7 December 2015, the day before the play, which indicated the wife did not feel comfortable with him attending as she had been unable to arrange for one of her usual support people to attend the concert with her.  The letter pointed out that the husband had the opportunity to see a dress rehearsal when X was in his care on 3 December 2015.  The husband said he had no idea that parents were able to attend the dress rehearsal.  His solicitors wrote to the wife’s solicitors suggesting that he could arrive a little late to the performance to ensure the wife had already taken her seat and he would not sit near her or interact with her.  He offered the names of the parents of several of X’s friends with whom the wife could sit to improve her comfort or safety.  The wife’s solicitors responded, simply saying the wife did not consent because she did not feel comfortable with him attending the school that day.

28. In light of the wife’s objections, the husband did not attend the play.  He was distressed about that.  When X asked him why he did not come, he gave her the false impression that he was stuck at work.  During her oral evidence the wife agreed the husband was very child focused in not blaming her, instead allowing X to think he was simply too busy to attend.

29. A month earlier, on 28 November 2015, X was performing in a ballet concert at the (omitted) during a weekend she was in the husband’s care.  The husband watched instructional videos on YouTube to learn how to do X’s hair and makeup.  He took X to the venue as required at 12:30pm and then took Y to get some lunch.  When he and Y returned to watch the concert at 1:30pm the husband noticed the wife sitting with her mother in the audience, close to the stage.  He said he deliberately sat with Y towards the back of the venue to avoid interaction with her.  At the end of the concert he collected X and they all left.  He said Y was unaware her mother was at the performance.  During her oral evidence the wife was asked how she could manage that event, knowing the husband would be present, but could not cope with him attending to see the school play the following month.  She said she had her mother with her for support at the ballet and had spoken to her psychologist to learn methods to help her manage it.  She also said that, because the (omitted) is such a big venue, it was less likely she would run into the husband.  That explanation was not persuasive.  Although there are differences in the size of the venues, it seems clear that the wife was simply not prepared to miss out on seeing X’s ballet concert but was nonplussed about the husband missing out on seeing X’s nativity play.  I conclude that either the wife did not believe these events were as important to the husband as they were to her or believed that her need for protection from a vague and unspecified threat arising from the husband’s presence overrode it.  Neither reflected well on her.

1. The wife said that after she told the husband she felt uncomfortable with him coming to the house or to the school when she was present, he began to ignore her greeting of him at handovers on Sundays but would ask her in a sarcastic tone whether he was making her feel uncomfortable.  The husband denied that.  He said he asked the wife why she was uncomfortable.  He said he genuinely wanted to understand so that he could avoid doing whatever was upsetting her.  He said that at the handover during which he is alleged to have referred to the wife’s discomfort in a sarcastic tone, he was saying “I am not trying to make you feel uncomfortable”.  The evidence of the wife’s sister, Ms K, and her friend, Ms A, is consistent with the wife’s evidence and supports a finding that the husband was at times angry or sarcastic in his tone with the wife and at times did not respond to her greeting of him at handover.  At the end of the day, however, on either version he posed no threat to the wife, other than to her feelings.

2. The wife said the husband’s behaviour caused her to feel anxious and distressed every time she had to have anything to do with him.  Various of her witnesses said they saw the wife frightened and shaking when she had to deal with the husband in some way.  The wife said it became so bad that when the husband sent her a text message she often had to get someone else to read it first.  She said she often took someone with her to the handover of the children because she was worried about what the husband might do.  There is no evidence to suggest the husband would do anything to harm her or the children.

3. The husband said he was unaware of the wife suffering any anxiety or mental health issues until he read her affidavit filed in June 2015.

The proceedings

1. The husband commenced proceedings on 15 May 2015.  He sought an order for equal shared parental responsibility and that his time with the children increase from four to five days a fortnight.  He sought orders for the children to spend half of each school holiday period with him and ten days in July 2015 to enable him to travel to Victoria to visit his extended family.

2. The wife said that she was so anxious when she received the husband’s documents that she was unable to read them and had to send them to her sister who read them first and reassured her that there was nothing too bad in them. This reaction is surprising given the wife had also instructed her solicitors to commence proceedings. It just happened that the husband filed his application first.

3. The wife filed a response on 26 June 2015 in which she also sought the parties have equal shared parental responsibility.  She sought an order which permitted her to relocate with the children to (omitted).  If the husband also relocated, she proposed that the children continue to spend four days a fortnight with him and a gradually increasing regimen of block periods during school holidays.  If the husband remained living in Canberra, the wife proposed the children spend block periods of time with him.

4. Both parents filed a notice of risk in which each alleged there was no risk of harm to the children from the other parent.

5. On the first return date, 7 July 2015, the husband’s application to increase the fortnightly time with the children was denied but an order was made for the children to spend holiday time with him between 9 July and 16 July 2015.  The proceedings were adjourned to 25 September 2015 for hearing of the wife’s interim relocation application.  On that day the application was denied.  Interim orders were made for the parents to have equal shared parental responsibility and for the existing arrangements for the children to continue, namely, from Friday afternoon to Sunday afternoon in one week and from Wednesday afternoon until Friday morning in the alternate week.  Specific orders were made for school holidays and for special occasions including Christmas and Easter.  Handovers which did not occur at school or day care were to occur at Marymead or, if Marymead was unavailable, at the entrance to the Woolworths supermarket at the (omitted) shopping centre.

6. The orders of 25 September 2015 restrained the parties from attending school and day care other than when the children were in their care unless the other party consented.  They also restrained the husband from attending at the former matrimonial home without the written consent of the wife or an order of the Court.

7. The matter was listed for a final hearing for three days commencing 20 June 2016 and a family report was ordered.  Both parties also sought property orders and filed evidence in relation to the property issues.

8. On 16 June 2016, four days before the trial, the solicitors for the parties advised the Court that more than three days of hearing time would be required.  The Court was unable to accommodate more than three days.  The solicitors agreed that, once the parenting issues were determined, it was likely the property issues would be resolved by consent.  Accordingly, the issues were split with only the parenting application to proceed on 20 June 2016.  On the first day of trial, senior counsel for each party said they did not necessarily agree with their instructor’s views about the property aspect settling once the parenting issues were determined.  However, there was no time to accommodate a longer hearing and council elected to proceed with the parenting aspect only.  Unfortunately, even the parenting aspect was unable to be completed in the allocated time and the proceedings were adjourned part-heard.

9. The husband gave evidence and was cross-examined on 20 and 21 June 2016.  None of the husband’s other witnesses were required for cross-examination.  The wife gave evidence on 21 and 22 June 2016 and was cross-examined.  Her psychologist, Ms D, gave evidence and was cross-examined on 22 June 2016.  None of the wife’s other witnesses were required for cross-examination.  The proceedings were adjourned part-heard to 8 August 2016 when the family consultant, Dr F, gave evidence and submissions were made by each party.  The trial concluded that day.

10. On 11 November 2016, before the judgment was delivered, the wife filed an application in a case seeking leave to adduce further evidence.  She filed an affidavit in support indicating that her mother had been diagnosed with breast cancer.  She said her mother was unable to continue travelling to Canberra which meant she, the wife, was no longer able to receive direct practical assistance from her.  She also deposed to her great distress at her mother’s condition and her desire to be in (omitted) to join other family members in providing support and assistance to her.  She sought leave for the proceedings to be re-opened to take account of the new evidence in support of her application for a permanent relocation to (omitted) with the children.

11. The application in a case was listed on 15 November 2016.  I suggested that day that the matter could be dealt with by admitting the further evidence and allowing the parties to make written submissions about the impact of it on the substantive application.  The husband’s solicitors sought time to obtain further instructions from their client who had only had 24 hours’ notice of the application.  The application to re-open was adjourned for hearing, if required, on 1 December 2016.  A hearing was not ultimately required as, on that date, the parties agreed to orders which provided for the wife to file an affidavit from her mother’s treating medical practitioner by 16 December 2016 and for the husband to file any further material on which he sought to rely by 23 December 2016.  A timetable was set for each party to file written submissions during January 2017 about the impact of the new evidence.

12. On 1 December 2016, the husband was also given leave to file an amended minute of final orders sought because the original minute filed in June 2016 incorrectly referred to school holidays in the year 2017 where it should have referred to 2018.  As there were no arrangements in place for the upcoming Christmas 2016 school holiday period, I also heard submissions on behalf of each party in relation to the children’s time with each parent during the Christmas 2016 period.  Further interim orders were made and the proceedings were once again adjourned for judgment on a date to be advised.

13. The affidavit filed by the husband in relation to the fresh evidence went beyond what was permitted.  I have ignored anything not directly related to the maternal grandmother’s illness.  The submissions filed on his behalf also canvassed matters already dealt with in submissions at the end of the substantive proceedings.  Again I have ignored any submissions which relate to matters other than the new development.

The parties’ proposals

1. The orders sought by the wife are set out in her minute of orders filed on 16 June 2016.  She sought an order for equal shared parental responsibility and permission to relocate with the children to (omitted).  She gave evidence about a range of benefits she perceived for both her and the children in the event she was able to relocate.

2. The wife proposed that she and the children would initially live with her parents in their five bedroom home in (omitted).  She said she would rely on her parents to assist with childcare to enable her to work.  The subsequent illness of the wife’s mother may have an impact on whether and for how long the wife and children would or could remain living with the maternal grandparents and the extent of the physical support her parents could provide. However, those matters will not affect the outcome.  The wife wishes to return to (omitted) primarily for emotional reasons – wishing to be close to her family and friends and to live in a familiar environment.  Whether she lives with her parents or elsewhere in (omitted) is immaterial.

3. The wife’s evidence is that she feels isolated, lonely and anxious in Canberra and relies very heavily on the practical and emotional support from her long term friends and family in (omitted).  She said she has no network of friends or family in Canberra.[3]  She alleged that her anxiety stems from the husband’s poor treatment of her and said she feels trapped by what she perceives to be the husband’s attempts to control her.[4]  She said she wants the children to have a mother who is happy and vibrant and “in a psychologically good place”.  The wife’s case is that if she is permitted to move to (omitted) her anxiety will reduce, she will become a stronger person with the support of her family and she will be able to cope more effectively with interaction with the husband.  The evidence of her psychologist, Ms D, was that the wife suffered an adjustment disorder after separation but it had resolved by the time of the trial and she was no longer suffering clinically significant anxiety and depression.  Despite this, the wife’s evidence was that she still felt unable to face the thought of dealing directly with the husband.  She relied on the evidence of a range of people who said they saw her distressed when having to deal with him.  However the wife was at pains to point out that her distress and anxiety had not affected her capacity to care for the children.  She said she is very committed to obtaining appropriate support to look after her own mental health and to parent the children effectively.[5]

   [3] Transcript 21 June 2016 at page 188

   [4] Affidavit of the wife filed 7 June 2016 at paragraph 90

   [5] Transcript 21 June 2016 at page 189

4. It is clear on the evidence that the wife has a close connection to (omitted) and a range of people who live there.  She has a long standing and genuine desire to return to her home town which was clearly expressed to the husband prior to their final separation. 

5. The parties agree on which school and day care the children would attend in the event the wife is permitted to relocate with the children.[6] In that event, both parties proposed that the children spend block periods of time with their father during school holiday periods and extra time during school terms if the husband is able to travel to (omitted).  The wife said she would accompany the children to Canberra or Melbourne at the beginning of time with their father and proposed the husband accompany the children back to (omitted) at the end of each period. She proposed that the children travel unaccompanied from the commencement of the 2019 school year.  She proposed the parties share the costs of the travel including the cost of the adult flights but that the husband bear the full costs of his own travel to (omitted) for extra periods of time with the children.

   [6] Transcript 20 June 2016 at page 55

6. The wife proposed handovers in (omitted) occur at the (omitted) library.  She said the children are familiar with library environments generally and it would be a calm and reassuring place for them and safe for the wife who proposed to also bring a support person with her to each changeover.

7. The wife proposed that handovers which do not occur in (omitted) happen at the airport in Canberra or Melbourne which are open, public venues and she said she would have a support person travel with her.

8. The wife said that if she is not permitted to relocate with the children she will not move.  In that scenario she proposed that the children spend time with their father in accordance with the existing arrangements, namely for two days each week, until the commencement of term 3 in 2017.  She proposed that, from term three in 2017, the time increase by one day per fortnight so that in week 1 the time would be from Thursday to Sunday rather than from Friday to Sunday.  However, if the time is to increase by one day, it would be better for it to occur from Friday afternoon to Monday morning (rather than Thursday afternoon to Sunday afternoon) to avoid direct handover between the parties.

9. The wife proposed that the time in week 2 remain as it is, resulting in a total of five days a fortnight.  She proposed no further increase but, from the commencement of the 2019 school year, proposed that the time be consolidated to occur from after school on Wednesday until the commencement of school the following Monday with no time in the alternate week. That proposal has the advantage of allowing the children to settle for longer blocks of time with each parent.

10. The wife proposed that, until 2019, the same arrangements apply during the shorter school holidays as apply during school term.  That would mean the children spend a maximum of three days at a time with their father in each of the shorter school holidays for the next two years.  Such an arrangement would preclude a range of holiday activities including travelling for a week to Victoria.  I see no reason why the children should not spend at least seven days with each parent during each school holiday period. The wife proposes the children spend two blocks of seven days with their father during the long summer holidays so it is not a case of her believing the children would not cope with being away from her for a week at a time.

11. From 2019 the wife proposed the children spend half of the shorter school holiday periods with their father and two separate periods of ten days during the long summer holidays, with the Christmas period alternating between the parents each year.

12. The wife said she was relieved when the handover point was changed in September 2015 from the (omitted) to Marymead and said she would want the handover to continue at Marymead whenever it does not occur at school.

13. The husband gave various reasons for opposing the relocation of the children to (omitted).  He said the children were happy and settled in their routines, had good friends and enjoyed school and day care and their extracurricular activities.  He asserted the educational opportunities for the children are fewer in (omitted) than in Canberra but there is no cogent evidence about that.

14. The husband said the most important reason for him opposing the relocation was the effect the relocation would have on the children’s relationship with him.  If the children relocated and he did not, the children would no longer spend time with him each week.  The husband said he wished to be increasingly involved in the children’s lives and ultimately for the children to live for equal time with each parent.  That would not be possible with the parties living 2,000km apart.  

15. The husband said the children were still adjusting to not living with him on a full-time basis and he worried about the disruption the move would cause to their developing relationship with him.  He said he feared that the wife would gradually exclude him from the children’s lives if they lived in (omitted).  He said his fear is based on the wife’s inflexibility about minor changes to the children’s arrangements, her lack of generosity in facilitating extra time and her tardiness in responding to simple emails concerning the children.  The husband said he did not think the wife’s family would have a moderating effect on her as they appear to accept everything she says and try to “protect” the wife from him.  He said he was worried about the general attitude to him that would be obvious to the children in the home of the paternal grandparents with whom the wife and children would live when they first relocated.

16. The husband is employed at (occupation omitted) level in the (employer omitted).  There are no equivalent positions in (omitted) and the (employer omitted) has no presence there.  He previously worked as a (occupation omitted) for the (employer omitted) but said he had very few opportunities for further advancement at the time the parties relocated to Canberra.  He said that the work he could most likely obtain in (omitted) if he returned was as a (occupation omitted).  He said that such a position would involve a lot of manual labour including (duties omitted).  He said such a position would also pay approximately $40,000-$60,000 less than his current position.  He pointed to the significantly higher rate of unemployment in (omitted) than in Canberra and pointed to the fact that he was unsuccessful in applying even for a temporary position in the (omitted) in 2012.

17. The husband said that if he remains in Canberra he is hopeful of receiving a promotion to (occupation omitted) in the future.

18. The husband’s partner, Ms M, has a career in Canberra and her children and grandchildren live here which would make a relocation very difficult if the husband wanted to maintain a relationship with her.

19. When pressed during cross examination, the husband said that, even if the wife is permitted to relocate with the children, he would not move from Canberra.[7]  Senior counsel for the wife submitted that this meant the husband expected the wife to make all of the emotional and practical sacrifices to ensure the children have a meaningful relationship with both parents.  In my view either party’s position can be characterised that way.  Neither has an obligation to demonstrate compelling reasons for their position but they both have compelling reasons nonetheless.

    [7] Transcript 20 June 2016 at page 50

20. The husband estimated the cost of each trip to (omitted) to visit the children would be between $3,000 and $4,000 because it would include accommodation, car rental, child car seat hire and living expenses.  The husband stayed with friends when he travelled to (omitted) for short periods to visit the children when they were visiting the extended maternal family with their mother.  If he was able to continue to do that his costs would be reduced.

21. The husband also asserted it would be a lot more difficult for the children to have contact with the extended paternal family who live in Victoria if they lived in (omitted).  I do not accept that.  Although it is cheaper and easier to travel from Melbourne to Canberra than from Melbourne to (omitted), it became clear on the evidence that the paternal grandparents only travelled to Canberra once or twice each year.  Most of the contact the children have with the husband’s family occurs when he takes them to Victoria.  On either party’s proposals, that can continue during school holidays, although it would be more expensive from (omitted).

1. If the children remain living in Canberra, the husband proposed that the children spend time with him initially in accordance with the existing arrangement of four nights each fortnight.  He sought an increase to five days a fortnight from the commencement of the school year in 2017 and a similar incremental increase each year thereafter so that from the beginning of the 2019 school year the children would live week about with each parent.  During submissions on 8 August 2016, senior counsel for the husband said he was no longer pressing for an equal time arrangement to commence in February 2019 in light of the recommendations of Dr F.  That means that, on the husband’s proposals, the children would ultimately spend six days a fortnight with their father from Thursday afternoon to Monday morning in one week and from Wednesday afternoon to Friday morning in the alternate week.

2. For school holiday periods the husband sought orders for the children to spend ten days with him during the term 1 school holidays in even numbered years and ten days with their mother in odd numbered years.  He sought one half of school holidays at the end of terms 2 and 3 alternating between first and second halves.  For the summer school holidays at the end of 2017 he sought time from the end of school until 22 December 2017 and then again from 4 January to 21 January 2018.  He sought orders for the children to spend half of each long summer holiday with each parent from the end of 2018, alternating between the first and second halves.

3. The husband sought special arrangements for Mother’s Day and Father’s Day and telephone or Skype communication with the children on one day each week.

4. The husband proposed the children have telephone/FaceTime/Skype communication with him on three days each week.

5. The husband proposed a set of orders in the event the wife moved to (omitted) without the children but there is no need to consider that as the wife made it clear that she would not move if the children were not permitted to move with her.

The expert evidence

Ms D

1. Ms D is the wife’s treating psychologist.  She began treating the wife in November 2014 following a referral from the wife’s general practitioner for the management of anxiety and depression.  Ms D swore two affidavits in the proceedings.  The first, filed on 2 July 2015, annexed a report dated 30 March 2015 and an updating letter dated 25 June 2015.  The second, filed a year later on 7 June 2016, annexed a report dated 6 June 2016.

2. In her report of 30 March 2015, Ms D said the wife had seen her fortnightly since November 2014.  She said the wife presented as highly anxious, tearful and bewildered. She said she reported feeling intimidated whenever she has contact with her former husband, becoming fearful in advance of meeting him for handovers and feeling nauseous when she receives text messages or emails from him.  She said the wife felt deceived by the husband’s stated intention to return to (omitted), by him having an extra-marital relationship and by him not disclosing to her that children forming part of the extended family of his partner attended the school which he wanted the children to attend.  She said this meant the wife was reminded of the humiliation she felt at separation whenever she took the children to school.  She said the lack of social and emotional support for the wife in Canberra results in the wife feeling trapped and unable to move on with her life.  She commented that if the wife is permitted to return to live in (omitted), she would have access to support which will be helpful to her wellbeing and to the wellbeing of the children.  She said that if the wife is required to remain in Canberra “there is a strong possibility that Ms Merritt’s mental health and day-to-day psychological function will continue to decline”.

3. Ms D summarised the issues for the wife at that time as follows:

   Ms Merritt is experiencing a difficult separation from her former husband, feels physically and emotionally intimidated by her former husband and is socially isolated except for those times when a family member stays in her home.  She finds it difficult to imagine how her situation can be resolved while living in Canberra.[8]

   [8] Report of Ms D dated 30 March 2015 at page 4.

4. Ms D said that in her opinion the best option for the wife’s present and future psychological health would be for her to return to (omitted) with the children.  She said that would offer her a range of supports necessary for her mental health and day to day psychological functioning and those benefits would flow on to the children.

5. On 25 March 2015, Ms D had administered to the wife the Beck Depression Inventory and the Beck Anxiety Inventory which are both self-rating questionnaires.  On the Depression Inventory the wife’s score was 28 which, according to Ms D, indicated moderate depression.  On the Anxiety Inventory, the wife’s score was 31 which indicated moderate anxiety.

6. Ms D said that, in her opinion, the wife’s symptoms and presentation met the criteria for severe adjustment disorder with mixed anxiety and depressed mood.  She said she gave the wife a range of strategies including Cognitive Behavioural Therapy techniques to assist her in managing her symptoms.

7. In her updating letter of 25 June 2015, Ms D said that she had continued to see the wife on a fortnightly basis.  She said the wife remained extremely distressed by contact with her former husband and was visibly upset when speaking about the husband’s behaviour which, the wife said, included repeatedly ignoring her courteous greetings to him at handovers and ignoring her and the children as they waved goodbye to him.  She reported feeling highly anxious and intimidated at handovers.  Ms D said the wife presented as bewildered and shocked by other behaviour of the husband which she experienced as intrusive, such as emails requesting that he come to the home and sudden changes to the handover arrangements.  Ms D said the wife was working hard to implement strategies to manage her distress including ensuring she has someone with her at handovers.  She was using Cognitive Behavioural Therapy strategies and breathing and relaxation techniques and was receiving physical and telephone support from her parents and her sister.

8. Ms D said the wife reported that she is managing her work and the care of her children very well despite her difficulties with the husband.[9]

   [9] Affidavit of Ms D filed 6 July 2015 at page 2 of annexure E.

9. At the time of Ms D’s report dated 6 June 2016 she and the wife were continuing to meet fortnightly.  She said that the wife was still experiencing a negative impact on her mental health and general psychological functioning whenever she was required to have contact with her former husband regarding the children.  However Ms D said that, although the wife still became tearful when describing recent interactions with the husband, she presented calmly, smiled frequently and displayed no signs of agitation.

10. Ms D said that the orders of 7 July 2015 and 25 September 2015 had a positive impact on the wife’s mental health and general psychological functioning because they clarified the arrangements regarding the children and reduced the contact between the parents.  She said visits by the wife and children to (omitted) had also had a positive effect on the wife’s wellbeing. 

11. On 1 June 2016, Ms D again administered the Beck Depression Inventory and the Beck Anxiety Inventory to the wife.  The wife’s Depression Inventory score was 12, which indicates only mild mood disturbance.  Her score on the Anxiety Inventory was 10, which indicates very low anxiety.  The wife reported no difficulty breathing and no feelings of fear.  Ms D attributed the changes to a greater sense of safety provided by the structure of the Court orders and to a sense of hope regarding a possible relocation to (omitted).  Ms D said that, in her opinion, the wife’s adjustment disorder had resolved.  However she said the wife remains at risk of symptoms escalating sharply if she is unable to move to (omitted).  She said that, in that situation, the wife’s previous symptoms could return and develop into a major depression.

12. Ms D had never met the children or made any observations of the children with their mother.  Despite this, at page 5 of her report, Ms D expressed the view that the wife has the capacity to connect well with the children and to create a safe environment within which the children feel supported to express their fears. She said the wife is able to provide comfort for the children while nurturing their relationship with their father.

13. Ms D gave oral evidence by telephone on 22 June 2016 during which her notes were tendered.  She was cross-examined by senior counsel for the husband, also by telephone.

14. Ms D agreed during cross-examination that she had only ever seen the wife in the context of the legal proceedings in which the major issue was the wife’s desire to relocate to (omitted).  She agreed that the Beck Anxiety Inventory and the Beck Depression Inventory both showed a significant improvement in the anxiety and depression suffered by the wife between March 2015 and June 2016 but said there were still periods when the wife’s anxiety and depression were exacerbated as a result of issues between the parties or a court date approaching.

15. Ms D was taken through her file notes in cross-examination.  She agreed that the notes of her first two sessions with the wife, being late November 2014 and 3 December 2014, indicate that the wife was focused on what she said were the lies told by the husband and his refusal to allow her to return to live in (omitted) with the children.  Ms D agreed that on 3 December 2014 the wife described the husband as “very nice”.

16. In the third session on 17 December 2014, the notes of Ms D record for the first time that the wife said she felt intimidated by the husband at a childcare presentation night and that she suffered huge anxiety.

17. Ms D had said her reports were based entirely on information and observations made during her appointments with the wife.  It became clear however that she had also received information from the wife’s solicitor.  She said she did not regard the solicitor as influencing her reports because, regardless of what she was told by the solicitor, everything she put in her reports was consistent with her own opinion.

18. Ms D made a file note during a conversation she had with the solicitor on 13 March 2015.  The note contains a number of statements as follows:

    application before the court

    miserable

    emotional resilience

    Ms Merritt’s responses consistent with someone being threatened

    lack of insight

    lack of regard for Ms Merritt & the impact on Ms Merritt

    indifferent

    she is shielding children from

    ensuring children have a great relationship with him

    reality of family being at the same school compromises her ability to support the children

    he’s lived there before

    Canberra short-term

19. Ms D said she could not recall whether the notes reflected statements made by her during the phone call or statements made by the solicitor.  She had never met the husband but agreed that the statements “lack of insight” and “indifferent” must, in the context, refer to him and not to the wife.  She ultimately conceded the notes were likely to reflect statements made by the wife’s solicitor.  However, she reiterated that she forms her own independent view about all matters contained in her reports.

20. According to Ms D’s file notes, on 19 March 2015 the wife’s solicitors wrote to Ms D formally asking for a report.  Ms D prepared the report dated 30 March 2015 and, following further telephone communication with someone in the wife’s solicitor’s office on 19 June 2015, prepared an updating letter on 24 June 2015.  After further contact with the wife’s solicitor on 24 September 2015, she prepared a letter for use in Court proceedings the following day.  The letter tendered in Court on 25 September 2015 is in the form of an email from Ms D to the wife’s solicitors and, on its face, appears unsolicited.  The opening paragraph is:

    I write to inform you of my concern regarding the recent observable deterioration in Ms Merritt’s psychological health.  Ms Merritt was exceedingly distressed at our two most recent sessions, on 9/09/2015 and 23/09/2015.

21. The letter goes on to detail the presentation of the wife and the distress and anxieties expressed by her.

22. The wife was due to meet with Ms D on 7 and 21 October 2015.  On 19 October 2015 the wife sent Ms D a text message asking to postpone the 19 October session for various reasons.  In the text message she said “I am feeling good.”  In subsequent sessions the wife told Ms D that, although she was disappointed about not being able to relocate on an interim basis, she was happy with the orders made on 25 September 2015 which denied the husband an increase in time with the children and provided for handover to occur at Marymead, thus avoiding the parties coming into contact with each other.

23. During cross-examination Ms D said she had never previously been involved in providing therapy to a patient going through family law litigation.  She had however provided therapy for patients experiencing marriage breakdown.  She agreed that there is a high incidence of anxiety and depression in that cohort.  She said she had no difficulty accepting that the family law litigation would add to the wife’s stress and anxiety.  She confirmed that she engaged in no independent testing of statements made to her by the wife because she was providing therapeutic treatment rather than an independent forensic assessment.

Dr C

1. The husband’s solicitors arranged for the evidence of Ms D to be critiqued by Dr C, a clinical psychologist.  Dr C did not meet the parties or the children and read no material other than the reports of Ms D. 

2. Dr C’s report dated 14 June 2016 is annexed to her affidavit filed on 16 January 2016.  In it Dr C raised a number of concerns about Ms D’s evidence.  The first involved Ms D purporting to carry out both a therapeutic and a forensic function in relation to her client.  Dr C said the Australian Psychological Society’s code of ethics cautions members against taking on dual roles because of the difficulties that situation presents.  She said it is common practice and professionally acceptable for a psychologist engaged in a therapeutic role to accept statements of their clients at face value in order to develop trust and to help the client deal with their subjective experience.  She said a psychologist acting in a forensic capacity is required to consider alternative hypotheses, gather information from sources other than the patient and evaluate competing versions of events.  She said this is not normally done by a psychologist acting in a therapeutic role because challenging or testing a patient’s statements may be damaging to the therapeutic relationship.[10]

   [10] Report of Dr C dated 14 June 2016 at paragraph 13.

3. Dr C said Ms D had blurred the two roles by offering expert opinion to the Court about the wife’s condition and the causes of it.  She said many of the statements and conclusions of Ms D were based on the wife’s reports of the husband’s behaviour which may or may not be accurate and in circumstances in which Ms D had not met the husband or heard his version of events.  She referred to an example on page 6 of Ms D’s report of 30 March 2013 in which Ms D opined that the wife’s self-esteem, sense of control and future outlook were severely compromised by the actions of the husband.  She said Ms D accepted at face value the assertions of the wife about the husband’s behaviour which is acceptable in a therapeutic role but said it was inappropriate for Ms D to then offer conclusions of a forensic nature without testing the wife’s claims.

4. Dr C said that if a psychologist carries out dual roles it is important that they not offer an opinion about matters that fall outside their knowledge or expertise or make claims based on empirical evidence for which there is limited or conflicting support.  She noted that Ms D gave an opinion about the wife’s parenting capacity despite the fact she had never met the children, had never observed the wife with them and had received no third party information about the wife’s parenting capacity.  She was critical of Ms D linking the wife’s return to (omitted) with the prevention of a future mental health disorder for the wife.  She said such a prediction is not supported by any empirical evidence.  She said Ms D did not appear to have considered that there was no previous history of mental health difficulties for the wife who had successfully adapted to long term relocation to Canberra, had held employment and had developed social networks while living in Canberra.

5. Dr C said that Ms D’s ultimate recommendation that the best option for both the wife and children would be for them to relocate to (omitted) was well beyond Ms D’s expertise and knowledge in the circumstances of this case.  Dr C said that while relocation may provide psychological benefits for the wife, other variables might also impact on her mental health more significantly than the move.

6. Dr C was particularly critical of Ms D for failing to qualify her ultimate recommendation in relation to the children in any way.  She noted Ms D had not discussed the potential for the children to experience a sense of loss if they relocate away from Canberra and away from their father.

7. The next area of concern raised by Dr C was the diagnosis reached and treatment recommended by Ms D.  Although Ms D said the wife had been referred by her general practitioner for management for anxiety and depression, Ms D did not take a comprehensive psycho-social history from the wife in order to assess the reasons for her presentation.  She said background factors are usually critical in assessing an individual’s functioning, formulating a diagnosis and developing an appropriate treatment plan.  She said the history allows the clinician to consider alternative diagnoses.  In this case, Ms D appeared to simply accept the wife’s assertion about the source of her difficulties.  Dr C said that the criteria for a diagnosis of adjustment disorder in the DSM5 requires clinically significant symptoms of behaviour evidenced by either marked distress which is out of proportion to the stressor and/or significant impairment in social, occupational or other important areas of functioning.  She said the diagnosis also requires that the disturbance does not meet the criteria for any other disorder.  Ms D concluded that the marital separation was the stressor.  Dr C said that there was no indication that the wife’s symptoms were out of proportion to that stressor or that it had an impact on her functioning at work or as a parent.  Dr C said adjustment disorders are common in newly separated people and there is no empirical evidence to link such a disorder to a major depressive disorder.  She said there was no basis for Ms D to conclude that, although the adjustment disorder she previously diagnosed had resolved, the wife was at risk of developing a major depression.  She said the risk factors for a major depressive disorder included genetic factors, gender, previous history of mood disorder, drug and alcohol dependence, adverse life events and age.  She said the conclusion by Ms D that the wife was at risk of major depressive disorder if she is not allowed to relocate is not supported by any evidence in the psychological literature or the background of this particular matter.

8. Dr C was critical of Ms D saying the improvement in the wife’s psychological health was due to her hope or expectation that she will be able to relocate to (omitted).  She said there are many possible contributors to the wife’s improved mood including the simple passage of time after separation.

9. The wife’s general practitioner had administered to the wife a different assessment tool, the Kessler Psychological Distress Scale (K10), when preparing the first mental health plan on 28 October 2014. The wife’s score was 17 out of 50 on which indicates no psychological distress.  The K10 was administered again by the wife’s general practitioner on 24 February 2015 by which time the wife had participated in six sessions of treatment with Ms D.  The wife’s score on the K10 in February 2015 had increased to 29 out of 50 which is in the range of moderate mental health disorder.  The results of the K10 assessments were in Ms D’s file.  Although Ms D referred to the K10 results in her first report, she did not discuss them or offer any explanation about why the wife had reported such a dramatic decrease in her psychological functioning during a period when she was in active treatment.  Dr C considered this a major omission given Ms D was making significant claims about the mother’s mental health and making recommendations about actions to ameliorate her symptoms.[11]

   [11] Report of Dr C dated 14 June 2016 at paragraphs 45 to 46

1. While these matters did not reflect well on the husband, they did not change my assessment of him as a generally credible witness.

2. The wife was a less credible witness than the husband.  Despite her verbal abuse of the husband and her throwing wine in his face, the wife has come to see herself as a victim in need of protection from him.  None of the evidence warrants a finding that the wife is in need of such protection.  On the contrary, I was persuaded over the course of the hearing that the wife had overstated various adverse aspects of the husband’s behaviour and overreacted to many of them.

3. The wife said several times during her evidence that she feels she no longer knows the husband and that she does not trust him. She gave two reasons for that.  First, she said he had broken a clear promise to her that they would move to Canberra for only two years and now denied ever making that promise.  However, the parties had lived in Canberra for five years prior to separation and purchased a house in (omitted) three and a half years after moving.  The husband’s evidence about the reasons for the purchase was more persuasive than the wife’s and the purchase itself indicates the wife was willing to stay beyond the asserted two year period.  The second reason for the wife saying she feels she no longer knows the husband is that the husband had begun calling himself Mr Merritt when she had always known him as Mr Merritt.  During cross examination the wife denied the husband told her he preferred to be called Mr Merritt.  She said his parents had once told her that he did not like to be called Mr Merritt.  She said she did not raise the matter with the husband.  This particular evidence gave me the impression the wife was clutching at straws in an effort to discredit the husband.

4. I have already discussed the wife’s inconsistent attitude to her attendance at X’s ballet concert and the husband’s attendance at X’s nativity play at the end of 2015.  This may be an example of the wife behaving in a quietly controlling manner or of the wife allowing her own anxieties to override her capacity to support what was an important moment in X’s relationship with her father.  She seemed to entirely lack compassion or empathy for X and the husband, both of whom very much wanted the husband to see the performance.  The presence of the wife’s mother at the ballet concert was not sufficient to change my assessment of that situation.

5. The wife gave evidence about the reaction of the children to leaving her parents’ home in (omitted) in January 2016 and April 2016.  She said that on both occasions the children became distressed about leaving and did not want to return to Canberra.  The husband replied to that evidence by saying that the children often do not want to leave his family’s farm when they go to visit but that he is able to reassure them that they will come back to the farm, remind them that they will soon be seeing their mother and distract them by playing their favourite games in the car.  The wife agreed in cross examination that the strategies adopted by the husband were sensible and child focussed.  She added that she, too, adopted those strategies, reminding the children that they would soon be seeing their father and distracting them to prevent their distress escalating.  However her affidavit evidence indicates the opposite.  She described in great detail in paragraphs 22 to 24 of her affidavit sworn on 6 June 2016 that, after the holiday in (omitted) in January 2016, X was so distressed about leaving that she was crying and kicking the back of her mother’s seat in the car and insisting that she did not want to go home.  She said that in April 2016 X was again crying and saying she did not want to go back to Canberra and asked her mother to cancel the plane tickets.  As the morning progressed, X became increasingly upset and, by the time the wife and children left the home of the maternal grandparents, the children were clinging onto their grandmother’s ankles and refusing to leave.  The wife described X becoming extremely distressed at the airport and crying inconsolably until well into the flight which also set Y crying.  On her own evidence the wife was unable to manage the children’s expectations and behaviour sufficiently to prevent their distress escalating, despite her statements to the contrary.  The wife had relied on her evidence about the children’s distress to demonstrate how attached the children were to (omitted) and the extended maternal family.  She tried to downplay that evidence when wanting to demonstrate she has capacity to manage the children’s distress.  She was either exaggerating the children’s distress or was not truthful when saying she was able to manage it.  Either way her credibility is negatively affected.

The legal principles

1. When making any parenting order the Court must regard the best interests of the child as the paramount consideration. [15] In determining what is in the child’s best interests the Court must have regard to the primary considerations set out in section 60CC(2) of the Act which are as follows:

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   [15] Section 60CA Family Law Act1975

2. In applying section 60CC(2), the Court is required to give greater weight to the need to protect the children from harm.[16]

   [16] Section 60CC(3)

3. For reasons already stated, I am satisfied there is no risk the children would be subjected to physical or psychological harm arising from abuse, neglect or family violence by either parent.  There is a potential risk to their psychological well-being from being exposed to tension and conflict between their parents during direct handovers.  However most handovers occur at school and preschool and those which do not can continue to be supervised or occur in a public place.  If handover occurs in a businesslike manner between the parties there would be little risk to the children.  The wife said the handovers would go well if she was assured the husband was not going to act in an intimidating, threatening or unpredictable manner.[17]  The risk can also be addressed by the wife obtaining appropriate support to develop a more robust attitude to dealing with the husband.

   [17] Transcript 21 June 2016 at page 210

4. There being no need to protect the children from harm, the primary consideration in this case is the benefit to the children of a meaningful relationship with both parents.  There is no doubt the children would benefit from a continuation of the meaningful relationship they currently enjoy with each parent.  I agree with the submissions by senior counsel for the wife that the legislative requirement is to consider the benefit of a meaningful relationship rather than the most ideal relationship possible between the children and their parents.

5. The Court is also required to take into account the additional considerations set out in section 60CC(3) of the Family Law Act. The first of these is the wishes of the children and any weight that ought to be accorded to them having regard to the age and maturity of each child. The children are too young to have significant weight placed on their views. However I am confident on the evidence as a whole that each of the children would want to maintain their meaningful relationship with both parents and to spend significant time with each.

6. The next factor to be taken into account is the nature of the relationship between the children and each parent and other significant people.  The children have a close and loving relationship with each parent.  They are securely attached to their mother who is a warm and predictable caregiver. They have a strong and positive relationship with their father. I am satisfied that each parent provides a sense of safety and security for the children who are thriving. I accept the evidence of Dr F that the children have a deep attachment to their mother and that their bond with their father, while positive, is not yet fully developed.

7. Each party made complaints about the other party’s parents but I am satisfied on the evidence that both sets of grandparents are sensible and loving and that the children would benefit from continuing their relationship with them.  I do not intend to canvas the particular complaints which are of low level and adequately addressed in the evidence of each party.

8. I am satisfied on the evidence that the children have loving relationships with other members of the extended families of both parties and very much enjoy spending time with them.

9. The children were gradually introduced to the husband’s partner, Ms M, and I am satisfied they have a comfortable relationship with her.

10. The next matter I am required to take into account is the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children and to spend time and communicate with them. The evidence about this is clear.  Each parent is highly motivated to spend time and communicate with the children and to participate in decision making about major long term issues concerning them. Senior counsel for the wife put to the husband that he had not taken every opportunity to spend time with the children. A parenting plan agreed between the parties provided for the children to spend the night before and the night of each parent’s birthday with that parent.  Neither parent sought to change that when court orders were made. The husband agreed that, as (omitted) 2016 was his birthday, he was entitled to have the children on (omitted) and (omitted).  He elected to have the children only on (omitted).  The husband said he thought that, given the parties were in Court that week, it would be best to disrupt the children’s routine as little as possible.  It was put to him that he had only had one night with the children for his birthday in the previous two years but the husband could not recall that.  Even if the husband had elected to have one night with the children rather than two, this is not a matter which effects my assessment of this consideration.

11. Next is the extent to which each of the parents has fulfilled or failed to fulfil their obligation to maintain the child.  The wife works part time and supports the children from her income.  The husband works full time and, since separation, has continued to support the wife and the children.  In addition to the administrative assessment of child support for the children, the husband has continued to pay half of the mortgage and all of the school and child care fees.  I am satisfied that both parents have fulfilled their obligations in this regard.

12. The next consideration is a very weighty one in these proceedings.  It is the likely effect of any changes in the children’s circumstances including the effect on the children of any separation from either parent or any other person with whom they have been living.  If the wife is permitted to relocate with the children to (omitted), it is likely the children will miss their father with whom they currently spend time each week.  The adverse impact of such a move might be ameliorated by the children spending extensive time with their father either in (omitted) or in Canberra and by having regular communication with him by telephone, Skype and other means.  It would require active and positive support of the relationship by the children’s mother and other significant caregivers such as the maternal grandparents. I have serious reservations about the wife’s capacity to create an environment for the children in which their relationship with their father is supported given her view of the husband as someone to be feared.

13. During cross-examination the wife was asked about Dr F’s assessment that a move by the children to (omitted) would put their developing relationship with their father at risk. The wife said she took that issue seriously but felt that she could manage and foster the children’s relationship with their father in a strong, positive and supportive manner from (omitted), despite the anxiety she suffers in relation to the husband.[18] I found that hard to believe in light of the evidence. The husband complained that on the rare occasions he was stuck in a meeting at work or for some other reason was unable to ring the children at the precise time required, the wife was not flexible enough to allow a telephone call at a different time or on a different day and simply insisted that the orders be complied with. The wife also failed to set up the Mailman toy despite her assurances to the husband that she would. Although those instances were frustrating for the husband, they were not critical because the children have weekly contact with him.  If the children lived in (omitted), however, these problems become much more significant. I will return to this issue in greater depth shortly.

    [18] Transcript 21 June 2016 at page 197

14. The next consideration is the practical difficulty and expense of the children spending time and communicating with a parent and whether that would substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.  For the children to maintain direct contact with their father would require the children or their father to fly on a regular basis between (omitted) and Canberra.  A bundle of documents evidencing the cost of air fares, car hire and accommodation was tendered in evidence and became exhibit H4 in the proceedings. It appears that the cheapest return flight between Canberra and (omitted) is more than $500 but it can be as much as $1,500 per person depending on the time of year, how far in advance the flight is booked and whether the flight occurs during school holidays. The cost of accommodation is also variable but appears to be around an average of $2,000 for seven nights. Car hire is between about $700 and $1,000 for a week. Neither party is particularly well off financially.  They both have legal fees in excess of $100,000 and both have borrowed money from their parents in order to fund the proceedings.  The cost of travel between the two cities therefore may have some impact on the frequency of the children spending time with their father if they relocate.

15. I am required to consider the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs and the attitude to the children and to the responsibilities of parenthood demonstrated by each parent.  Both parents are intelligent, well educated people.  Each can provide well for the intellectual needs of the children and currently do so.  In general each parent has displayed a very good attitude to their responsibilities as parents.  Each is devoted to the children, provides well for their needs, and engages in delightful, child focused activities with them. By the end of the trial I had some concern about the wife’s capacity to assist the children to be emotionally robust.  The wife’s voluminous affidavit material is replete with examples of the wife being too distressed or anxious to read documents or text messages or have any dealings with the husband.  She has regularly telephoned more than one person to discuss a particular interaction with the husband.  She appears to need a great deal of emotional support and has a perception of the husband being intrusive and relentless in his communications when, objectively, the bulk of those communications are about ordinary run of the mill things concerning the children and could not reasonably be characterised as harassing or relentless. This apparent fragility of the wife may affect her capacity to assist the children to develop emotional robustness.  An incident which illustrates this occurred in March 2016.  The husband said that he saw a note from the school advertising a (hobby omitted) familiarisation program called (omitted).  He said it looked interesting and he showed it to X who expressed an interest in being involved.  He sent the wife an email with information about the program and told her that X was interested.  The wife replied, saying that when she discussed the matter with X, X displayed “reluctance and anxiety” and she did not therefore agree to the child playing.  The husband said that when he next had the children he spent time with X and showed her some information on the internet about the program including some video footage of children playing in the competition.  He said X again became enthusiastic and expressed a desire to play.  Ultimately, with the wife’s consent, she did.  The husband was able to help the child manage her feelings of ambivalence and anxiety such that X was able to approach the activity in a positive manner and derive pleasure from it.

16. During cross examination about the issue the wife said she had always supported X joining the (hobby omitted) orientation program and took separate steps to help X resolve her anxieties, including taking her down to a (hobby omitted) to familiarise her with the environment in which the game was played. That may be the case but her initial reaction was to say X should not be enrolled.  It may be that the wife will become more robust emotionally and be able to encourage resilience in the children but the evidence during the hearing caused me to doubt the wife’s capacity to provide for that aspect of the children’s development.

17. I am required to take into account any family violence involving the children or a member of their family.  Senior counsel for the wife submitted that I should find on the evidence the husband has engaged in family violence.  I do not agree.  Central to the definition of family violence are notions of coercion and control.  The wife alleged the husband was domineering, controlling and abusive during the relationship but, ultimately, that evidence was not persuasive.  I found husband’s description of most incidents of alleged abuse more compelling than the wife’s.  Each party engaged in behaviour that was less than desirable at various times in the period leading up to and following separation but in my view it was low level, mutual and involved heightened emotions specific to the separation.  

18. The only physical violence between the parties was the wife throwing wine in the husband’s face. The only evidence of verbal abuse was the wife speaking in offensive and degrading terms to the husband.  Each party accused the other of sending harassing or controlling emails or, in the alternative, refusing to respond to reasonable email requests and making the communication drawn out and difficult.  The email communication or lack of it does not in my view amount to coercive and controlling behaviour.  I find that neither party has engaged in family violence as defined in the Act.

19. The next matter I am required to take into account is whether it would be preferable to make an order which is least likely to lead to the institution of further parenting proceedings.  This is usually quite difficult to assess but in this case if the relocation occurs, I can foresee many situations in which the time and communication between the children and their father runs into difficulties which will ultimately require further litigation. While the parties live in the same area and the children see each parent each week, small problems in facilitating telephone communication or similar are less significant.  However, if that is the only form of contact between the children and their father for months at a time, those issues become more weighty and significant and are more likely to lead to the institution of further proceedings.

Relocation determination

1. Although the best interests of the children are the paramount consideration in parenting cases, they are not the only consideration.  The wife’s right to freedom of movement and her right to live in a place of her choosing are significant and weighty considerations. They must give way only if they conflict with the best interests of the children.  The wife is not required to provide reasons for the relocation but has compelling reasons nonetheless. She has lived for most of her life in (omitted) and has close relationships with her parents, siblings, wider family and long-term friends, all of whom provide practical and emotional support to her.  A move to (omitted) by her and the children would have significant practical and emotional benefits for the wife and I accept that those benefits are likely to flow to the children as a result of their mother feeling happy, secure and less stressed.  I also accept that, if she is not permitted to relocate, the wife is likely to feel miserable and trapped in Canberra as she has described.  Those feelings may also be transferred to the children but, to date, the wife has done a good job of shielding the children from her distress.

1. The maternal grandmother’s diagnosis of bilateral breast cancer makes the mother’s desire to relocate to (omitted) even stronger, more urgent and more poignant.  The prognosis was uncertain at the time the further evidence was filed in December 2017.  The knowledge of the nature and seriousness of the illness was understandably devastating to the wife and, of course, she wants to be able to offer direct physical and emotional support to her mother and to give support to and receive it from other extended family members.

2. During the proceedings the wife placed a great deal of emphasis on the husband’s purported promise that the parties would return to (omitted) within two or three years after leaving in 2009.  She repeatedly called the husband a liar for making that promise and refusing to honour it.  In my view even if the husband had made a solemn promise to return it would not affect the outcome. Just as the wife is not required to give compelling reasons for wanting to return to (omitted), the husband is not required to give compelling reasons for having changed his mind, if that is what happened.  At the end of the day the Court must determine whether the best interests of the children are met by them remaining in the Canberra district or relocating to (omitted).

3. The wife’s case for relocation is strong and compelling.  Her application was likely to have been successful but for her anxiety about the husband, her characterisation of his actions as violent and what flows from that.  I accept the wife genuinely believes herself to be a victim of violent behaviour perpetrated by the husband but, having heard all of the evidence, I am persuaded that the wife has elevated ordinary disputes and grievances many separating couples have with each other into a narrative of abuse, intimidation and harassment which is not justified.  If the children live in (omitted) they will live with their mother who regards their father as a threat both physically and emotionally.  They will also be living with the maternal grandparents and having a lot to do with their maternal aunt and various friends of the mother, all of whom gave evidence against the husband and support the wife’s view that he is frightening. It may be difficult for the children at their young age to hang onto a different and healthier picture of their father, especially given their emotional closeness to their mother and the extended maternal family. 

4. When the wife went with the children to (omitted) in December 2013 she told her employer that she had to flee for her safety.  Her family and close friends believe the husband is intimidating and overbearing, largely based on what they have been told by the wife. Senior counsel for the wife submitted at the end of the trial that the Court should make a positive finding that the husband has engaged in family violence.  If she is permitted to relocate with the children it is likely the wife’s narrative about the husband will continue and that those who come to know the wife in (omitted), including the children’s teachers and associates, will come to view the husband as violent.  

5. The wife’s lack of comfort was the reason to refuse a range of reasonable requests by the husband to either attend the former matrimonial home or have some interaction with the children.  The wife repeatedly referred to needing a support person with her to enable her to manage situations in which she might come face-to-face with the husband. The husband will inevitably cause offence to the wife in his email communications or in some other way at some stage.  Given the history, there is a danger the wife will feel so distressed or discomfited about his behaviour that she will also become concerned about the children spending time with him. The children may also become uncomfortable about spending time with him as a result of absorbing the unspoken attitude of their mother with whom they have a close relationship.

6. Ironically, the parties are likely to have less face-to-face contact with each other if they remained living in the same city as most of the handovers of the children can occur at school and, during holidays, at Marymead.  If the wife relocates with the children to (omitted) most of the handovers will involve direct face-to-face contact between the parties which, according to the wife, causes her anxiety.  Her solution seems to be to have a support person with her including on the flights between (omitted) and Canberra which is impracticable and expensive.

7. The children’s apparent reluctance to return to Canberra from (omitted) in January and April 2016 was significant enough for the wife to include it in her affidavit material.  If the children live in (omitted) and become reluctant to spend time with their father or if the wife perceives they are reluctant or anxious, there is a risk of ongoing difficulties which will undermine the children’s relationship with their father. If the children live in Canberra they will continue to spend time with their father every week.  Their ideas about him will be informed by their own experience of living with him on a regular and substantial basis. That experience to date is positive and is likely to remain so if the frequency of time with him continues.

8. Dr F said very clearly that a strong bond between girls and their father is protective as the children mature. X and Y have a good and developing bond with their father but it needs active support.  Although the wife professed to understand the importance of the relationship between the children and their father, I found her statements that she was prepared to actively support and encourage the children’s relationship with their father unpersuasive.  In my view if the children live primarily with their mother in (omitted), there is a significant risk that their relationship with their father will be under pressure and will ultimately falter.

9. If the children were older, the risk would be less significant as the children would have greater capacity to maintain an independent view of their father. Given their young ages, it is critical in my view that they continue to spend regular and substantial time with their father in order to maintain a meaningful relationship with him.  In Canberra, that can continue to occur each week.  This will protect the relationship and is ultimately the determining factor in the case.

10. I accept the submission of senior counsel for the wife that the legislative requirement is for the Court to consider the benefit to the children of a meaningful relationship with their father rather than the most ideal relationship.  However my concern is that if the children relocate with their mother to (omitted), the children’s right to a meaningful relationship with their father will be in jeopardy and the relationship may ultimately be lost.  In those circumstances the wife’s right to freedom of movement must give way to the best interests of the children.  Accordingly, the wife will not be permitted to change the residence of the children to (omitted).

11. Unfortunately for the wife, the illness of her mother does not change my assessment of where the best interests of the children lie.  The consequences of the maternal grandmother’s illness are not known, particularly as her prognosis is uncertain.  It may be that she is unable to return to work and will not therefore have the same financial resources to fly on a regular basis to Canberra to provide emotional and practical support the wife. She may not be physically capable of doing so in any event.  A reduction in her income may mean the maternal grandparents are no longer able to provide financial assistance to the wife to travel on a regular basis to (omitted).  There is no evidence about whether, in light of the maternal grandmother’s illness, the wife and children would still be able to live in the home of the maternal grandparents.  However that has no impact on my determination as the wife is capable of obtaining appropriate accommodation for herself and the children in (omitted) or Canberra.

12. The wife will undoubtedly want to spend more time in (omitted) with her family during her mother’s illness and I expect the husband to be flexible about that, particularly if the life expectancy of the maternal grandmother is truncated as a result of her illness.  The parties might agree, for instance, to the children spending extra time with their mother in (omitted) during some school holiday periods or visiting during school term if there was a sudden deterioration in the health of the maternal grandmother.  However, I do not propose to make particular provision for that in the orders as it is impossible for me to predict what might be required.  With the security of final orders, the husband ought to be confident about negotiating appropriate changes to the arrangements to accommodate the situation presenting at the time.

Parental responsibility

1. Both parties sought an order for equal shared parental responsibility. Such an order would require the parties to consult each other about major long term issues and make a genuine effort to reach agreement about those issues. [19]  Each party complained during the proceedings about delays by the other party in responding to email correspondence concerning the children’s activities.  Both parties also deposed in detail to disputes they had in relation to relatively minor issues concerning the children’s arrangements, extra-curricular activities and the handover point.  Each blamed the other for the difficulties.  Despite that, the parties have managed to resolve the majority of parenting issues.  Apart from the issue of school fees, the parties have agreed on what schools the children should attend in Canberra or in (omitted) in the event of a relocation.

   [19] Section 65DAC(3) Family Law Act

2. The children have engaged in various sporting and extracurricular activities and both parents intend for that to continue.  During cross examination the wife said that she was confident that the parties would be able to consult each other and reach a joint decision about all major long term issues.[20]

   [20] Transcript 21 June 2016 at page 160

3. In my view both parents have a lot to offer the children and should both be involved in making major long term issues concerning them.  I am satisfied that it is in the children’s best interests that an order for equal shared parental responsibility is made, particularly in circumstances where both parents seek that order despite their historical difficulties.

4. Whenever an order is made for equal shared parental responsibility, the Court must consider whether the child spending equal time with each parent is reasonably practicable and in the child’s best interest and, if so, consider making such an order.[21]  If the court does not make such an order it must consider whether it is reasonably practicable and in the child’s best interest to make an order for the child to spend substantial and significant time with each parent and, if so, consider making such an order.[22] In this case the children already spend substantial and significant time with each parent, defined in the Act as including week days, weekends, holidays and times of particular significance to the child or the parent.  

   [21] Section 65DAA(1)

   [22] Section 65DAA(2)

5. The family consultant said that the arrangements in place at the time she prepared the report in May 2016 were appropriate.  She recommended an increase in approximately 12 months’ time which coincides with the date of this judgment.  She was not asked to comment on an equal time arrangement.

6. The husband originally sought that the children’s time with him gradually increase until an equal time arrangement was achieved in 2019.  In light of Dr F’s recommendations, that particular aspect was not pressed.  However, I do not take Dr F’s recommendations to be against an equal time arrangement.  Even if that was intended by Dr F, her report is only one part of the evidence before me.  On the evidence as a whole, provided the increase in time with their father builds up gradually, I am satisfied it is in the children’s best interest for them to ultimately live for equal time with each parent.  I am confident the husband has the capacity to provide for the full range of needs of the children as they mature and that some of the things he brings are complimentary to the qualities the wife provides.  The children will have the benefit of being exposed to the maximum extent to the different personalities of their parents and their different strengths.  Given the lingering doubts I have about the capacity of the wife to wholeheartedly support the children’s relationship with their father, in my view it is necessary for them to spend as much time with him as possible without negatively impacting their relationship with their mother.  

7. I intend to make orders which provide for a gradual increase in the children’s time with their father.  The parties might agree to a different arrangement as time goes on if, for instance, the structure of the time could be better organised but, if they don’t agree, the orders will provide for what is to happen.

8. I am satisfied that such an arrangement will meet the best interests of the children in the circumstances of this case.

I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date: 27 June 2017