Micaleff and Micaleff
[2014] FCCA 119
•24 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MICALEFF & MICALEFF | [2014] FCCA 119 |
| Catchwords: FAMILY LAW – Parenting – relocation – two brothers aged 14 years and 11 years living with mother in (omitted) – both children expressing strong wish to live with father in Sydney – opposed by mother – consideration of weight to be attached to wishes – best interests of children. |
| Legislation: Family Law Act 1975 (Cth), Part VII |
| D & SV [2003] 30 Fam LR 91; FLC 93-137 G & C [2006] FamCA 994 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531 Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 Sayer v Radcliffe &Anor [2012] FamCAFC 209; 48 Fam LR 298 |
| Applicant: | MR MICALEFF |
| Respondent: | MS MICALEFF |
| File Number: | SYC 1545 of 2008 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 20 September 2013 19, 20 and 23 December 2013 |
| Date of Last Submission: | 20 January 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 24 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Davies |
| Solicitors for the Applicant: | Doolan Wagner and Callaghan |
| Solicitor for the Respondent: | Mr K Byrnes |
| Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer: Solicitor for the Independent Children’s Lawyer: | Byrnes and Cox Lawyers Mr C Boyd Foat Associates Lawyers |
ORDERS
That all previous orders in relation to the children X born (omitted) 1999 (“X”) and Y born (omitted) 2002 (“Y”) (“the children”) are discharged.
That the parents have equal shared parental responsibility for the children.
The children live with the father.
The mother is to ensure and enable the children to move to Sydney with their personal effects and clothing no later than 5.00pm Sunday 26 January 2014.
The children spend time with the mother as follows:
(a)On the fourth weekend of each school term applicable at the school attended by each child and to take place in (omitted) from not earlier than 7.00pm on Friday and until no later than 8.30pm on the Sunday or 8.30pm Monday if a long weekend with the mother to arrange and pay for the cost of the children travelling from Sydney to (omitted) and return to Sydney with the mode of travel to be as selected by the mother and if by air the mother is to give not less than 14 days prior written notice to the father of the carrier and the flight number and the time at which the children are to be at Sydney Airport and with details of the carrier, flight number and the time at which the children are due to return to Sydney Airport, and in that instance with the father or his nominee to take the children to Sydney Airport for that purpose and to collect the children from Sydney Airport upon their return;
(b)At the mother’s election, on no more than two other weekends during each school term applicable at the school attended by each child other than the fourth weekend of each school term and the Father’s Day weekend with the mother to give not less than 21 days prior written notice to the father upon each occasion the mother makes such election and with the time to commence on the Friday as specified by the mother but after the conclusion of school and before 9.00pm and to conclude not later than 8.00pm on the Sunday or 8.00pm Monday if a long weekend and with the time to be spent with the children to occur within the Sydney basin and with the mother to collect the children from outside (omitted) Cinema from the father or his nominee and with the children to be returned to the father or his nominee at the same place on the Friday provided that these arrangements can be varied by agreement between the parties in writing by text message or email or facsimile transmission as to implementation;
(c)For the first half of all school holidays applicable at the schools attended by the children in odd numbered years and for the second half of all school holidays in even numbered years with such half to be determined by calculating the number of days from 10.00am on the first day following the conclusion of the immediately preceding school term until and including the day immediately preceding the commencement of the new school term and dividing such number by two and in the event that this results in an odd number then the extra day is to be spent with the mother.
(d)On the weekend of Mother’s Day at the same times referred to in order 5(a) above and at the mother’s expense and which can occur in Sydney or (omitted) at the mother’s election;
(e)At such other or additional times as the parties may agree in writing by email or text message.
To give effect to the above orders as to implementation:
(a)As to order 5(c) the father or his nominee known to the children is to take the children to (omitted) at the commencement of each school holiday period and is to collect the children from the mother in (omitted) at the conclusion of the holiday period and take them back to Sydney with the venue in (omitted) for changeover to be outside the main Post Office or such other place as agreed in writing prior to such changeover and by text message, email or facsimile transmission;
(b)On all other occasions for which provision is not made in order 5 above as agreed between the mother and the father and in the absence of agreement as determined by the father.
That the children have liberal telephone communication (including Skype) with the parent with whom they are not then living or spending time at any time as reasonably requested by either of them, and with each child to be accorded privacy during such communication and with the mother to install at her expense a Skype facility no later than 30 April 2014.
On the birthday of each child, the parent not spending time with the child on such occasion is to have telephone contact with both children on each such occasion at some prior agreed time or failing agreement between 7.00pm and 8.00pm with the parent with whom the child is then spending time to ensure that each child is present to receive a telephone call, that the telephone service is not being used for any other purpose, is not switched to a message bank or answering service and if a mobile, is positioned in such a place to receive telephone calls free from interference.
That the father is restrained from:
(a)Taking any action or step to change the given names and surname of the children whether formally or otherwise;
(b)Enrolling either of the children at any school other than (omitted) College in the case of X and (omitted) Primary School in the case of Y for 2014 but thereafter (omitted) College without 14 days prior written notice to the mother by letter or email;
Each parent is restrained from denigrating the other parent in their presence or hearing of the children or either of them including but not limited to making rude comments, making insulting comments, swearing at, shouting at and making obscene gestures and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence of the children or either of them.
That the father and mother shall each promptly notify the other should the children or either of them whilst in the care of that parent suffer from a serious injury or be diagnosed as suffering from a serious medical condition with each parent subsequently entitled to visit the children in hospital at any time and obtain medical information about the children from the children’s treating doctors.
Each parent is entitled to obtain from the schools attended by the children from time to time copies of newsletters, order forms for school photographs and other information about the children normally provided to parents and each parent is entitled to attend events at the school to which parents are invited to attend whether or not the children are living with them or spending time with them during the relevant period.
During any time that the mother is spending time with the children or either of them in the Sydney basin the mother is to ensure that the children attend any sporting activities to which the children are previously committed.
Each parent is to inform the other of any change in current residential address, land line telephone number, mobile telephone number, facsimile transmission number and email address with any such change to be communicated within 48 hours of such change occurring.
The mother and the father are to enrol in, attend and complete a course of therapeutic counselling by 30 June 2014 or such later date as the clinician determines with a clinician experienced in family dynamics and communication nominated by the Director of Child Dispute Services, Family Courts of Australia at Newcastle or her nominee with a view to improving their communication with each other so as to discuss matters concerning the children and the children’s relationship between each of the respective parents with each of them to inform the Independent Children’s Lawyer in writing of the name and place at which such therapy is to take place and with the intent that it be preferable for both parties to attend upon such therapeutic counsellor in person but one or both parties may attend by telephone if personal attendance is impractical.
That the mother cause to be delivered to the Solicitors for the father by 28 February 2014 the passports currently in her possession for the two children X born (omitted) 1999 and Y born (omitted) 2002.
That the order made on 18 March 2013 in the Federal Magistrates Court of Australia at Newcastle that the children by separately represented is continued until 31 July 2014.
IT IS NOTED that publication of this judgment under the pseudonym Micaleff & Micaleff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
SYC 1545 of 2008
| MR MICALEFF |
Applicant
And
| MS MICALEFF |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father to change the place of residence of the children from (omitted) where they currently live with their mother to (omitted) in Sydney on a permanent basis.
The children are X born (omitted) 1999 and now 14 years of age and his younger brother Y born (omitted) 2002 now 11 years and 3 months of age. X has now come to the end of year 8 at (omitted) High School in (omitted) and Y has now come to the end of year 5 at (omitted) Public School in (omitted).
The mother opposes any move by the children to Sydney.
The current final parenting orders were made on 25 October 2010 following a contested hearing. Such orders provide that the parents have equal shared parental responsibility with the children to live with the mother in (omitted).
Such orders provide that the children spend time with their father each alternate weekend during school terms from after school Friday until 4.00pm on the Sunday with appropriate extensions if either day is a Public Holiday, and for the first half of the school holidays at the end of terms one and three and for the second half of the mid-year school holidays and for the first half of the December/January school holidays in an even numbered year and the second half of such holidays in an odd numbered year. There are a number of other practical parenting orders.
It is common ground that the father spends time on alternate weekends with X and Y at (omitted) or elsewhere in the (omitted) district where he has family accommodation for that purpose and that the boys generally spend time with him in Sydney during school holiday periods.
It is the father’s case that the elder child has expressed a strong and consistent wish to live with his father for a period now approaching two years. It is the father’s case that whilst Y has been reticent about expressing a view, he has now expressed an identical view in more recent times.
It is the mother’s case that whilst she acknowledges that X expressed a strong wish to move to Sydney to live with his father echoed by Y in more recent times, it is not in the best interests for either child for that to occur. It is also the mother’s case that the children’s views have been unduly influenced by the father over a long period of time and that he has brought pressure to bear upon them and that the father is not necessarily available to care for the children as much as he says as a consequence of work commitments.
It is also the mother’s case that the children are well settled in (omitted), are progressing well at their respective schools, have a number of good friends and play a number of sports and that there is a considerable risk in disturbing their present stability with no apparent benefit for the children in either the short term or the long term and when no need is demonstrated on the evidence before such change to occur.
The mother told Ms B[1] in January 2013 that she would support X moving to live with his father when he was 16 years old. His 16th birthday falls on (omitted) 2015 and would also support Y living with his father when Y commences High School, currently proposed to be at the beginning of 2015.
The respective applications at the hearing
[1] See Exhibit ICL1
The father
The father sought final orders in accordance with his initiating application filed 13 March 2013 to the effect that all existing parenting orders be discharged, that the parents have equal shared parental responsibility for both children, that both children live with him and both do all acts and things to ensure X’s enrolment and attendance at (omitted) College in (omitted) and Y’s enrolment and attendance at (omitted) Public School, unless otherwise agreed.
The father proposed that the children spend time with the mother each alternate weekend during school terms from the conclusion of school on Friday, or Thursday if the Friday was a Public Holiday until 4.00pm on Sunday or 4.00pm on Tuesday if the Monday was a Public Holiday together with the first half of the school holidays at the end of terms one and three and the second half of the school holidays at the end of term two and for the first half of the Christmas school holidays in 2013 and the second half in 2014 and alternating in that fashion. The father also proposed the children spending time with their mother at other times as they may agree.
The father proposed a number of other practical parenting orders including the children spending time with their mother on the Mother’s Day weekend, with him on the Father’s Day weekend, regular telephone communication and sharing of information from schools and medical providers and with both parents being enabled to take the children abroad upon not less than two months prior notice being given with provision of appropriate and relevant information.
During the course of submissions at the conclusion of the hearing, I indicated to Mr Davies that I was concerned that on the evidence that there was a possibility that if the boys were living with their father in Sydney, the mother may not travel to Sydney to spend time with them on the third and seventh weekends as proposed by the Independent Children’s Lawyer and was initially supported by the father in deference to his proposal as set out above.
I indicated to Mr Davies and Mr Boyd that it seemed to me there should be one fixed weekend each school term for both children to spend time with the mother in (omitted) and considered that the fourth weekend would be appropriate on the premise that the father could then make appropriate plans for the children’s activities if they were living with him and ensure compliance with the orders.
It was Mr Davies’ submission that it would be appropriate for the mother to make the arrangements and meet the cost of the children travelling to and from (omitted) for such purpose on the premise that the father was to implement all holiday time in (omitted) that is both delivering the children to (omitted) at the beginning of the holiday period and collecting them at the end of the period to return to Sydney if his application was successful.
It seemed to me also that rather than prescribing periods of time for the mother to spend with the children in Sydney, if the father succeeded with his application on two weekend occasions during school terms as had been proposed by the Independent Children’s Lawyer, that the mother should have an option of choosing when she exercised such time, for example by being required to give at least 21 days prior notice in writing to the father of her proposal to spend time with the children in Sydney and that she be required to take the children to any pre-arranged activities.
Mr Davies indicated that the father would support such an outcome as did Mr Boyd for the Independent Children’s Lawyer. I was unable to obtain any indication from Mr Byrnes as to whether this would be appropriate for the mother.
The mother
The mother sought orders in accordance with her response filed on 13 September 2013, quite simply, that the father’s application be dismissed and that the orders of 25 October 2010 made in the Federal Magistrates Court of Australia at Newcastle be confirmed with no departure from such orders.
At the conclusion of the hearing, and during submissions and when pressed, Mr Byrnes on behalf of the mother indicated that whilst it was not the mother’s application and if both boys were to live with their father in Sydney, then it would be appropriate for the move by Y to be deferred and for X to spend time with the mother twice per month, once in Sydney where the mother would collect X from school and take him back to the father on Sunday at (omitted) cinema and on the other occasion in (omitted) with the father to effectively arrange for X to travel to (omitted) for that purpose. The proposal as to the return of X to Sydney was less than clear.
I infer from this proposal that the mother would ensure that Y would spend time with X for so long as such arrangement continued.
The Independent Children’s Lawyer
Mr Boyd, Counsel for the Independent Children’s Lawyer, indicated at the commencement of the hearing that the Independent Children’s Lawyer took the view that the preferred course was for the children to live in Sydney with their father, that the parents have equal shared parental responsibility, that the children spend one weekend per month with their mother in (omitted) and that she spend one weekend per month with the boys in Sydney with X to have no discretion as to when he spends time with his mother. Mr Boyd indicated that the Independent Children’s Lawyer had some concerns about the recommendation of the Family Consultant, Ms B about the time to be spent during school terms and preferred to await the evidence and again speak with the boys before forming a final view.
The view of the Independent Children’s Lawyer crystallised during submissions in January 2014.
I indicated to Mr Boyd that on the evidence before me, an order for sole parental responsibility in favour of the father as proposed by the Independent Children’s Lawyer in that regard was not supported on the evidence before me and Mr Boyd indicated that application would not be pressed.
The Independent Children’s Lawyer thought it appropriate that the children spend time with the mother in Sydney on the third and seventh weekends of each school term with such time to be spent in the Sydney area from 5.00pm on the Friday until 7.30pm on the Sunday but for the reasons I have given above this view is modified by the end of submissions.
The Independent Children’s Lawyer did not press time for the children with the non-residential parent between Christmas Day and Boxing Day as the Court was told by both Mr Davies and Mr Byrnes that neither party proposed to interrupt the Christmas period with the parent with whom the children were then staying given that it was agreed every school holiday including Christmas would be shared equally between each parent with the first half in odd numbered years and the second half in even numbered years.
The Independent Children’s Lawyer did not press the implementation arrangements originally proposed at the commencement of the hearing and on the premise that the father had agreed to implement all holiday time for the children with their mother in (omitted), that is both journeys if the children were living with the father in Sydney and, as indicated above, I suggested a flexible arrangement for the mother to spend time with the children during school terms subject to one fixed weekend in (omitted).
I was told at the commencement of the hearing by Mr Boyd that the children had expressed strong views to the Independent Children’s Lawyer during an interview that they wanted to move to Sydney with their father and the Independent Children’s Lawyer was left with the impression that such views were strongly held.
At the resumed hearing on 20 January 2014 and over the objection of Mr Byrnes, I permitted Mr Boyd to inform me of the essence of the Independent Children’s Lawyer’s conversation with the children the day before on Sunday 19 January 2014 which was to the effect that both boys were still expressing a strong wish to live with their father in Sydney and with the Independent Children’s Lawyer left with the impression that both children were more adamant than on previous occasions.
Existing orders
Following an interim hearing on 28 February 2013 in which judgment was delivered on 6 March 2013, I made orders confirming the orders made in the Federal Magistrates Court of Australia at Newcastle on 25 October 2010 to which I have referred above and have reserved the parties’ costs of the interim proceedings to the final hearing.
On 18 March 2013 I made an order for the separate representation of both children.
At the conclusion of the first day of hearing on 20 September 2013, I made an order in the following terms:
“Both parents are restrained from talking to the children about the evidence given in the proceedings today and are further restrained from causing or permitting any other person from talking to the children about the evidence other than the Independent Children’s Lawyer.”
On the same day, a further order was made by consent in the following terms:
“Both parents do all acts and things to ensure that the children’s educational options planned for both Sydney and (omitted) remain open for the 2014 school year.”
Background
The applicant is 49 years of age and is employed as a (omitted) in a (employer omitted) with offices abroad.
The mother is 46 years of age and is employed as a part time (omitted) by a (employer omitted) in (omitted) where she has lived with both children following her relocation with them to (omitted) from Sydney in December 2005.
The parents married on (omitted) 1992, separated in August 2005 and a Divorce Order was made on 1 May 2008 which took effect from 2 June 2008.
The two children X and Y are the only children of the relationship.
On the evidence before me, the mother has not re-partnered.
In January 2007 the father commenced a relationship with his partner, Ms A. The father lives with Ms A and her three children. Those children are respectfully A born (omitted) 1998 and now 15 years of age (“A”), B born (omitted) 1999 and now 14 years of age (“B”) and C born (omitted) 2002 and now 11 years of age (“C”).
A and B attend (omitted) College at (omitted) and C attends (omitted) College in (omitted).
Ms A works part-time as a (omitted) in a (omitted) role at a (employer omitted).
The father and Ms A and her children live in (omitted) in Sydney.
X has been attending (omitted) High School in (omitted) and Y has been attending (omitted) Public School.
History of the proceedings
It is relevant in my view to consider the history of litigation in this case. The first final parenting orders were made by consent at Port Macquarie Local Court on 9 January 2006[2] when it appears that the mother was represented and the father represented himself. Such orders provided that the children live with the mother (the mother had moved to (omitted) from Sydney during the previous month, December 2005), that the parents share joint responsibility for the long term care welfare and development of the children and that the children spend time with the father for one weekend in February, for seven days from 4 -11 March, for one weekend in May, the June long weekend, August, for four consecutive days at the time of the father’s day weekend and one weekend in November. Such orders also provided for the father to spend broadly one half of each school holiday period.
[2] See Exhibit F3
In 2009 the father brought proceedings seeking orders that he spend alternate weekends with the children during school terms and essentially at (omitted) albeit he lived in Sydney but was prepared to travel for that purpose each alternate weekend. The mother resisted any change to the existing orders made in January 2006.
On 25 October 2010 Federal Magistrate Terry, as she then was, delivered a reserved judgment discharging any previous parenting orders and making further parenting orders as referred to earlier in these reasons for judgment.
In November 2011 the father brought a further application to take both children to (country omitted) during the school holiday period in January 2012. The mother did not oppose the children travelling to (country omitted) but sought a shorter period. Ultimately, orders were made by consent in accordance with the father’s application and the times proposed by him in such application.
Proceedings were commenced by the mother in January 2013 seeking orders that the father immediately return X to her and resisted by the father who sought an interim order that X live with him in Sydney. Ultimately, the mother sought a continuation of the orders of 25 October 2010.
The interim hearing took place on February 2013 before me and judgment was delivered on 6 March 2013 confirming the orders of 25 October 2010.
The father filed an application in a case on 13 March 2013 seeking orders that X live with him in Sydney and attend (omitted) College at (omitted). The mother opposed such application and after a short hearing on 18 March 2013, I made orders for the separate representation of the children, dismissed the father’s application and the father was ordered to do all things and pay any necessary fares to ensure X returned to (omitted) by plane the following day, 19 March 2013 to arrive not later than 8.00pm with the mother to be notified of the particulars of the arrival.
X was returned to the mother in accordance with the orders. Those proceedings flowed from the father having taken X back to Sydney on the evening of 7 March 2013 following concerns as to X’s state of mind at that time.
The evidence
The mother relied upon the following affidavits:
a)Her affidavit sworn and E-filed 5 September 2013;
b)The affidavit of her father, Mr E sworn 9 August and E-filed 15 August 2013.
On 20 September 2013, the first day of hearing, leave was granted to the mother to rely upon the affidavit of Mr I, a school teacher sworn and E-filed 17 September 2013.
The father relied upon the following affidavits:
a)His affidavit sworn 29 August and filed 30 August 2013;
b)The affidavit of his father Mr N affirmed 26 August and filed 30 August 2013;
c)The affidavit of his partner Ms A affirmed 28 August and filed 30 August 2013.
There was in evidence before me the Family Report of Ms B published 9 August 2013 and following her interviews with the parents and both children and Ms A and her children, A, B and C on 18 June 2013.
I also had the benefit of listening to and observing the parents give evidence together with Ms A.
I also had the benefit of listening to the evidence of Ms B who was cross examined by all three Counsel.
I was left with the distinct impression that both parents did their best to give evidence truthfully with both readily making concessions where appropriate.
There were the following exhibits:
M1 –a bundle of emails between (omitted) Mediation and the mother and the father of 7 pages in September and October 2012.
M2 – email from the mother to the father and the father’s response dated 22 July 2012 and 24 July 2012 respectively.
M3 – a bundle of emails between the mother and the father in relation to schooling between 17 November 2010 and 5 June 2011.
M4 – enrolment application for X at (omitted) High School.
M5 – email from the father to the mother of 7 December 2012 and email from the mother to the father of 19 December 2012.
M6 – copy of Y's Semester 2 school report from (omitted) Public School.
F1 – Section 11F Child Dispute Conference Memorandum by Ms R of 19 November 2009.
F2 – Mother’s affidavit dated 16 January 2013.
F3 – Copy of parenting orders made at Port Macquarie Local Court on 9 January 2006.
ICL1 – Section 11F Child Dispute Conference Memorandum of Ms B dated 29 January 2013.
ICL2 – Draft minutes of proposed orders by the Independent Children’s Lawyer.
I also had the benefit of very helpful and constructive submissions from Mr Byrnes, Mr Davies and Mr Boyd.
The issues
It seems to me the issues involve the careful consideration of what are the most appropriate parenting arrangements for X and Y both in the long term and in the short term and in particular:
a)The nature of both children’s relationship with each of their parents and members of their respective extended families;
b)The likely affect in the changes in the children’s circumstances if they are to live in Sydney with their father and the likely effect of separation from their mother.
c)Whether there is likely to be any adverse effect for either or both children if their strongly expressed wishes to live in Sydney with their father are not put into place and in particular the affect, if any, of their relationship with their father and further, the affect, if any, of their relationship with their mother and particularly whether there is the possibility of resentment toward her for resisting their move.
d)The practical difficulty, expense and burden of travel, if any, for the children and either parent if the children relocate to Sydney from (omitted).
e)The weight to be given to the wishes expressed by each child and an examination of the reasons for such wishes.
f)The advantages and disadvantages for the children living in either (omitted) or Sydney.
g)The capacity of each of the parents to provide not only for the children’s day to day physical needs but also their emotional and intellectual needs.
h)The ability for the parents to communicate and cooperate effectively to meet the children’s needs whether they are living in (omitted) or in Sydney.
i)Given the respective proposals of the parties, whether it is possible for the Court to formulate different arrangement for the times the children spend with each parent.
The relevant Law
I have regard to Part VII of the Family Law Act 1975. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting Order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”
I must consider, in determining a child's best interests, the matters set out in s.60CC. There are two primary considerations:
“(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant.
I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting Order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an Order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an Order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[3].
[3] Section 65 DAA Family Law Act1975.
It is also necessary for me to consider in the context of this case established case law in relation to relocation. It has been held that relocation cases are not a special category of case. The Family Law Act 1975 does not specifically mention relocation either in Part VII or elsewhere. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[4].
[4] Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 at para 40.
I have regard to the High Court decision in U v U (2002)[5] in which the High Court said that:
“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by movement of a parent.”
[5] U v U (2002) 211 CLR 238; (2002) FLC 93-112.
In D v SV (2003)[6], the Full Court commented on the need to:
“Evaluate all options to determine if the welfare of the children could fit into the mother's right to live where she pleased.”
[6]D v SV (2003) 30 Fam LR 91 at 106; FLC 93-137 at 78290.
The Full Court of the Family Court of Australia late in 2007 gave consideration as to the effect of the amending legislation upon relocation.[7] In that case Brewster FM permitted the mother to relocate with a 9 year old child to North Queensland from Canberra. The Full Court found that when considering the application of s.65DAA the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.
[7] Taylor & Barker [2007] FamCA 1246; (2007) 37 Fam LR 461.
The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable. The Full Court went on to say in paragraph 82:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.”
At paragraph 83 the Full Court said this:
“However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent.”
It seems to me the Court is required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[8].
[8] Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422.
I have considered also the decision in Mazorski and Albright [9], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”
[9] Mazorski & Albright (2007) 37 Fam LR 518; at 526.
Section 60B (1)(a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
In the Full Court decision of McCall & Clark[10] their Honours Bryant CJ, Faulks and Boland concluded that there are three possible interpretations of Section 60CC(2)(a) finding that the preferred interpretation of the benefit to a child of a meaningful relationship is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.[11]
[10] [2009] Fam CAFC 92, (2009) 41 Fam LR 483.
[11] Paragraph 119.
The Full Court rejected the notion that a Court should assume there is a benefit to all children in them having a meaningful relationship with both parents, finding that if the legislature had intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[12].
[12] Paragraph 120.
Her Honour Justice Bennett discussed the terminology in G & C[13] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[13] G & C [2006] FamCA 994.
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski (supra), and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said:[14]
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[14] Paragraph 122.
I take into account also the judgment of the High Court in MRR v GR[15] and the requirement for the Court to consider the inherent difficulties for parents who live some distance apart and the consequent stress or other adverse impact which may affect either parent but more importantly the child and the reality of the situation required to be considered pursuant to Section 65 DAA(1).
[15] [2010] HCA4; (2010) 42 Fam LR 231.
I note also the recent Full Court decision in Sayer v Radcliffe &Anor[16] in which it was said relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders.
[16] Sayer v Radcliffe &Anor [2012] FamCAFC 209; 48 Fam LR 298
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the legislation provides a focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.
The Family Report
The evidence of the Family Consultant Ms B, is found, firstly, in a Child Dispute Conference Memorandum of 29 January 2013[17] when Ms B spoke to both children, and second, the Family Report published 9 August 2013.
[17] Exhibit ICL1
In the Memorandum of 29 January 2013 Ms B found that each child presented as intelligent, mature and thoughtful with X particularly keen to participate in decision making about his parenting arrangements and with Y expressing some concern about his mother’s reaction to his participation and expressed views.
Ms B found that X expressed clear and consistent views to live with the father at that time and formed a view that such views did not appear to be impulsive or reactive, rather they appeared well considered over the past 18 months and heavily influenced by his developmental needs and the quality of his parental relationships.
Ms B reported that X described declined feelings and wellbeing in his current living arrangement including thoughts of self-harm on one occasion in August 2012 but denied any further thoughts of self-harm. Ms B reported that X conveyed concern about his future coping and adjustment if he remained living with the mother.
Ms B reported that Y also discussed X’s emotional wellbeing at that time and conveyed similar concerns for X’s wellbeing if he remained living with the mother.
Ms B reported that Y was conflicted in his views in his parenting arrangements but stated clearly that he believed he would cope with any living arrangement decided by the Court including a separation from X. He was also clear to state that he had also considered living with the father but felt very concerned about the mother’s reaction to such a situation.
Ms B reported that while Y was clear to convey that he would cope with a separation from X and Ms B considered that it was likely that he would if he maintained regular contact with him, Ms B thought that it was evident that Y felt very sad at the thought of being separated from his brother.
Ms B reported that Y insightfully stated that he does not really know what it would be like to live with the father because he has not ever done it but expressed enthusiasm about trying such an arrangement at some stage.
Ms B noted that Y also identified a number of features of his current living arrangements, most predominately his peers, which made a proposal that he remained with the mother at that time positive for him.
Ms B concluded that based on the interviews with the children and I quote:
o“The children’s psychological and emotional needs are very well supported in their relationship with their father, including confidence in the father that he will uphold and promote their relationship with the mother;
oThe children have felt some psychological burden in their relationship with the mother, most particularly associated with the mother’s “hatred for Dad”; they have felt and continue to feel, limited confidence in the mother’s commitment to promote and support their relationship with the father;
oThe children feel safe and cared for in both households, and the parenting afforded to them in both households appears to have been of a high quality;
oThe children seek to maintain positive relationships with both parents into the future.”
Ms B concluded that given the history of conflict in the family, there is no doubt that the children’s expressed views at this time have been influenced by a range of behaviours and actions exhibited by both parents over a prolonged period of time but Ms B concluded that the children’s views appeared thoughtful and consistent with their developmental stage.
In her Family Report published 9 August 2013, I am satisfied Ms B identified accurately and reported accurately the parents’ perceptions of each other and accurately reported the wishes and perceptions each of the children had of each of the parents. I will expand upon this later in these reasons for judgment.
Ms B was subjected to a long and for the most part appropriate cross examination by Mr Byrnes, Solicitor for the mother followed by pertinent cross examination by Mr Davies, Counsel for the father, and Mr Boyd, Counsel for the Independent Children’s Lawyer.
In the context of the examination by Mr Byrnes of Ms B it must be remembered that it is the mother’s case that the father had embarked upon a planned course of undermining the children’s relationship with the mother and engineering with some degree of subterfuge the children’s currently expressed wishes.
It was Mr Byrnes submission that this is not a simple matter and that there is a degree of superficiality in looking at the children’s wishes alone, strongly expressed as they are and then determining that such wishes should be given appropriate weight and the children be enabled to live with their father in Sydney.
In his submissions, Mr Byrnes emphasises that whilst this is a tempting argument, it is superficial and that the evidence puts a completely different stance on the respective applications emphasising that the real benefit for the children is a continuation of the existing arrangements where there is stability both at school and at home and that no interruption is warranted in the children’s best interests.
Mr Byrnes submits that the father will be able to continue to see the children as he does now fortnightly at (omitted) and during school holidays in Sydney. Mr Byrnes emphasises that the father has been able to develop a very close and secure relationship with both children and that the existing arrangements are somewhat ideal and there is no compelling reason on the evidence to bring about a change of those current arrangements.
Mr Byrnes admitted that the Independent Children’s Lawyer and Counsel for the father would say that the toxic environment in the mother’s home caused by the mother’s hostility to the father has brought about the children’s expressed wishes to prefer to live with their father but that the finding that the Court is likely to make must be based on the evidence and that the evidence does not support the mother’s hostility and therefore the rationale for the children’s currently expressed wishes must fail.
Mr Byrnes submits that it is the mother’s case on the evidence that the father engaged in hypocrisy when electing not to tell the mother of certain matters of which he was informed by both children from time to time and which resulted in a false picture being presented to Ms B at the time of the preparation of the Family Report, or at the least a picture which was not true.
Mr Byrnes submits that the alternative hypothesis for the strongly expressed children’s wishes is that the father’s long term desire and plan to ensure the return of the boys to Sydney to live permanently with him resulted in him withholding certain issues from the mother to advance his plan to foment difficulties between the boys and their mother.
These included the issue of enrolling or at least securing a place for X at (omitted) College, withholding issues from the mother concerning bullying, causing X to think that at the end of the school holidays in 2012/2013 that he did not need to return to his mother’s home in accordance with the existing orders and otherwise deliberately keeping from her a number of statements made to him by the children which should, as a responsible parent, have been relayed to the mother.
It was Mr Byrnes submission that the mother was precluded from dealing with these matters as they presented themselves, particularly the bullying and the wish to live in Sydney because these matters had not been disclosed to the mother.
It is the submission on behalf of the mother that the mother was effectively disabled from dealing with the children’s issues as they arose, particularly their wish to move and which resulted in the attitude of the elder child, X hardening towards his mother.
Mr Byrnes submits that such attitude by X and later Y could be explained if there had been some drastic or traumatic event which had occurred at home between X and his mother at any time during 2012 and perhaps earlier but there was no evidence of such event.
It is the mother’s case that if she had been told by the father of such matters it would have resulted in a joint approach by both parents to assist X in what was a very difficult period.
Mr Byrnes expanded at some length during his submissions as to various aspects of the evidence but concluded in relation to the Family Report by submitting that the mother had been unfairly treated by Ms B, the Family Reporter.
It is appropriate therefore to consider in some detail the evidence of Ms B contained within the Family Report and her response to questions in cross examination.
In my view, Ms B correctly identified the issues as being not only where the children should live predominately but also the nature of the relationship and the impact on the children if they were to be separated; the nature of the children’s parental relationships and the impact on these relationships if there was to be a change in the children’s living arrangements, and similarly the impact on these relationships if there was no change to the children’s living arrangements[18].
[18] Paragraph 21 of the Family Report
Ms B reported:
“The extremely acrimonious sentiment conveyed by the mother towards the father is also of concern.”[19]
[19] Paragraph 21 of the Family Report
When asked by Ms B as to the mother’s parenting strengths Ms B reported as follows:
“The father easily engaged in discussions about the mother’s positive parenting attributes for the children; such as consistently facilitating their activities and actively engaging in their school and community life. He also remarked on the mother’s capacity to consistently provide for the children’s daily cares to a very high standard. The father was clear to state that the mother’s capacity to understand and meet the children’s emotional and psychological needs is his primary concern, and what he believes is primarily contributing to the distress and wishes of the children at this time.[20]”
[20] Paragraph 31 of the Family Report
In contrast, Ms B reported as follows in relation to the mother[21]:
“The mother does not believe that it would not be in the children’s best interests to live with the father. She claimed that the father works long hours and would not be able to provide support to the children. She also spoke disparagingly of the father’s parenting capacity. She does not believe that the father is a positive role model because he has lied throughout past and current Court proceedings (claims that the mother believes that she can support with evidence); she also claimed that the father has encouraged X to talk about self-harm. The mother also claimed that the father has regularly exposed the children to information pertaining to various Court proceedings (when asked whether she believes that she had ever exposed the children to information pertaining to various adult disputes, she said that the children have been aware that she has engaged in Child Support proceedings, but the children did not have to attend and therefore “the impact is different”). The mother was unable to identify any positive aspects of the father’s parenting capacity for the children other than to concede that the children had a good relationship with the father (which she attributed to positive aspects of her parenting capacity, rather than the father’s)”
[21] Paragraph 51 of the Family Report
During cross examination of Ms B by Mr Boyd, she said that in her view it was apparent to both children that the mother was unable to identify any positive aspects of the father’s parenting capacity and said further that in her view the children understand the father has a more positive attitude towards their mother than the reverse.
Ms B reported as follows concerning the mother’s beliefs[22]:
“The mother strongly believes that the current distress of the children and their wishes to live with the father have been completely influenced by the father. The mother repeatedly referred to the father having “planned this” over a long period of time. The mother indicated that she feels very deceived by the father, for example, when she discovered that the father had enrolled X in (omitted) College. The mother strongly believes that this is evidence of the father’s long standing “plans” to take the children from her.
[22] Paragraph 44 of the Family Report
The mother adamantly denied to Ms B that there had been any issues or behaviours on her part which may have impacted adversely on the children’s parental relationships, expressed wishes or on their current level of distress with Ms B asking several times to reflect on any issues the children may have raised prior to or during this process which may indicate some concerns that they had about her parenting approach[23].
[23] Paragraph 45 of the Family Report
The mother told Ms B the only aspect of her parenting that she had wished she had done differently was to “ask the right questions”. When asked what she was referring to the mother said that if she had asked the children “the right questions” she may have discovered the father’s “plans” to take the children.
The mother denied to Ms B that there was ever any behaviour by her or the maternal grandmother which may have obstructed or undermined the children’s relationship with the father over the years which Ms B considered to be a further concern when noting that similar issues had been raised in an earlier Child Inclusive Conference with a different Family Consultant in November of 2009[24].
[24] Paragraph 46 of the Family Report and Exhibit F1
The mother told Ms B that X “idolises” his father and is therefore very influenced by him but that she did not believe that X actually wanted to live with the father because “I have seen him in his own space” and he is settled. The mother told Ms B that she did not believe that Y has ever wanted to live with the father and believes that Y ultimately wants the litigation to be over[25].
[25] Paragraph 48 of the Family Report
The mother expressed concerns to Ms B that the children do not actually know what it is like to live with the father and suggested that little weight could be placed on their views[26].
[26] Paragraph 49 of the Family Report
Ms B reported[27]:
“The mother was not able to identify any positive aspects of the father’s proposal for either child, irrespective of whether it was consistent with either child’s wishes or needs. She identified numerous points of objection to the proposal; generally consisting of things such as her concerns that the children would attend a different school to their step-siblings and she believed that this represented an “inequality”. She expressed the view that neither child would adjust effectively if Orders were made for them to live with the father.
[27] Paragraph 54 of the Family Report
The mother told Ms B that if orders were made allowing one or both children to live with the father, then she would not be prepared to travel to Sydney on alternate weekends to spend time with them. She denied to Ms B that she had any friends of relatives that she could stay with the children and said that she would be reliant on motel accommodation. Ms B reports the mother as explaining that she would not feel like a “mother” under such conditions and would therefore not agree to it[28].
[28] Paragraph 55 of the Family Report
Ms B interviewed Ms N, the maternal grandmother[29]by telephone.
[29] See Paragraph 60-64 inclusive of the Family Report
It is significant in my view that Ms N did not give evidence in the mother’s case and did not file an affidavit for the final hearing.
I accept and find that Ms N made statements to Ms B as reported by her.
It is very clear from such statements and I have no hesitation in finding that the maternal grandmother has a particularly adverse view of the father when she describes him as having “brainwashed” the children and that their current circumstances have been “cooked up” by the father.
I find Ms N demonstrates no insight as to the children’s current perceptions and needs when she told Ms B[30]
“I don’t understand why the kids don’t want to be with their mother and I don’t know why they don’t see us as the best grandparents”.
[30] Paragraph 62 of the Family Report
Ms N also raised other matters to the effect that the children’s safety could not be assured with the father, that his supervision of them over the years had been poor, that he had left the children in the house unattended at least on one occasion when the children were very young.
Perhaps not surprisingly, Ms N gave Ms B a very positive account of the mother’s “active and involved” parenting capacity for the children and that she and the mother had protected the children over the years.
Ms B reports extensively as to the elder child X[31]. Ms B found that X expressed clear and consistent wishes to live with his father explaining to her that these wishes had been of long standing and well thought out and not impulsive. X explained to Ms B that it has taken him some time and courage to express his wishes because of concern for the mother’s reaction but since expressing those wishes he had become more and more “desperate” in his need to live with the father.
[31] Paragraph 65-82 inclusive of the Family Report
X discussed with Ms B his thoughts of self-harm in association with his current living arrangements and described his thoughts during 2012 and 2013 as wanting to jump off a cliff and also described wanting to run away. He denied any recent thoughts of self-harm but described having very negative dreams about his mother.
X described to Ms B an extremely poor relationship with his mother and his feelings that there relationship had declined considerably throughout this process because of the mother’s inability to listen to him or support his needs. X told Ms B that whilst the mother had always been active in his life, he had never really felt that he could trust the mother and currently has little to no trust in her.
X gave a lengthy explanation to Ms B about the issues of trust who reports as follows[32]:
“When asked further about these issues of trust, X explained that after the parents’ separation, the mother (and maternal grandmother) heavily denigrated the father. He said that this occurred to such a degree that he remembers telling his friends that he did not see the father very often because the father was “a bad guy…a wanker”. However, he said that when the father started to spend alternate weekends with them he realised that the father was the exact opposite of what the mother had made he and Y believe he was. X described feeling very angry at the mother for doing this to him and his brother”.
“X explained that his anger and mistrust of the mother has never abated because of the mother’s perpetual negativity and denigration of the father over the years. X described overt behaviour by the mother over the years, as well as behaviour that X referred to as “sly” with regards to how she subtly undermined of his and Y’s relationship with the father. For example, he recalled the mother removing photos of father from them; he also described perpetually negative body language and facial expressions by the mother whenever the father is mentioned (such behaviour by the mother was directly observed of the mother throughout the Family Report process). X expressed concerns that while these behaviours now have little influence over him (other than to intensify his anger towards the mother) he is concerned about their ongoing influence on Y and Y’s ability to openly enjoy his relationship with the father.”[33]
[32] Paragraph 70 of the Family Report
[33] Paragraph 71 of the Family Report
During cross examination by Mr Davies to the effect that the mother had not been able to disguise from the children her disappointment with the father, the mother said:
“I believe to some extent I have. In other instances, perhaps they have being – smart kids, they see what goes on.”
I am left with the clear impression from the mother’s evidence that she avoided answering the question and was well aware that the children had a perception of her attitude of the father from her behaviour toward them or with them when she referred to the children as seeing what goes on.
When asked by Mr Davies whether the mother agreed that X was telling Ms B the truth as recounted in paragraph 70 of the Family Report, the mother avoided answering the question and said of X that it was his truth. The mother went on to say that she believed the father had created and magnified the situation for X.
In further cross examination by Mr Davies, the mother said that she accepted that it was X’s point of view that she had heavily denigrated the father in the past but disagreed that she had done that or that she was the cause.
During cross examination by Mr Byrnes, Ms B agreed that her acceptance of X’s statement of the heavy denigration of the father by the mother was a very important part in the conclusions she drew.
Mr Byrnes suggested to Ms B that X did not refer to any specific incidents of what the mother had actually said to him to which Ms B responded that her questioning of X went to his perception of the nature of his relationship with his mother but that she considered it specific that he said that the mother put ideas in his head that the father was a bad guy and that, to Ms B’s way of thinking, was specific from a child’s point of view. Ms B said clearly that it was not until X spent more time with his father following the orders made in 2009, and with increasing age, that he was able to determine for himself what kind of guy his father was.
Ms B said clearly in response to Mr Byrnes that her impression was that X was trying to convey to her that he had not changed his point of view and that his experience of how the mother refers to the father has been consistent. What had changed was X’s ability to critically think about what he was hearing.
Ms B found that X had difficulty identifying any positive aspects of his relationship with the mother other than the mother taking him to his activities such as rugby. Ms B noted that otherwise, X described his mother as “hateful”[34]. X expressed anger to Ms B that the mother refuses to acknowledge the closeness of his relationship with his father and his long standing need for his father in his life[35].
[34] Paragraph 73 of the Family Report
[35] Paragraph 73 of the Family Report
X described a similarly poor relationship with the maternal grandmother whom he reported as being “horrible” and “always knocking Dad” over the years. X reported to Ms B that such behaviour by the maternal grandmother had decreased throughout the Court process because there is a lot of acting[36].
[36] Paragraph 74 of the Family Report
X described to Ms B an extremely close and secure relationship with his father whom he described as “genuine and affectionate” and described high levels of trust and support in such relationship. Ms B noted that X could not identify any concerns in such relationship and believed that his wellbeing from this point in time is highly dependent upon living with the father with whom he described as having a close affinity having a similar happy and positive nature like his father[37].
[37] Paragraph 75 of the Family Report
As to the possible separation of X from Y, X thought that he could handle it but would not like to be separated from his brother as he feels protective of him and expressed some concerns as to how Y would cope being separated from him but concluded ultimately that it would be most difficult for Y if he stayed living with the mother because “Y wants to live with Dad”[38].
[38] Paragraph 77 of the Family Report
Ms B reports when asked to consider the impact of a Court decision requiring him to maintain living with the mother, X expressed fears that he would become more depressed and may experience further suicidal thoughts.[39]
[39] Paragraph 79 of the Family Report
X told Ms B that he considered that if he lived with his father he believed all aspects of his wellbeing would improve including his relationship with his mother and that he could foresee an arrangement whereby he would spend every third weekend with the mother in Sydney explaining that the mother would be able to stay with one of her friends in Sydney and suggested that she watch his weekend rugby games.
Ms B’s interview with Y is found in paragraphs 83 to 95 of the Family Report. Ms B found Y to present as a caring and thoughtful child who appeared to present developmentally within the normal parameters.
Ms B found that Y expressed clear and consistent wishes to live with the father and that he has told his mother of such wishes and tried to explain to her that “I feel like a bit of a change”. He told Ms B that his mother told him that she does not understand why he wants to live with the father and therefore will not allow it.
When asked to reflect on his living arrangements with the mother, Y said “it’s been good but I like it a bit more with Dad”. Y told Ms B that he worries about the mother’s reaction to things whereas the father seems to try to understand more[40].
[40] Paragraph 86 of the Family Report
Y described his relationship with his mother as:
“She is just my mum so I can’t not love her…same with my dad”.
“She just doesn’t understand sometimes and that’s the worry”.
Y told Ms B that he felt he is able to “speak more freely with Dad”.
Whilst Y told Ms B that it was his understanding that the mother had agreed to X living with the father but had not agreed for Y to live with his father, he was asked how he would feel if that were to occur if he remained living in (omitted) with his mother. Y said:
“I’d feel sad…I’d definitely not want to stay in (omitted). I’d be sad every day, I wouldn’t be as happy, I’d be sad missing X”. [41]
[41] Paragraph 89 of the Family Report
It seems to me that Y exhibited mature insight when he was asked how he may feel if the Court decided that both he and X should stay living with the mother when he said:
“X being sad and that would impact on me, my emotions”.[42]
[42]Paragraph 90 of the Family Report
In response to a question as to how he would feel if the Court decided that he and X would live with his father he said:
“happy”
and also said:
“sort of feel sad for mum because she’d have no-one staying with her”
adding that he would be able to manage these concerns.
Ms B found that Y insightfully stated that a change of residence would:
“take a while to get used to but I’d get more comfortable with it”.
Y thought that his greatest adjustment would involve leaving his friends but he was confident that his father would assist him to maintain those relationships.
In her evaluation[43] I find that Ms B has very carefully evaluated the material she was given both in interview and otherwise and expressed valid opinions as an experienced Family Consultant.
[43] Paragraph 99-114 inclusive of the Family Report
In paragraph 103, Ms B reported as follows:
“The mother’s perpetual acrimony towards the father (also directly observed by the family consultant on the day of the Family Report) appears to have had a significant psychological impact on these children, most particularly X. It has also clearly impaired the quality of his relationship with the mother. It is very concerning that despite the seriousness of this situation for the children and the scrutiny of the Court, the mother was unable to demonstrate any insight or responsibility for the impact of her behaviour and attitudes on the children; nor was she able to control her behaviour adequately on the day of the Family Report interviews.”
Mr Byrnes cross examined Ms B as to whether there was any reference in her report where she talked about the father’s perpetual acrimony towards the mother to which Ms B responded that her evaluation dealt with the impact on the children and she had concluded from her interviews with the children and understanding their experiences that from her point of view the mother’s acrimony had had an impact on the children.
Ms B said that if the father had been hostile towards the mother over the years, the children from her assessment, did not appear affected in terms of the quality of their relationship with the mother in relation to the father’s behaviour.
When it was suggested by Mr Byrnes to Ms B from his client’s point of view, she felt as though there was an unfairness in the report as it seemed that Ms B had attributed the cause of hostility solely to her. Ms B agreed that from the passages from the father’s trial affidavit which had been read to her, there had been hostility emanating from both parties.
Ms B made it clear in her response to these questions that the children’s perceived behaviour by the mother had had an impact on them in a way that their perception of the father’s behaviour had not.
Mr Byrnes put to Ms B that the evidence of the father was to the effect that he had been able to persuade X to go back to (omitted) at the end of the July 2012 and October 2012 school holidays and both boys at the end of the April 2013 school holidays and that this was a matter which the father should have raised with the mother on the premise that the father perceived X was continuing to have a difficult relationship with his mother. Mr Byrnes suggested that to enable the mother to deal with these issues, it was appropriate for the father to tell her.
Ms B responded emphatically that it would not have been appropriate for the father to do that for the reason that her impression of X’s relationship with his father is that he feels free to talk to his father and uses his father as a sounding board for some of his difficulties and which is a normal child/parent relationship.
Ms B was clear to say that not every aspect of a child/parent relationship needs to be transferred to the other parent.
I find Ms B makes a particularly valid point as to this particular issue and which I accept.
It was a significant part of the case that Mr Byrnes presented on behalf of the mother, no doubt on instructions, that if the mother had known more about the issues affecting the children whether it be bullying at school, the expressed preference to live with their father, their dislike of their mother and their lack of trust of her and the mother had been told of such matters, then she would have been better equipped or enabled to deal with them.
It seems to me and I find on the evidence that there was a general obligation on the part of the father to inform the mother of any matter adversely affecting the children which the parents could approach together and sensitively and with a view to reaching a resolution.
Unfortunately, the evidence does not support at all the possibility of this occurring essentially as to sensitive matters concerning the children’s wishes if they were contrary to those of the mother.
Communication between the parties historically has been poor. It is clear from the mother’s own evidence that she has no regard for the father, does not trust him and believes that he is untruthful and that he has set out on a campaign to secure the children’s return to Sydney. In my view the possibility of reaching a consensus as to any plan that could be put into effect to assist either child was at the best remote and at the worst impossible.
It is of greater significance in my view and which seems to have been ignored by the mother in her case that she, as the full time residential parent, should have been able to observe any matters affecting either child whether it be bullying or trouble at school, unhappiness at home and the like and being able to address any issue appropriately in each child’s best interest.
However, it is abundantly clear from the evidence that the mother lacks the insight necessary to facilitate any relationship of that nature with her children. I will return to this in more detail later in these reasons for judgment.
It was put to Ms B by Mr Byrnes that the father had made detailed notes of conversations with the children and which appear in his trial affidavit as to the different perceptions each had of their mother from time to time and what they perceive to be her continual criticism of the father. Mr Byrnes suggested to Ms B that the mother knew nothing of these complaints because the father did not tell her and that when X says that his mother does not really understand his feelings that arises because his feelings have not been communicated to her by X.
Ms B responded that she disputed that information is the only aspect that could have changed X feeling differently about his mother being able to understand him.
The mother deposes to both boys confiding in her in about September of 2012 that they had a “secret” which they could not tell her[44] with the mother subsequently discovering that the secret was that X might be moving to Sydney to live with his father.
[44] See paragraph 80 of the mother’s affidavit sworn and filed 25 February 2013
The father denied vehemently that he had told the children or either of them at any time that the discussions they had had with him and them during 2012 about moving to Sydney were a secret and should not be disclosed to the mother.
I accept the father’s evidence in this respect. In any event, the mother knew that such discussions had taken place as referred to in her email of 19 December 2012[45].
[45] See Exhibit M5
Ms B was asked by Mr Byrnes whether she had considered it would have been appropriate for the father if the boys had some concerns about living in (omitted) and were thinking about a move to Sydney to communicate that to the mother.
Ms B’s response was “not necessarily”. Ms B went on to say that her recollection of the interview with the children was that any information given to her by the father was that he was encouraging the children to talk to the mother about their feelings, and that is brought out by the evidence in his trial affidavit and which was not the subject of any cross examination as to that particular issue.
In that context, Ms B agreed that the mother could be upset about such events and mistrustful of the father and suspicious of him if not told.
It was suggested to Ms B that the fact that X had said that his mother did not understand him perhaps led to it being difficult for her to deal with his difficulties within their relationship when she did not know about any proposed move.
Ms B was emphatic in her response that any information the mother may have gained was not going to allow the mother to support X moving to Sydney as a consequence of the mother’s statements to both X and Y over a number of years which have influenced their view about how she will accept something that would upset her and it has been a long standing dynamic in their relationships.
The evidence establishes that the first formal request made by the father for X to live with him is contained in an email from the father to the mother of 7 December 2012[46] in which the opening paragraph says:
“X has asked to come and live with me. He has told me that he has discussed this with you and that you have consented to this.”
[46] Part Exhibit M5
The father goes on to say that he is making a written formal request for the mother’s consent for X to move to Sydney starting at the beginning of the first term in 2013 and that a place had been obtained at (omitted) College where he could commence in January 2013.
With such email the father annexed a completed enrolment information form and which forms part of Exhibit M5. The father was obliged to concede that he had wrongly included in such enrolment form the words “X is now living with his father in (omitted) with the mother’s agreement” and that such statements were untrue.
From that perspective, Ms B agreed that this would have caused concern to the mother. Evidence in reply however made it clear that the father sent the form to the mother with the intent, as he understood it, that the mother had given consent and therefore would sign the form and return it to him and he would then lodge it with the school in which case the content as he had given it would be correct.
The mother responded to the father by email on 19 December 2012[47] to the effect that she was aware that over the recent months he had been discussing the possibility of a move to Sydney with the children which had caused confusion for Y and it had weighed heavily on X and that she had arranged for both children to see a counsellor.
[47] Part Exhibit M5
The mother said that while she had been speaking to X she certainly had not agreed to him moving to Sydney in 2013 and that she could not see that it was in the best interests of either child for X to reside in Sydney and for the brothers to be separated.
When this was put to Ms B by Mr Byrnes, Ms B acknowledged that the mother had raised a concern about the application form for the College but it seems to me that this episode must be viewed in the context of the form never having been formally lodged with (omitted) College with the intent it be acted upon consequent upon the mother’s refusal to sign the form. Whilst the father can certainly be criticised for presuming that the mother was going to consent and can be criticised for not having confirmed this with the mother by other means beforehand, it seems to me that this particular issue does not attract significant weight to make a finding that the father is significantly untruthful or deceitful or acting maliciously. He held the view at that time that the sequence of events to which he referred in his email of 7 December was going to occur, and had it occurred, the form was appropriately completed.
It was put to Ms B during this passage of evidence that Ms B wanted to sheet home the blame for the dysfunction between the parents and their relationship to perpetual acrimony of the mother towards the father to which Ms B denied.
Ms B explained carefully that if reference was made to other passages of her evaluation, she talked about the dynamic between both parents having equal impact on the children and that she evaluated each parent’s capacity to facilitate the relationship of the children with the other parent.
In paragraph 104 of the Family Report, Ms B concluded that the mother appeared preoccupied with attributing all responsibility for the children’s distress as to the father believing he had engaged in a long standing campaign of having the children live with him and was unable to accept any alternate views about why the children may wish to spend more time with or ultimately live with the father.
The evidence falls far short of the Court being able to make any such findings, and I find on the balance of probabilities, that the father has not engaged in a campaign as alleged by the mother or engaged in any other conduct or acquiesced in or allowed or permitted any disrespectful reference to be made to their mother as Ms B says or has engaged in a campaign to secure the children’s return to Sydney.
It is significant in my view that Ms B also comments upon[48] how developmentally appropriate it is for children in late childhood and early adolescence to explore the idea of living with their other parent particularly children exploring their affinity with their same sex parent.
[48] Paragraph 105 of the Family Report
Ms B makes the observation that it is extremely sad that the mother appears to have not had the emotional resilience or resources to deal with these issues and manage it as a normative process for the children but rather appears to have been unable to separate her own emotions and needs in such a way to allow her to listen to and understand the children’s needs and support them in their developmental processes.
The father said clearly to Mr Byrnes that he had not received any formal notification by 7 December that there was a place for X in 2013.
There is no independent evidence before me of the form[63] being formally lodged at the school at about that time. On the balance of probabilities, it seems to me unlikely that the school would accept or act upon the enrolment form without the mother’s signature and which the mother had declined to give.
[63] See Exhibit M5
The father gave further evidence during cross examination that to the best of his recollection he received a letter from the school sometime in January to the effect that X had been enrolled for 2013 subject to the mother signing the enrolment form. The father gave evidence in cross examination that he subsequently informed the school that the mother did not consent to X’s enrolment which prompted the school to ask for a copy of consent orders.
At the resumed hearing on 19 December, the father was obliged to concede that on 26 November 2012 he had submitted an application for enrolment to (omitted) College but that the title had been amended to read “Information for enrolment” but otherwise contained much the same material as the application of 30 November 2012 and was clearly false as to X then living with the father and the mother then consenting to him being in Sydney.
I accept the father’s evidence that at that time he had consulted Solicitors with a view to making an application to changing the orders and that he had instructed his Solicitors to write to the mother and was aware that such correspondence had not been sent.
The making of such false statements by the father cannot be condoned but it was realistic to put in place measures to begin the enrolment process.
Equally, the father can be criticised mildly for not having made it clear to Ms B during the Family Report interviews that he had not consulted with the mother about his proposed enrolment of X at (omitted) College.
Weighing the whole of the evidence, I find on balance that before lodging the enrolment form for X at the end of 2012, the father should first have spoken to the mother and ensured that her consent was forthcoming rather than relying only upon X’s statement that she agreed. To this extent, the father attempted to force the issue and was untruthful in the statements that he had made to the school. With the benefit of hindsight, he should have realised that it was most unlikely the mother would consent, especially when she was slow to respond to his email of 7 December.
(ii) to spend time with the child; and
The evidence establishes very clearly that the father wants to and has ensured that he spends time with the children and communicates with them and that he is consistent with spending such time.
The mother has consistently resisted the father having an expanded relationship with the children.
The evidence establishes clearly that the mother has devoted her time to the care of the children.
(iii) to communicate with the child;
The father has ensured consistent communication with the children which has been frustrated by the mother from time from time when she has banned use of the mobile phone or suspended use of other electronic devices for communication when she perceived, wrongly, that the father was endeavouring to undermine the children’s relationship with her.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
It is clear on the evidence before me that the mother has borne the major responsibility for meeting the costs of supporting the children in all respects but the father pays Child Support as assessed and which is up to date and has been responsible for supporting the children when they are with him.
I am satisfied that the father has the capacity to support the children if they are living with him and meet any necessary school fees at a private school or otherwise.
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
If the children remain living with the mother there is likely to be a continuing adverse effect upon being separated from their father if their wishes to live with him are frustrated and prevented from being fulfilled.
I accept the opinion expressed by Ms B and not disturbed during cross examination that there is a concern that X’s ongoing mental health would be adversely affected if he remained living with his mother. Similarly, for reasons to which I have referred earlier, Y is also at risk if he remains with the mother whether X is there or not.
Equally, there is likely to be an initial adverse effect upon the children being separated from their mother and which will require some adjustment from each of them. Both children will worry about their mother and the effect upon her of being separated from them.
I am satisfied however that both children will readily adapt to living with their father and coping with the changes of leaving (omitted), a change of school, a change of friends, adapting to a different household and other children and every other attendant uncertainty with a move of this extent.
I am satisfied on the whole of the evidence that the risk of adverse effect is far less with the children moving to live with the father in Sydney than remaining with the mother in (omitted).
It is not as if the children are separated by such a distance from their mother that a relationship between them is impossible.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children will be separated from the maternal grandmother and the maternal step grandfather and other members of the mother’s extended family but it seems to me on the whole of the evidence, particularly given the maternal grandmother’s hostility to the father that the effect upon the children, if any, will be minimal.
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There is no significant practical difficulty or prohibitive expense if the children remain living with their mother so far as the father is concerned in continuing to see them.
To the father’s credit, he has travelled to (omitted) every fortnight and also been responsible for collecting and returning the children for each school holiday period. The father’s commitment in this respect is unchallenged.
Whilst the mother professes difficulty and expense if the children are living with the father in Sydney, I was less than persuaded by the mother’s evidence in this respect. It seemed to me more that the mother was seeking some indulgence or sympathy and was not addressing in a positive manner the prospect of visiting her children in Sydney.
In my view, it is neither practical nor feasible, if the children live with their father, to spend every fourth weekend with their mother in (omitted).
It is likely, on the evidence before me, that X will find a greater need to and benefit from mixing with his peers, enjoying extra-curricular activities, sport and the like as he begins to individuate from his mother and father given his present age. If Y is living with his brother in Sydney, the same will also occur over the next year or so.
To impose what I see to be a burden of spending every fourth weekend with their mother in (omitted) is likely to break down especially if the mother spends every other fortnightly weekend with the children in Sydney, which on the face of it seems unlikely.
It is significant in my view, that the mother did not adduce any financial evidence to support her contention that she was unable to afford to travel to Sydney on a regular basis to spend time with the children.
f) the capacity of:
(i) each of the child's parents;
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I have no hesitation in finding on the whole of the evidence before me, that both the mother and the father are able to provide for the children’s day to day physical needs.
I am satisfied that the father is able to provide for the children’s emotional and intellectual needs.
I am less than satisfied on the evidence that whilst the mother is able to meet the children’s intellectual needs, she is able to meet their emotional needs.
On the evidence before me, she is not able to do so given the failure by the mother to recognise the children’s emotional needs so far as their relationship with their father is concerned and to have adopted hostile attitudes and behaviours toward the father which she was barely able to conceal from the children and which has adversely impaired the quality of their relationship with her.
Whilst the mother has certainly complied with existing orders in relation to the children spending time with the father and to that extent has ensured and promoted the relationship with him in a physical sense, it is her undermining of that relationship which has caused the children psychological harm and in that respect I accept the evidence and opinion of Ms B.
Whilst the father can be criticised in some respects for not communicating earlier with the mother as to some matters as they emerged during the course of the evidence, I am satisfied that he acted in the best interests of the children as he perceived it and more importantly, such conduct on his behalf has not caused the children any adverse effect.
During the course of each party giving evidence, the father was more prepared to concede matters against his interest and was more prepared to concede that with the benefit of hindsight, he could have behaved differently on some occasions. No similar concession was made by the mother.
On the whole of the evidence, I am left with the distinct impression and have no hesitation in finding that the father has the greater capacity to provide for all of the needs of the children, but especially their emotional and intellectual needs and will foster and ensure the children continue their relationship with their mother.
I am not able to make a similar finding in respect to the mother if the children remain living with her and I find to the contrary.
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
No particular observation or finding is necessary as I have dealt with these matters earlier in these reasons, especially the children’s maturity.
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This has no application on the evidence before me.
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
For reasons given earlier, I find on the evidence, that the father has displayed an entirely appropriate attitude toward both the children and his responsibilities of parenthood.
I find the father was placed in a very difficult position in so far as the action he found necessary to take to address the children’s wishes expressed over a long period of time and in X’s case, becoming stronger and as the father correctly perceived in my view X reaching a significant stage of distress and frustration consequent upon his mother refusing to agree to him living with the father.
Whilst the father could be criticised for the actions he took in January of 2013 and later in March when he acquiesced in X’s wishes against existing orders, such criticism pales to insignificance when one considers the conduct of the mother in failing to contemplate or even consider the children living in Sydney with their father.
I find on the evidence that when the Family Report was published in early August 2013, the mother, rather than rejecting the criticisms of her made by Ms B and refusing to adopt the recommendations by her, failed to exercise responsible parenting when she chose to reject those recommendations. The evidence does not establish that the mother was unfairly treated by Ms B.
It was of course also open to the mother to proceed to a full hearing, as she did and which she did over an extended period as a result of a comprehensive cross examination of both the father and Ms B by Mr Byrnes, no doubt on instructions.
I conclude that the mother persisted with her resistance to the orders proposed by the father in the knowledge that both boys had expressed very strong wishes to live with their father and in the knowledge that the expert opinion for them to continue living with her whether together or with Y alone, would cause psychological harm which the mother was not prepared to accept let alone contemplate as being valid.
If find it is a sad reflection on the mother’s responsibility as a parent that she is unable to perceive or contemplate the children living other than with her. In so doing, the mother is denying each child the right to enjoy a full time residential relationship with their father for which they are clearly ready and would like to occur. It seems impossible for the mother to accept that it is now time, as Ms B put it for these children to explore their affinity with their same sex parent.
j)any family violence involving the child or a member of the child's family;
This has no application on the evidence before me.
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There is none.
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I would like to think that the orders I make will avoid the need for further proceedings.
If both parents are able to “draw a line in the sand”, one would be hopeful that no further proceedings would be necessary and if it comes to pass that either or both children wish to return to the mother at some stage in the future, the father will facilitate such a move provided he can be satisfied is bona fide and not on a whim or because the children are sympathetic with their mother if she reacts adversely to the children moving and brings pressure upon the children’s emotions to cause them to think that not only is it the father’s fault that they had moved but also their own fault for leaving.
I am left with the distinct impression the father is more likely to be pragmatic in such circumstances and make a realistic assessment of the children’s needs if that occurs.
m)any other fact or circumstance that the court thinks is relevant.
There is none.
Section 61DA
When making a parenting order the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child, subject to the presumption not applying or being rebutted in the circumstances provided in the section.
For reasons I have given earlier, I am satisfied that it is appropriate for the parents to have equal shared parental responsibility notwithstanding I have considerable concerns about the parties ability to communicate and with a distinct possibility of not being able to reach agreement about major issues.
However, the number of major issues to be determined for these children in the future is quite limited. While the mother seems to oppose (omitted) College, the matter was not the subject of any evidence during the hearing and I was not asked to consider a different school. There was a brief reference to the possibility of the mother preferring a different school.
The children appear to enjoy good health and there appears on the face of it no issue as to their religious upbringing.
Further I find it would not be in the best interests of the children for the father to have sole parental responsibility. There remains some faint hope of the parents being able to communicate effectively about the children and I will order counselling with a suitably qualified family therapist for this purpose.
Further, I find for the father to have sole parental responsibility will only fuel the mother’s suspicions of and adverse attitude towards the father further and which is not in the best interests of the children.
Section 65DAA
Consequent upon making an order for equal shared parental responsibility, the Court must then consider making an order for a child to spend equal time or substantial and significant time with each parent in certain circumstances.
There is no suggestion that the mother would contemplate moving to Sydney.
I therefore find on the evidence that whether the children are living in (omitted) with their mother or in Sydney with their father, it is not only not in the children’s best interests but also not practicable to spend equal time with each parent but impossible.
For the same reason, it is not possible to provide for substantial and significant time save during periods of school holidays.
Advantages and disadvantages if the children remain in (omitted)
Advantages
Both children will continue at their present schools with Y due to attend (omitted) in 2015 where his brother currently attends school.
Both children will continue to see their father each alternate weekend in (omitted) and spend holiday periods in accordance with existing orders with their father and Ms A and her children in Sydney.
Both children will maintain and keep their present friendships and enjoy their sporting activities and interests.
Disadvantages
The distinct disadvantages are those to which Ms B refers and which I accept and which involve the risk of significant psychological harm and well-being for both children.
Whilst this is not a case run on the basis that the boys may be separated with X moving to Sydney to live with his father and Y remaining in (omitted), there was a suggestion at some stage that X’s move to Sydney could be deferred for twelve months.
For the reasons given by Ms B, I find that it is not a viable proposition. It is in the interests of both boys and their emotional stability to remain together, irrespective of where that is.
It seems to me inevitable that X will vote with his feet if he is required to stay in (omitted) and which would therefore necessitate further proceedings if their mother again rejects or does not acknowledge it is appropriate to permit X to live with his father.
Advantages and disadvantages if the children relocate to Sydney
Advantages
There is likely to be a significant improvement in the emotional well-being for both boys if they live with their father and whilst they may feel concerned about their mother, those feelings can be ameliorated if the mother adopts and embraces the children’s move and conceals from the children any resentment she may have towards the father. I am concerned the mother will not be able to do so.
There is a considerable advantage for both boys to now live with their father and enjoy a residential relationship with him as well has his partner and her children and to embrace all that the father has to offer.
In the event of some difficulty, the father has the support of his parents and at least one sibling and his partner in caring for the children.
The children will continue to see their mother and I am satisfied the father will ensure it will occur.
Disadvantages
There is of course a significant disturbance for the children in moving from (omitted) to Sydney and they will carry with them the knowledge that such a move comes without their mother’s blessing or consent.
The children will lose their current friendships and their current sporting activities but I am satisfied on the evidence they will adapt and settle well into their new environment. It is not as if it is foreign to them.
The children will be removed from their mother’s full time care but the evidence is such that each of them is ready and wants to do so.
Conclusion
Cases involving a proposed relocation are some of the most difficult which come before the Court.
In this case the difficulty arises from the fact that there are two competent, loving, caring parents clearly devoted to their children and as Ms B correctly observed, able to meet their daily needs and help them to meet their full potential academically and socially.
These children have however been exposed to almost continual litigation between their parents which have resulted in communication between them being extremely poor and sometimes non-existent.
Ms B observed that both parents must accept that it is clearly behaviour on both their parts and certainly the dynamic between them which ultimately has been responsible for the children being exposed to such an environment for so long.
Whilst the father’s behaviour towards the mother can be mildly criticised on some occasions, I find on the whole of the evidence that it is the mother who must bear the greater responsibility for the dysfunctional relationship between the parents with consequent entrenched litigation laced with acrimony from time to time, predominately by the mother toward the father.
I have no hesitation in concluding, on the whole of the evidence that the opinion expressed by Ms B is correct and attracts very considerable weight, namely that the mother appears to have been unable to separate her own emotions and needs in such a way to allow her to listen to and understand the children’s needs and experiences and support them in their developmental processes[64]. Similarly, I find and give very significant weight to Ms B’s opinion that it is the mother’s resultant tendency to dismiss the children’s views and thoughts being not their own or related to some scheme of the father’s which have been extremely destructive to the quality of the relationships the children have experienced with her.
[64] Paragraph 105 of the Family Report
It is for these reasons that the mother must bear the greater responsibility for the dysfunctional relationship and if allowed to continue, the evidence before me is that it will have long term adverse effects for both children and consequently must come to an end.
Whilst Mr Byrnes submitted and urges upon me that in essence, it is the father’s failure to have withheld certain issues from the mother to advance his plan to foment difficulties between the boys and their mother and which has brought about the boys current wishes, I reject such submission. Similarly, I reject the submission that the father engaged in a plan to secure the boys living with him and for such reasons there is a degree of superficiality in looking at the children’s wishes alone.
I also reject the submission made by Mr Byrnes that the father painted a false picture to Ms B at the time of the preparation of the Family Report which had the effect of Ms B conducting an evaluation and forming opinions not based upon the whole of the evidence.
In particular, I reject the submission made by Mr Byrnes that the mother was unfairly treated by Ms B in the Family Report.
When I compare the respective proposals and consider the advantages and disadvantages in each place to which I have referred and consider the whole of the evidence, my conclusion at the end of the day is that it is overwhelmingly in the best interests of both children to live with their father in Sydney and to spend core periods of time with their mother, that is half of each school holiday period and on the fourth weekend of each school term.
The rationale is that I have some concerns about the mother’s willingness to commit herself to fortnightly weekends or indeed regular weekends with the children in Sydney. For these reasons, I propose to make an order that the mother be enabled to spend time with the children in Sydney on a regular basis by giving prior written notice to the father if and when she is able to do so.
I conclude on the whole of the evidence before me that it is detrimental to the health and well-being for both of the children to remain living with their mother in (omitted).
I am equally satisfied that it is important for both boys to live with their father to avoid further emotional harm for them as soon as possible.
I conclude on the whole of the evidence before me that the disturbance to the children’s present emotional well-being and the relationship they have with their mother is warranted.
I accept the mother may be disappointed with my decision, as indeed may members of her family. Whilst to some extent the Court can empathise with the mother and give her credit for the diligent parenting she has carried out to date, I ask her to bear in mind that the Court is required to make a decision in the children’s best interests and not the parents’ best interests.
It is tragic that the mother is unable to recognise the harm which I find she has caused her children or to accept responsibility for her conduct or the attempted undermining by her of the children’s relationship with their father. It is unfortunate that the mother is unable to recognise or accept her perpetual resistance to the children spending more time with their father has caused them considerable harm.
The greatest gift the mother could give her children is to be able to tell them that they move with her blessing, that she accepts that it is time to live with their father and that they will continue to see her on a regular basis and that she will be alright.
I urge the mother to convey such message to the children promptly.
I would like to think neither parent will perceive the outcome of these proceedings to be a victory for one and a vanquishing of the other. Neither is true. It is now time for both parents to embrace the decision the Court has made, accept such decision and to permit the children to move freely between both households.
I have taken into account the right of both parents to choose their place of residence and their freedom of movement.
I have considered also whether it is possible for the Court to formulate a different arrangement for the children and have concluded that it is not given the respective circumstances of each of the parents.
For these reasons I make the following orders and note the submissions made by each Counsel at the end of the hearing.
I certify that the preceding four hundred and eighty-eight (488) paragraphs are a true copy of the reasons for judgment of Judge Coakes
Date: 29 January 2014
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