Mitchell and Sadko

[2014] FamCA 300

FAMILY COURT OF AUSTRALIA

MITCHELL & SADKO [2014] FamCA 300

FAMILY LAW – CHILDREN – International relocation – Separation of siblings.

Family Law Act 1975 (Cth)

AMS and AIF [1999] HCA 26
Bolitho and Cohen (2005) FLC 93-224
Godfrey v Sanders [2007] FamCA 102
MRR and GR (2010) 263 ALR 368
U v U (2002) FLC 93-112

APPLICANT: Mr Mitchell

RESPONDENT: Ms Sadko

FILE NUMBER: MLC 470 of 2012

DATE DELIVERED: 9 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8, 9 & 14 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Atkinson

SOLICITOR FOR THE APPLICANT: Susan Snyder

COUNSEL FOR THE RESPONDENT: Mr Finkelstein

SOLICITOR FOR THE RESPONDENT: FLA Partners

Orders

1. That all extant parenting orders are discharged.

2. That the husband have sole parental responsibility for the children J born … 1998, K born … 2001 and S born … 2003.

3. That the children live with the husband.

4. That the children be permitted to travel internationally without the written consent of the wife.

5. That the husband retain the passports of all three children.

6. That the husband be at liberty to remove the children to live with him in the United States of America upon the conclusion of the second school term of their education in Australia for 2014.

7. That the parties forthwith provide draft proposals in relation to:

   (a)The holiday periods of the children during which time they shall return to Australia to spend time with the wife;

   (b)The arrangements for the wife to spend time with the children in the United States; and

   (c)The various electronic arrangements for time between the wife and the children when the children are in the United States and between the husband and the children when they are with the wife in Australia.

8. That in default of agreement by 4.00pm on Friday 30 May 2014 as to the precise nature of the orders referred to in the foregoing paragraph, the matter be determined by me in chambers.

9. That for the purposes of all travel of the children, the husband be responsible for the relevant airfares.

10. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

11. That all applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Sadko has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 470 of 2012

Mr Mitchell

Applicant

And

Ms Sadko

Respondent

REASONS FOR JUDGMENT

1. This is a parenting dispute over three children J aged 15, K aged 13 and S aged 11 years.  The issue is whether they should live with their father Mr Mitchell (“the husband”) or their mother Ms Sadko (“the wife”). 

2. If the siblings remain together and live with the husband, it will be in the United States of America.  If they remain with the wife, it will be in Australia.  It was the strongly articulated position of the husband that the children should remain together whether it was with the wife or with him.  Whilst the wife’s position was much the same, she said she was “open to conversation” and was “flexible”.  My understanding of her position was that the children should remain together and that was the position that remained throughout the hearing.

3. For the reasons that follow, I find it is in the children’s best interests to live with the husband.  That consequent move to the United States of America should be after the conclusion of the second Victorian school term this year. 

The background

1. The background does not provide much assistance and can be shortly stated.  The parties married in 1998 and separated in 2005. 

2. The husband is 49 years of age and a company director.  His corporate organisation is said to be involved in cutting-edge technology relating to the transportation industry.  The core business is the United States of America.  He is now married to Ms A who described herself as employed in a personal services field.

3. The wife is 40 years of age but not employed.  She described herself as an entertainer but is currently involved in home duties.  She is contemplating work and studying; she is interested in the possibility of becoming a counsellor.  She has otherwise done little paid work other than as a cleaner and has not entertained professionally for about three or four years.  She is also engaged in caring for her fourth child B who has just started school.  He is a child of a relationship that commenced after the marriage with the husband ended in 2004.  The wife’s relationship giving rise to B also ended, initially in acrimony, but that has currently resolved to the extent that she and B’s father share him on a week-about basis. 

4. In part, this hearing has focussed on the wife’s household and the various people who have been in her life and that of the children.  That is an issue of concern despite the fact that the children did not seem particularly worried about it.  They were more concerned about other aspects of their mother’s capacity as a parent.

5. For much of the period after separation, the husband resided in the United States.  He also lived in Australia for various periods of time and owned a house in Melbourne but recently had to sell that to assist with his living expenses.  He is currently entirely reliant upon the good graces of the investors in his business to keep providing it with capital injections to survive.  Counsel for the wife cautioned the Court about relying upon the husband’s word that he could support a family.  Counsel described the business as almost an alchemy.  I do not find that description accurate.  In my view, the evidence supports the conclusion that the husband may very well be successful in the near future. 

The 2012 final orders

1. In October 2012, final orders were made by consent between the parties in the Federal Magistrates Court.  All parties were represented by lawyers.  Those orders provided:

   ·   Equal shared parental responsibility of the three children;

   ·   J to live with the husband;

   ·   K and S to live with the wife;

   ·   The children spend time together each weekend but on an alternating basis with the parents; and

   ·   Shared school holidays.

2. The significant thing to note about those orders is that J was separated from her siblings.  The evidence now supports a conclusion that (then) 13 year old J was difficult and very intent on getting her own way.  I find that J certainly has not changed her mind about living with her father. 

3. The 2012 orders would otherwise seem on their face to be fairly innocuous but there were indicia of unresolved problems between the parties.  Those problems have resurfaced.  The relevant orders which then and still now highlight a problem were in the following terms:

   9.The Applicant Mother and Respondent Father restrain (sic) from criticising the other parent in the hearing or presence of the children or any of them.

   10.The Applicant Mother continue to attend upon Dr [C] at [D Medical Centre] or such other psychiatrist as she may be referred by her general practitioner from time to time and follow all reasonable direction of her treating general practitioner and/or psychiatrist including attendance.

   …

   12.The Applicant Mother within 7 days of receiving a written request from the respondent father is to provide a report from her general practitioner or other professional in writing confirming that she is currently engaging in treatment. 

   13.Either of the Applicant or the Respondent be entitled to take any one or all of the children being [J], [K] or [S] overseas at their expense and subject to the following provisions.

   …

   (b)that no child shall travel with a parent overseas during school term time without the written consent of the other parent, save in the event of travel for the purposes of an emergency;

   …

   14.The Applicant Mother use her best endeavours to minimise any time the children or any of them come into contact with [Mr E].

   15.The Respondent Father shall use his best endeavours to restrain his wife [Ms A] from criticising the Applicant Mother in the hearing or presence of the children or any of them.

4. To the extent that the October 2012 orders were final and intended by the parties to bring to an end all disputes to give some permanence to the future arrangements of the children, they clearly did not.  Sequentially, it must be observed:

   ·   Whilst the evidence does not support a finding of overt parental criticism occurring as prohibited by paragraph 9 of the orders, there is certainly no love lost between the husband and wife still;

   ·   To the extent that the wife had mental health problems at a time when the husband consented to her having the care of K and S, the evidence now before this Court shows that there has been a steady number of appointments between the wife and her psychiatrist (the professional referred to in paragraph 10 of the orders).  Those appointments still continue and I shall refer to the evidence of Dr C below;

   ·   In relation to the husband’s capacity to request “regular updates”, the husband produced a letter dated June 2013 in which a request was made but it was blandly rebuffed by the wife.  Whilst the rebuffing was not a refusal, it was hardly responsive;

   ·   The 2012 orders anticipated overseas travel.  The husband’s business activities have not changed even if the focus of his time has shifted from Australia to the United States during 2013;

   ·   The Mr E referred to in paragraph 14 is B’s father.  Rather than minimise Mr E’s parental time or contact, according to the wife, he now has a very good relationship with her and there is a happy mingling of the girls, B and the two children from Mr E’s previous relationship;

   ·   Whilst paragraph 15 required the husband to endeavour to stop Ms A from criticising the wife, Ms A has had a very significant role in the lives of the children including school drop-offs and attendances at Sport F events.  The evidence shows, and findings are required, that on two occasions, there were verbal and physical clashes between the two women.  The language asserted each by the other would have had them both arrested some years ago in a more polite society.  Despite their separate assurances that they were now polite to one another in their rare circumstantial meetings, and that they could cooperatively assist in the parenting of the three children, I have little confidence that the hatchet has been buried.

5. Two other observations also need to be made about the 2012 orders.  First, the parties agreed to equal shared parental responsibility.  The evidence shows their communication is poor, their dislike of one another palpable and their trust in each other lacking.  Decisions cannot be made on a cooperative or joint basis.  That gives rise to the obvious question of equal shared parental responsibility in the future but that is now exacerbated by what will be the tyranny of distance between Australia and America.  Communication and consensus between the parents in the past has not worked and with the manifestation of the problems from the 2012 order remaining largely unresolved, it is unlikely to work in the future. 

6. The second point is that the 2012 orders provided for J to live with the husband.  The evidence shows an entrenched position by J who has spent time with the husband in the United States of America including attending a school there.  What appears to be happening is that K and S are following in their sister’s footsteps.  The evidence is that as late as two weeks prior to the hearing, the children told psychologist Mr G of their desire to be with the husband full well knowing that they would be going to America.  During this period of time, the children had been living with the wife.  It was the wife’s evidence that since the start of the school year, there has been a significant change and that the children are much happier with her.  Mr G, in his evidence, described that as possibly a significant alteration of the children’s otherwise consistent views but it also could be that J in particular, is simply biding her time. He had no absolute answer and indeed, he had spoken with the children during the time they had been with the wife since the school year had started.

7. There is not sufficient evidence for me to conclude that there has been some form of significant shift by the children.  They have been living with the wife constantly since the start of the school year because the husband has been in the United States for his work purposes.  His wife Ms A has been with him.  The children seemed to have accepted that but nothing convinces me that there has been a radical shift in their views subsequent to their attendance on Mr G.  At best, the wife was saying that there were signs of change and a much closer relationship particularly with J was developing.  In my view, other factors such as J’s volatile personality and K’s strength in wanting to be with her sister, would suggest that any epiphany has been short-lived.

8. Whilst I accept without any hesitation that the wife loves the children and they her, the evidence I have heard enables me to find that the stability in the husband’s household (busy as that household may be with the work commitments) is greater than the comparable household of the wife.  The wife has moved houses and schools on a number of occasions including, to her credit, for positive reasons but she has also had partners and friends staying over in the two bedroom apartment.  Her lifestyle suggests that she is doing the best she can on limited pension benefits. 

9. Courts need to be cautious about reliance upon terminology such as “stability”.  In the wife’s household, three observations can be made.  First, there are two teenagers none of whom has expressed a complaint about being fed or clothed inappropriately.  It may be that their articulated complaints about their mother are simply teenagers flexing their independence.  Secondly, there have been a number of residential moves by the wife as well as changes of partners but now, the wife is ensconced in the property owned by her mother and for which she does not pay rent.  Adults of both genders still come and go.  Her current boyfriend stays occasionally but so do her girlfriends.  The wife sleeps on a bed made up in the lounge.  Common sense dictates that the children will have to negotiate around these difficulties if indeed that is what they are.  It may very well be that the children simply accept that that is the lifestyle of their mother.  I shall return to an example where K who was ill, and came home from school, refused to stay in the house because the wife was not present but her boyfriend was and he was asleep.  Thirdly, there is B with whom S is closely attached and with whom she plays even when the wife tries to get him to bed.  The wife’s perception of the role that the children play in respect of the care of B is markedly different from that which the children provided to Mr G.  Mr G described the children as begrudgingly complaining about having to undertake various domestic roles whereas the wife said that the interest between particularly S and B was mutual and it was hard to get B away from S.  I find it is more likely that Mr G’s description is correct but the more important question is why the children were saying those things about their mother if indeed they were not so.

10. Mr G described the children’s attitude about their mother as concerning.  He said he would have preferred the children to be ambivalent about their parents whereas these children all saw their parents as either good or bad.  They had little of a complimentary nature to say about their mother.  Their particular focus was on their obligation as they saw it to undertake various tasks. 

11. The real position in relation to the role that the children have to play is more likely to be that described by the children to Mr G even if it is embellished.  I find that to be the case because I am satisfied that there was a loud and aggressive argument between the wife and J over what J wanted to do.  As best as I can understand it, the argument stemmed from the fact that the wife wanted J to clean up her room and the child was resistant.  Whist in some senses that may be simply teenage difficulties, the other children described the argument as frightening and concerning to them.  I find it is more likely that the children did witness an unpleasant argument even if it subsequently settled down.

12. Having taken a cautious approach to the issue of the stability in the two households, I am satisfied that nothing I have heard could be seen as a criticism of the focus of the husband as a parent or about his lifestyle to provide a secure and safe environment.  He had plans for the children and in particular their education and, despite the pessimism of counsel for the wife about how he could carry that out with all of his busy lifestyle and that of Ms A, I am satisfied that there is a long history of the husband being integrally involved in the children’s lives and nothing is likely to change in the future.  Against that, I have the evidence of the constant changes in the wife’s household and the limited provision she can make for the children not in a material sense but rather her consistency of approach about parenting them.

13. There is nothing in the evidence that enables me to find that the children have been manipulated in some way by the husband.  The evidence of Mr G was concerning but in the end, I have children whose views are very strongly articulated.  They want to be with their father and whilst Mr G said that they could not fully understand the ramifications for the separation from their mother, there is nothing about the husband’s lifestyle that I heard which would suggest that he would not foster the relationship between the wife and the children, ensure that they had regular contact during holidays as well as electronically otherwise and care for them with his new wife.

The parties as witnesses

1. This is not a case in which I could determine the matter on the basis of the credit of either party.  Accordingly, I shall deal with each of the various incidences that the parties raised in evidence and make findings accordingly.  In respect of all of the findings in this case, I have decided the matter on the balance of probabilities which is the appropriate standard.  In respect of the evidence relied upon, the parties set out their evidence in chief in affidavit form.  Each party relied on more than one affidavit.  Between counsel, agreement was reached as to the objections to evidence and rulings were not required from the Court.

2. The husband was described as a determined man and his evidence indicated that he is very focussed.  Nothing I heard indicated that he did not love his children very much and wanted very much to be a part of their lives.  I accept he has struggled with trying to negotiate with the wife.  I accept his evidence unless I otherwise indicate.

3. The wife’s evidence was much more vague.  For example, she indicated that whilst it was preferable for the children to all stay together, she thought that it was conceivable that they could have a six month period in the United States something like an adventure.  When questioned about what all this meant and how practical it would be, she stepped away from the concept and was unable to explain how it would benefit the children.  Another example was her future employment prospects.  She had no set plan but was thinking about undertaking studies.  It is an unfair criticism to say that the wife should do otherwise having regard to the responsibilities she has had for the care of four children both on a full-time and a part-time basis of recent times.  However, as between she and the husband, I find the husband far more focussed and having a plan which covers all aspects of parental responsibility.

The orders sought by the parties

1. Both when the case began and when it finished, the parties’ positions did not alter. 

2. The husband sought orders that the children live with him in the United States of America and that he have sole parental responsibility for them.

3. The wife sought orders that the parties continue to share parental responsibility but if the husband was residing overseas, it was the parent responsible for the daily care of the children who should make decisions after involving the other parent in important parental decisions.  She also sought orders that there be electronic communication with the other parent and that the husband be responsible for any travel costs relating to the children one way or the other.

4. Neither party sought specific orders relating to their alternate positions about how any contact would work.  In final address however, it was common ground between the parties that the children would spend their school holiday periods with the non-resident parent factoring in the immediate Christmas Day period on an alternating year basis.  It was also common ground that the non-resident parent would be able to go to the place where the children were and have some time with them by agreement.  It was common ground also that the husband would be responsible for any travel on his part for that purpose and the wife for her part if she travelled to the United States.

5. There was a minor argument in relation to passports and who should hold them because all children have both American and Australian passports.  In my view, the only sensible approach is that the parent who has the responsibility for the children should have the passports and that for whatever purpose, those passports travel with the children if they are coming back to Australia for holiday periods as will be anticipated by the orders I propose to make.

The evidence of the parties

The wife’s movement after separation

1. The husband expressed concern about the changes of address and schooling subsequent to 2005.  He said that the wife’s circumstances were neither stable nor secure and the children were adversely affected by those matters.  That was the reason he returned to Australia from the United States in 2012.  I am not entirely convinced that these moves can all be seen as part of some dysfunctional lifestyle of the wife. I accept that there were plausible reasons for most of those moves.  The first related to the need to be close to a speech therapist and the second related to the wife’s relationship with Mr E at a point in time when she was pregnant.  She and Mr E lived in Suburb H and he then decided that he wanted to be closer to his children and cut the cost of driving so they moved to Suburb L.  When that relationship came to an end, the wife was left bereft of money and a motor car so she moved into the home in which she currently lives which was provided by her mother.  Whilst not ideal, there is no suggestion in the evidence that supports the assertion of the husband about the adverse impact upon the children.  In any event, the husband agreed to the orders in 2012 and since that time, the wife appears to have been in stable accommodation.

The husband’s move to the United States

1. When the orders were made in 2012, the husband indicated that his intention was to remain living in Australia.  J was to continue her schooling at a private school and the younger children were in a local primary school.  The husband was clearly responsible for the financing of private schooling.  The husband had been a very successful businessman and had been self-employed.  He then began the current venture which was a transportation industry process.  He invested all of his capital into the project anticipating that it could be completed in Australia but the main investors were in America.  Despite inquiries in Australia in relation to a suitable investor, he was unsuccessful.  At that time, J was living with him until a decision was made to move to the United States.  It is important to recognise that there was no application to preclude that move but it did have a significant impact on the separation of the children. 

2. During the period of time after J began living with the husband, the wife’s relationship with the child was poor.  That now seems to have improved particularly as a result of J and the other children all living together since the commencement of the 2014 school year.

3. The husband was asked several questions about his project and its financing arrangements.  He observed that if he had not gone to the United States, the project would have come to an end and he was adamant that when he consented to the orders in October 2012, it had been his ambition to run the project out of Australia.  It was put to him that there was little prospect of this turning into a successful venture.  He indicated that by the end of 2014, he expected the project to be paying him a successful income.  There is no evidence to the contrary and I see no reason to accept the husband’s evidence in relation to his ambitious project.

4. Throughout 2013, the husband and wife shared the children on an alternating basis.  J however was not restricted to that arrangement but saw the wife on a variety of occasions.

5. At the end of 2013, the children were shared over the summer holidays.  They were with the husband from 8 January 2014 to 7 February 2014 and then began living with the wife.  The husband returned to the United States on 18 March 2014 but there were weekend periods when the husband had them. 

6. Throughout 2013, there was a significant sharing arrangement for the two younger children and that continued during the summer holidays but as a result of the husband’s move back to the United States, the children spent time living with the wife from the commencement of the school year in 2014.  Even that period was not without controversy.

7. During the period of time just mentioned, the wife telephoned the husband in the United States of America to tell him that she had had enough and that the three children had told her that they wished to move to America on a permanent basis.  The wife’s evidence was that she felt “empty” and “exhausted” and that the husband had achieved what he had set out to do which was to hurt her.  I reject that on the basis that it was the wife who telephoned the husband presumably out of frustration as a result of what was happening with the children.

8. It was also during this period of time that the wife had a significant dispute with J.  J was described as running around in a hysterical way after an argument that ultimately ended in her apologising.  On any view, the incident that gave rise to the argument was innocuous.  From K’s perspective however it was a “huge” fight and there was lots of yelling and K became quite scared.  She described having to call her father for the protection of J.  S too confirmed there had been one “big fight” but that her mother and sister had got over it.  The description given by the two younger children to Mr G was only just prior to the commencement of this hearing and the incident itself had occurred only in the weeks after the husband had left the children with the wife.  In that meeting, Mr G observed the children to engage with the wife easily and comfortably and there was a sense of confidence and comfort about them.  Mr G thought there might be a unique teenage perspective about the children portraying their mother as unreasonable, inflexible and overbearing.  Mr G’s sense was that this did not reflect the reality of the situation.  There is no evidence however to suggest that the husband had orchestrated this event.

9. When Mr G looked at the relationship between the children and their father, he recorded that S noted that life with her father was calmer, easier and better.  She felt safer with her father even though she also felt safe with her mother.  For her part, K thought there was a “better vibe” in her father’s house.  She described her father as a better communicator, more empathetic and having more understanding.  The child had little of a complimentary nature to say about her mother.

10. On the evidence, notwithstanding the reservations of Mr G, there was an element of truth in what the children were saying and the husband was making an offer that was far more attractive to the children that could not be matched by the wife.  Mr G noted the husband’s style to be “more embracing” and that incited a level of enthusiasm that the wife could not match.

11. Mr G thought that children of the ages of at least K and J were talking from an egocentric existence.  That is, they were articulating what it was that they wanted regardless of whether or not it was good for them.  Mr G was not particularly perturbed about the argument in the household describing it as possibly normal teenage behaviour.  I find that it is most likely that there are difficulties in the wife’s household and that the nature of the relationship between J and the wife is not as the wife portrays it.  On the contrary, J is a very strong-willed girl who has made up her mind about what she wants and to the extent that that desire is thwarted, J is prepared to confront her mother.  The consequences of that are that the other children see their mother as unstable and frightening.

The children’s relationship with Ms A

1. The unchallenged evidence is that the children have a good relationship with Ms A.  K was described as being very close with Ms A even to the extent of sending text messages whilst she was living with her mother.  The wife confiscated K’s telephone only to later return it after an argument.

2. Ms A has been involved in the care of the children whilst the husband has been absent for work purposes including delivering them to various events such as the Sport F.  That gave rise to problems between the two women.

The wife and Ms A

1. In 2013 there was a confrontation between the two women which may not have been overheard specifically by the children but they were certainly aware of it because they were not too far away.  This occurred in front of the children’s school and the wife approached Ms A wanting to talk about K’s future schooling.  The response of Ms A was to say that she should take it up with the husband and walked away.  Why the wife would approach Ms A remains unclear.  The wife then went to Ms A’s car and opened the door and described her as a “[Nationality M] fucking bitch”.  Ms A indicated that things had been a bit more polite since that time but then again, there have been few opportunities otherwise.  One such opportunity occurred at the Sport F centre at which the children attend.  This had something to do with the parties’ dispute over the timing of the collection by the wife of the children.  The wife accused Ms A of over-reacting because the wife was not prepared to wait whilst the children changed from the Sport F clothing.  The wife’s response was that she was keen to move on because she had to pick up B.  This led to a confrontation.  Ms A described the wife as shouting but the wife described it as simply raised voices.  Ms A endeavoured to bypass the wife and connected physically but refused to accept that it was any form of pushing.  That brought about the intervention of a Sport F coach.  The wife took it sufficiently seriously to report the matter to the police.  Perhaps unsurprisingly, they were not particularly interested.  Sadly, the Sport F organisation then banned the wife from attending.  Whatever one might view about this incident, the wife certainly did not come out in a favourable light.  Because the wife could no longer go there, the children were unable to attend because of the absence of the husband in the United States.  That meant that K who is apparently an elite Sport F player for her age, had to attend a different Sport F centre. 

2. When viewed objectively, I am critical of the wife for having taken the stance that she did but all that happened was that the children became distressed.  When the wife was challenged about her own behaviour, her response was that she had been bullied by the husband in the sense that activities were organised for the children and she had to simply “toe the line”.  She said she felt intimidated.  I do not find that to be the case on the evidence.

3. I had the opportunity to observe Ms A being cross-examined and nothing I heard indicated that she was a protagonist in any way and that her main focus was on avoiding a confrontation with the wife in front of the children.  I could not say the same in respect of the wife and the justification for her reaction that she had simply been bullied ignores the fact that these activities were all for the benefit of the children and she showed little enthusiasm for them.  I do accept that these activities and the attendance at the private school had financial consequences but the wife did not seem to have taken up that issue in a significant way with the husband.

The husband’s proposal for the care of the children

1. The husband set out the details of his living arrangements in the United States as well as his proposals for schooling.  Notwithstanding all of the assertions about his financial situation, he made clear both in his evidence and in final address that he would fund whatever trips were necessary for the children to return to Australia.  Counsel for the wife submitted that I should be very cautious about that and indeed indicated that the financial matters might be the determining factor in this case.  He submitted that it was clear on the evidence that the husband had no income and was living off capital provided by the investors and there was no evidence before the Court as to how long that would continue.  He described the husband’s view about the future finances as optimistic and noted that investors could be capricious.  None of that evidence is before me.  The evidence indeed was in the form of letters from the investors urging the husband to go to the United States because that was where they wanted him to operate the business from.

2. There is no reason for me to doubt that the husband would ensure that the children were returned to Australia having regard to the interest that he has shown in their activities since separation.  Whilst in Australia, the children attended a private school which was funded by the husband.  Nothing I heard in his cross-examination indicated that his word in relation to the benefits of the children could not be trusted.

3. Counsel for the wife indicated that in financial terms, the wife was more stable albeit she had much more modest means.  He observed that she was living rent free and the Court should be entitled to presume that that would continue.  In my view, the wife’s future financial circumstances would make it such that if the children were living in Australia, the husband would still have to fund their travel to see him in the United States in any event.  On the basis of the wife’s current income which is dependent upon the Centrelink benefits, she could not support the sort of payments that one would expect with three children travelling internationally.

4. I find therefore that the husband is in a position to fund the sort of proposal that he was contemplating.

The parents’ relationship with each other

1. I have earlier observed about the relationship between the wife and Ms A.  That relationship was described as polite but it certainly has not moved much further.  In relation to the husband and the wife however, each accused the other of being responsible for the poor communication.  As I indicated earlier, the wife’s view was that the husband was intimidating her.  Nothing I heard indicated that that was the case.  The husband described trying to communicate with the wife “for years” and he acknowledged that he had reached the point of frustration.  A good example of the poor communication between the parties can be seen about their view of what was described as the wife’s 40^th birthday.

2. In cross-examination of the husband, it was put to him that he had negotiated with the wife to permit the three children to have some time with her on her 40^th birthday but only if she gave him a make-up day.  The husband denied that indicating that she could have time with the children providing she brought them back on the same day.  It was asserted by the wife that he even suggested that that make-up day was to be K’s birthday.  When the wife was challenged about this particular incident, she confirmed that all of this communication had been by text message.  She later produced the various text messages but nothing I read indicated that there was a demand for make-up time.  The communication got to the point where each was effectively saying that the other would not reciprocate so the communication was at an end.  This incident did more to establish that the communication lines between the parties were very poor.  In his overview, Mr G described this as a high conflict family.  The wife’s confrontation with Ms A was not flattering.  I find therefore that there is little prospect that any form of negotiation can be made to bring about important decisions concerning the children and the 40^th birthday example epitomises that. 

3. When the husband was cross-examined about his past communication with the wife, he said in a very resigned way that the wife was making unilateral decisions.  Counsel for the husband put to the wife in cross-examination that that attitude could be seen in the way in which she completed school enrolment documents.  From the husband’s perspective, the wife had put anyone other than himself as the emergency port of call.  Indeed on one form, she left him off altogether.  The wife’s view was that the husband could make his own arrangements to have details put on the forms and that in any event, he was in the United States so there was little point as having him as the emergency contact.  From the husband’s perspective, this was an example of the wife simply ignoring him.  From the wife’s perspective, she took the approach that it was a pragmatic way of ensuring that if there was a problem, she was contacted.  Both perspectives are open to me and the wife’s explanation was quite plausible.  Nothing in the evidence or in the forms tendered to the Court however, indicated that the wife wanted the school to know about the husband’s involvement in the lives of the children.  I find on the balance of probabilities that it would be most likely that the wife would make little mention of the husband.  In my view, criticism is not necessary in this particular incident but it certainly epitomises the problem of communication between the parties and nothing I heard suggested that will change.

The incident involving K on 31 March 2014

1. Contrary to what I have just indicated about the school forms, on 31 March 2014, the school rang the husband to indicate that K had a fever and he should come and collect her.  At that point, he was not aware of whether or not the school had contacted the wife.  He immediately went to collect K.  He said in evidence that he was not able to care for the child that day because of commitments that he had so he took her to the wife’s home.  He said that it was inappropriate for K to remain in his temporary residence because it belonged to a friend.  He then described a situation where he took K to the home and waited outside just so that K could confirm that everything was fine and he could leave.  K went inside and then returned to indicate that her mother’s boyfriend was in the wife’s bed asleep and she felt uncomfortable about staying there in the absence of the wife.  The husband then took K back to his temporary residence and looked after her for the rest of the day.

2. The wife’s explanation was that she had attended B’s school and had not been called.  There was nothing sinister about this particular event but two observations must be made.  The inability of the husband to communicate with the wife created a problem for K.  The second point is that K was not sufficiently comfortable about staying in the home with her mother’s new partner.  When questioned about the duration of the wife’s new relationship at that point in time, she said that it had been extant for about five months.  It was no doubt compounded by the fact that the wife’s bed, in which the partner was sleeping, was indeed the couch in the lounge room.  All that adds to the perception of the wife’s home life being disorganised or unsettling for the children such that they told Mr G that things were not as stable in their mother’s home as they were in that of their father.

The views of the children

1. The wife did not dispute that the children were articulating their views very clearly.  In her evidence, she described her relationship with the children as close.  She acknowledged that the children were telling Mr G what they wanted and that was to live with their father in the United States.  She conceded that her relationship with J had been strained but endeavoured to say that that was not the case now.  When asked what her view was about J’s wishes, the wife’s response was that J was saying those things but it was about her wanting the adventure rather than knowing what was good for her.  She confirmed that J had been unhappy about indicating opposition to all the children going to the United States.  When asked how she explained B’s view, the wife said that the child was quiet and certainly had not said to her the things that had been said to Mr G.  That said, the wife confirmed that K had told her that she wanted to live in the United States and with her father.

2. S on the other hand had made clear that she did not want to be separated from her sisters.  The wife’s response to that was to say that she was surprised.

3. I am satisfied that the views expressed by the children are indeed those articulated by Mr G. 

The separation of the children from B

1. Neither party gave any significant evidence about the impact on the children of the separation from B.  The husband described B as a beautiful child.  The wife described the relationship with the children and B as a sound one.  Mr G contemplated that and indicated that in an ideal world, all four children should be together but that in respect of the three girls, each had a different relationship with B.  He thought that S was the closest and it was a factor to be taken into account but if there was a question of any hierarchy, the attachment of the three girls to the husband was much stronger than their attachment to B.  He thought in respect of J that the relationship was relatively limited.  I have taken into account that the wife only has B for half of the time in any event and he is now at school.  It must follow that the amount of time that these three girls have had with B bearing in mind that they too were on a week-about arrangement throughout 2013, was relatively modest.

The evidence of Dr N

1. I have already referred to the psychiatrist Dr N.  He has been practising as a psychiatrist since 1980.  He was not called as a witness and his evidence was therefore not challenged.

2. Dr N’s report attached to an affidavit was filed in the Federal Magistrates Court in May 2012.  It was therefore part of the evidence that the parties had and was before the Court when the orders were made by consent in 2012.  The husband relied upon the evidence albeit almost two years old.  Reading the introductory material to Dr N’s report shows that he was requested by the Independent Children’s Lawyer to do a psychiatric assessment of both parties.  He noted the essential thrust of the husband was that the overall welfare of the children was compromised by the wife’s psychiatric condition.  Dr N had the wife’s consultant psychiatrist’s views that she suffered from a borderline personality disorder and major depression which had been treated for the preceding 18 months.  That treatment involved medication.  Whilst the consultant psychiatrist who was treating the wife had no concerns about her parenting of the children and had found her a caring and considerate mother, the husband persisted in indicating that her care of the children was compromised because of her medical condition.  Dr N also had the benefit of another psychiatrist who had treated the wife where the specific focus was the wife’s mood difficulties arising out of her relationship with Mr E.  That psychiatrist noted the wife describing abusive and minor incidents which had made her feel angry and she lost control of her emotions to the extent of putting B at risk whilst she was driving her car. 

3. The evidence of Dr N is still relevant.  In the context of a complaint to the husband by J about Mr E, there was certainly substance to the problem.  It was the wife who told Dr N that she had concerns about B’s safety given Mr E’s manner and the way in which he related to her children.  Dr N at that time interviewed the husband.  He told Dr N that J had disclosed to him that Mr E had been inappropriate walking around the house with his penis exposed only to be told by the wife that this was normal.  Whilst the wife in cross-examination did not accept that proposition, she equivocated to Dr N.  What he read was symptomatic of a dysfunctional if not chaotic time in 2012.  Whilst it was the wife’s case that J was a difficult child at 13 and very much had her own mind, it is not surprising that the child was looking for stability and saw it in her father.  The wife told Dr N of the difficulties she had in 2012 with J and said that she may not have been able to care for J in the manner that she could have.

4. One of the disputed facts in this case is the reporting by the children of their mother’s “emotional melt-downs” and her leaving them to cope with her emotions.  In cross-examination, the wife denied all of that.  However, in 2012, Dr N said that the wife told him she was often moody and would rage against herself and hit her head but otherwise not engage in self-harming activities.  In 2012, she had felt frustrated and often lonely.  Despite the fact that she was then being treated by psychiatrists with medication, the wife described frequently recalling being tearful and emotionally flat.  That makes the evidence of Dr C very important but it also gives some insight into the lifestyle of the wife.

5. When Dr N saw the wife, she was moving to the home that she now lives in with the children.  She acknowledged to Dr N that this would be crowded but she said she would have to find some work and “move in order to more appropriately accommodate the children”.  In her evidence before this Court, the wife said that her mother was prepared to assist her and I understood that to mean that if another property was to be purchased which was more appropriate, that would follow.  The absence of the wife’s mother supporting this conclusion is relevant.  It would have been significantly more helpful if the wife had produced that evidence particularly as the statement was made to Dr N in 2012 and nothing has happened since.

6. In relation to the relationship between the wife and the children, she told Dr N that after her separation from Mr E, her relationship with J improved dramatically.  She described K as liking to see her father and was prepared to consider a shared week-about form of contact.  That is indeed what happened.  Importantly, the wife told Dr N that if K went on that basis, S may need to go as well “in order to be with her sister”.  Thus it cannot be said that the husband has manipulated the current arrangements in some way.  These very problems were looming in 2012 and a compromise was reached through the court process but it was clearly an unhappy resolution. 

7. Whilst the wife’s evidence was that her relationship with J had changed in the month of March and April and certainly after J saw Mr G, that is what the wife told Dr N had occurred after her relationship with Mr E ended.  Mr G’s evidence indicates that J was not quite that comfortable with her mother and another 18 months has now gone by.  The wife told Dr N that K liked being with her father and that is what the child told Mr G.  It is equally unsurprising therefore that what the wife told Dr N about S is in fact what is now happening and the child wants to be with her sisters.

8. In his diagnosis, Dr N in 2012 described the wife as suffering borderline personality traits and recurrent post-natal depressive illness.  That said, Dr N believed that the wife would be able to care for the children provided she continued to commit herself to the psychiatric treatment she had begun with Dr C.  He also made some observations about the husband but having regard to the evidence I heard, the problem was the wife rather than the husband.

9. Albeit that the evidence of Dr N is now considerably aged, I am satisfied that it is of significance and that it explains a lot of what is now happening.  Thus, the evidence of Dr C becomes important.

Dr C

1. Dr C is a consultant psychiatrist who provided an affidavit but also submitted himself to cross-examination.  Dr C was very supportive of the efforts made by the wife and saw his role as supportive.  He said that during the last twelve months, the wife did not appear depressed and that recently, she had told him that she had the full-time care of the children.  Whilst that may have been a matter of interpretation or even misunderstanding, Dr C was confident that the wife had the problems of her depression under control with a medication that he was regulating.  He confirmed that with her background of illness, future episodic relapses must be considered as a possibility.  He said for that reason, psychiatrists kept their patients engaged with medication.  Dr C was concerned that if the three children went to the United States to live with their father, that could trigger another episode of depression but that would be his responsibility to regulate the dosage of the wife’s medication.  On the other hand, Dr C said that the stressors of having the children together might, but not necessarily would, lead to problems again related to depression.  He acknowledged that there could be a deterioration if there was defiance from someone like J.  He had no doubt that it was necessary to continue the treatment.  Indeed, he said it would be imprudent for it to be discontinued.

2. Dr C’s evidence clearly shows that the wife’s treatment is important and indeed, if the children do go to the United States, she needs to have Dr C’s support.  A decline in the wife’s mental health would not be good for the children but that would be a problem whether they were in the United States or in Australia.  In the United States, they still need to have time with their mother either in holidays or by electronic communications and if she is unwell as manifested by her past problems, the children would miss out on any form of relationship with her.  Equally, if they stayed in Australia, the stressors of having two children out of the three at least unhappy about going to the United States creates the same problem.  The children would miss out if their mother became unwell.  The Court’s focus must be on the best interests of the children and the most secure life for them must be considered to be in the care of the husband because of some of those issues about the wife’s mental health.

Which proposal?

1. Any decision about where the children live must be determined on the basis that their interests are the paramount consideration of the Court.  It is helpful therefore to look at the legal aspects to guide that determination.

The legal issues

1. Relocation cases are but another type of parenting case to be determined according to the principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Whilst the Court is required to consider the proposals of the parties, it is not necessarily bound by those proposals (see, for example, U v U (2002) FLC 93-112 and Bolitho and Cohen (2005) FLC 93-224). The Court may, therefore, order an alternative proposal if it more suitably serves the best interests of the child. In this case, that possibility is so much more difficult because of the position adopted by each party.

3. The objects and principles underpinning the provisions of Part VII that are to be applied are set out in s 60B. This is the philosophy which must guide what the courts do when examining each of the mandatory provisions.

4. The objects are to ensure that the best interests of children are met by ensuring they have the benefit of both parents having a meaningful involvement in their lives but always provided that is consistent with their best interests. They also include ensuring the protection of children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. To the extent that there is a contradiction between those two principles, the legislation has now rectified any doubt by making it clear that the protection of children takes priority over the meaningful relationship.

5. The objects continue by focussing on parental responsibility. It is the intention of the Parliament that courts when contemplating making orders, ensure that children receive adequate and proper parenting to help them achieve their full potential and ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

6. Those objects are then reinforced by a series of principles. The underlying premise is that unless it would be contrary to a child’s best interests (relevantly in this case):

   (a)children have the right to know and be cared for by both their parents;

   (b)children have a right to spend time and communicate with both their parents on a regular basis;

   (c)      parents jointly share duties and responsibilities;

   (d)      parents should agree about future parenting; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   Where parents are to be separated by the tyranny of distance, the focus on those objects and principles remains the same but it is much harder to fulfil them.

7. With international travel being easier (albeit still expensive and a fact of life) and with electronic communication such as Skype so much more available, the objects and principles can still be met but to a different  standard to what might be achieved at a local level. As Kirby J observed in AMS and AIF [1999] HCA 26, in a case involving international relocation, where it was necessary when making decisions affecting a child's residence the Court had to attempt a resolution of often irreconcilable considerations. This case is one such example.

8. Kirby J went on to note that the Act used language such as the best interests of a child being the paramount consideration. As his Honour reflected, “the ‘paramount’ consideration is not the same as the ‘sole’ or ‘only’ consideration” and that meant that the court was not obliged to “ignore the legitimate interests and desires of the parents”. In this case, the evidence shows that the husband has moved on in his life and has a business venture which must now be conducted out of the United States of America. The wife has a child to another person making her prospects of leaving Australia remote. Her prospects of work (if any) are in Australia. The considerations are irreconcilable and the solution lies in making the best of what can be said of each of the relationships between the parents and the children so that the children achieve their full potential. That is one of the objects of the Act.

9. There is already a relationship between the children and each parent. That enables the Court to focus on what benefits the children already receive from those relationships and what would be different if a significant change occurred such as contemplated here. J has already experienced life with her father in the United States and it is interesting to observe that the wife’s evidence now is that there is a closeness occurring. That has not altered the desire of J to remain with her father but it shows that J benefits from what she receives from her mother. Section 60CC(2)(a) requires consideration being so given.

10. As Kay J observed in Godfrey v Sanders [2007] FamCA 102:

    Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

11. To be a meaningful relationship, it must be significant, healthy, constructive and advantageous to the child.  Children need their parents to lead by example about self-discipline, to learn to develop the ability to relate with others and to learn about the privileges and responsibilities which will devolve upon them as parents. Children spend much of their days pre-occupied with their own worlds. It is the responsibility of parents to provide care, encouragement and provide the opportunity to develop. Whilst not necessarily optimum requirements, those attributes can be achieved at a distance provided the absent parent maintains the focus and gets the attention of the distracted child. Here, the husband has the ability to provide for the children. He was not challenged about that ability. He has a close relationship with all of the children. He was not challenged about that. His focus is on them achieving their full potential by having education, stability and discipline. Nothing I heard suggested that J had been allowed to drift from those objects when she went to the United States with her father.

12. Here, the wife has not been able to provide the same stability and that has not been just on the basis of economics. The children’s perception is that their father provides structure and stability. The wife’s view is that the United States concept is seen as something of an adventure. I do not accept that. Mr G thought that the children were attracted to their father by what he was offering but I find that he is also offering structure, stability and a continuation of the relationship with the wife. 

13. Thus, despite a move to the United States, there is no logical reason why the same philosophical values could not be imparted by each parent although perhaps not to the optimum level, but certainly in an advantageous way for the children.

14. As Kirby J also observed in AMS and AIF (supra) if there is conflict between the various legislative objects and principles, “priority must be accorded to the child's welfare and rights”. I find here that there are irreconcilable conflicts but the daily care standards of the husband will be more consistent than that provided by the wife and the children’s chances of development will be better in the care of the husband.

15. Thus, returning to Part VII of the Act, when making a parenting order, s 60CA is fundamental. It says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

16. In determining what is in a child’s best interests, the Court must consider the considerations set out in s 60CC(2) and (3) of the Act. In many ways, these replicate the objects and principles underlying Part VII.

17. Having regard to the views expressed and the findings above, I shall deal with these globally.

Section 60CC(2)

1. As earlier indicated, these children already have the benefit of a meaningful relationship with both parents and there is nothing in the proposed orders that will alter the quality of those benefits.

2. Although there is poor communication between the parents and a dislike for one another, there is no evidence here to concern the Court that any proposed orders would not protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(3)(a)

1. The Court is obliged to consider (but is not bound by) any views expressed by the children. The weight to be given those views depends upon such things (but not only those things) as their maturity and level of understanding. I have set out above the views of Mr G about that. He would have preferred that the children were ambivalent about their parents rather than taking a side loaded with criticism. Be that as it may, there are two relevant realities here. First, J is very fixed in her view, K is following the same path and S should not be separated from her sisters. It is conceivable that J is just biding her time. Secondly, nothing I heard suggested that positive things would happen if the Court ruled against the children going to the United States. There is no indication to my satisfaction that the children’s lives would be improved by staying in Australia. Thus, the views of the children should be given weight on the basis that they are well thought out and considered.

Section 60CC(3)(b)

1. The children have different relationships with each parent as discussed above but they each also have a very close and secure relationship with the husband wife Ms A. There was a suggestion about the children’s relationship with the maternal grandmother but that evidence was not tested. There is a closeness between S and B and the trip to the United States will separate the siblings but as Mr G observed, the relationship between the girls is stronger and, I find, more important. At the moment. I am uncertain and unable to make any finding about the wife’s new partner’s status as far as any relationship with the children is concerned. The evidence of the husband about K’s reaction may have simply been descriptive of a teenager’s response to being alone with a male with whom she was not overly familiar but the longer term role of this man is also unclear if the children were to remain in Australia. That is not unusual in many separated families but having regard to the wife’s problems since separation and the movements of the children, stability is more important in this case than in many others.

Section 60CC(3)(c), (ca), (i)

1. As earlier observed, the husband has always taken the opportunity to spend time with, and fulfil his obligations to, the children. Whilst there was an inference from the wife’s evidence that he was selective about support but the evidence does not enable me to find that he was recalcitrant. He has provided private schooling fees. I found his attitude to the children and to his responsibilities as a parent commendable having regard to his business commitments. The wife too has done an admirable task particularly after the husband returned to the United States earlier in 2014. She took on the task of the three children with limited support and had to fall back on government assistance. I do not understand her argument that the husband had failed to provide assistance. Nothing I heard would enable me to find that the husband had not demonstrated his focus was on the needs of the children.

Section 60CC(3)(f)

1. The husband convinced me, and he was not challenged about, his capacity to provide for the needs of the children. He had J in the United States and there was no evidence to suggest that he had not done a good job as a parent there. The wife submitted that he would not have the finances to continue the necessary care of the children if they were to go to the United States but the evidence does not support such a conclusion. Although the inference that counsel for the wife would have me draw was that the business project was some sort of wish or prayer, I find he is a very focused individual whose optimism indicated that he would be benefiting financially later this year. The absence of success there would not in my view, make much difference. I find that the husband is focused on ensuring that the children are well looked after. The wife had no real plans. Her statements to the psychiatrist about her own future were commendable but there is no comfort for me in her saying that her mother will continue to assist her with accommodation including if necessary, another home. That evidence was lacking.

Section 60CC(3)(d) and (e)

1. The evidence of Mr G supports the conclusion that this is more than just an adventure. These children want to be with their father. The absence of their mother is of concern but it would seem not to the children. The wife has the ability to communicate by electronic means and the husband’s offer to maintain the personal contact impressed me. I do not expect that the orders I propose will adversely affect the children.

2. There is clearly a problem of distance involved but the commitment just indicated should cover that problem. I shall make orders to reinforce that obligation.

Section 60CC(3)(j)

1. I am satisfied there are no family violence issues of concern in this case. Whilst there is evidence of the problems between the two female adults, I do not consider that should affect the orders I propose nor, once those orders are in place, are the children likely to be exposed to that problem.

Section 60CC(3)(l)

1. Although the parties did not contemplate it, I considered whether it may be beneficial for these children to have a trial run in the United States as was mooted by the wife in her evidence. When she had said it, she withdrew from the suggestion. In my view, it would not be practicable. These children need to know with some certainty where their futures lie. If the situation for the children alters, there is every possibility that they will return of their own desire.

equal shared parental responsibility

1. Section 61DA requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility. 

2. It provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.

3. Section 61DA(4) also says that the presumption may be rebutted if I am satisfied that it would not be in the children’s interests for it to be applied. In this case, because of the nature of the relationship between the parents and the tyranny of distance, a shared approach to major decisions will not work. That is not to say that the wife should not be involved or that the husband should not have an obligation to inform her not only in respect of what is happening but also in relation to what is proposed and to consider her views. If nothing else, the continual Skype communication of the children and their visits back to Australia will be problematic unless the wife is not only informed of what is happening in their lives but the success of schooling and health. 

4. Because of s 61DA(4), the presumption must be rebutted here. Even if that were not so, s 65DAA(1) provides that if a parenting order is to provide for equal shared parental responsibility, the court must follow a particular pathway.  In MRR and GR (2010) 263 ALR 368, the High Court of Australia noted that the section was expressed in imperative terms obliging the Court to consider both the question of whether it was in the best interests of a child to spend equal time and whether it was reasonably practicable to do so. With the children in the United States, it would not be reasonably practicable having regard to the nature of the current relationship between the parents. The Court went on to say that the same questions had to be asked in relation to substantial and significant time with each parent if negative answers were given to the questions in relation to equal time.

5. In my view, there is no basis in this case to make an order for equal shared parental responsibility and even if there were, it would be impracticable for the parties to have equal time because of the husband’s business commitments in the United States.

I certify that the preceding One Hundred and Three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 May 2014.

Associate: 

Date:  9 May 2014