Monk and Malone
[2016] FCCA 2424
•22 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MONK & MALONE | [2016] FCCA 2424 |
| Catchwords: FAMILY LAW – Parenting – Relocation – where the father seeks an order that three children who have lived primarily with the mother since separation four years ago live with him – where the mother wishes to relocate with the children to a location 700 kilometres from the place where the father prefers to live. |
| Legislation: Family Law Act 1975, ss.60Cc, 61DA, 65DAA |
| Cases cited: Adamson & Adamson [2014] FamCAFC 232 Ulster & Viney (2016) FamCAFC 133 |
| Applicant: | MR MONK |
| Respondent: | MS MALONE |
| File Number: | NCC 3323 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 4, 5 & 6 July 2016 |
| Date of Last Submission: | 6 July 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 22 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rugendyke |
| Solicitors for the Applicant: | Everingham Solomons Solicitors |
| Counsel for the Respondent: | Mr Bithrey |
| Solicitors for the Respondent: | Bell & Johnson Solicitors | |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms Marr | |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Tamworth | |
ORDERS
The father and the mother shall have equal shared parental responsibility for X born (omitted) 2008, Y born (omitted) 2010 and Z born (omitted) 2012 (“the children”).
The children shall live with the mother.
The mother is permitted to relocate the children’s place of residence from (omitted).
In circumstances where the mother and children reside more than 150 kilometres of the father the children shall spend time with the father as follows:
(a)For the entire first and third term school holidays.
(b)For the second week of the term two school holidays from midday on the second Sunday until midday on the third Sunday.
(c)During the Christmas school holidays:
(i)Being the first half in odd years, from midday on the first Saturday until midday on the third Saturday; and
(ii)The second half in even years, from midday on the third Saturday until midday on the last Saturday.
(d)At such additional or alternate times as may be agreed between the parties.
To facilitate such time the parties shall either meet at an agreed changeover point which is halfway between the parties’ residences or shall arrange for the children to fly between the airport closest to the mother’s home and (omitted), with the father to book and pay for the children’s flights at the commencement of the time and the mother to book and pay for the children’s flights at the conclusion of the time.
For the purpose of these orders the school term is the term of the state in which the children are living at the time.
In circumstances where the mother and children reside within 150 kilometres of the father the children shall spend time with the father as follows:
(a)Subject to orders (b) & (c) from 4.00pm on Friday until 4.00pm on Sunday on each alternate weekend.
(b)If Mother’s Day falls on a weekend when the children would otherwise be with the mother the children shall spend the Mother’s Day weekend with the mother and the following weekend with the father.
(c)If Father’s Day falls on a weekend when the children would otherwise be with the father the children shall spend the Father’s Day weekend with the father and the following weekend with the mother.
(d)During even numbered years for the second half of the first, second and third term holidays from 12 noon on the second Saturday until 12 noon on the third Saturday.
(e)During odd numbered years for the first half of the first, second and third term holidays from 12 noon on the first Saturday until 12 noon on the second Saturday;
(f)During the Christmas school holidays:
(i)For the first half in odd numbered years from midday on the first Saturday until midday on the third Saturday; and
(ii)For the second half in even numbered years from midday on the third Saturday until midday on the last Saturday.
(g)At such additional or alternate times as may be agreed between the parties.
To facilitate such time the parties will meet at (omitted), if the mother is living in (omitted) or another location which is halfway between the parties’ residences to facilitate changeover.
The children shall have telephone communication with the father at any time as reasonably requested by the parties or the children.
When the children are in the father’s care the mother shall have telephone communication with the children as agreed between the parties but failing agreement between 7.00pm and 7.30pm (in the state where the children are located) each evening. To facilitate such communication the mother will telephone the father’s mobile telephone and the father will ensure that the children’s telephone call to the other parent is private.
The parties shall keep each other informed of their residential address and telephone number and keep each other informed of any changes within 48 hours.
Each parent shall do all acts and sign all documents necessary to facilitate the other parent obtaining at their expense:
(a)from any medical practitioner or health professional treating the children from time to time such information as each parent may from time to time seek;
(b)from the principal of any school attended by the children copies of school reports, newsletters, class photographs and school awards.
Each parent shall promptly notify the other should the children or any of them be involved in an accident or medical emergency requiring attendance at hospital or be diagnosed with a serious medical condition.
Neither party shall denigrate the other/or members of their family or friends in the presence or hearing of the children and will not permit any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Monk & Malone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3323 of 2014
| MR MONK |
Applicant
And
| MS MALONE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case.
On paper as the trial opened the parties were in dispute about which of them their children X, 8, Y, 6, and Z, 3 ½ should primarily live with but they separated four years ago and neither felt the need to commence court proceedings until the mother, the children’s primary carer since separation, decided in late 2014 that she wished to relocate from (omitted) in rural New South Wales to (omitted) in Queensland.
The father lives in (omitted), 1 ½ hours from (omitted) and at present the children spend time with him each alternate weekend from Friday to Sunday during school terms and for half of the school holidays. If the mother relocates to (omitted) which is more than 8 hours from (omitted) then time during school terms will either not happen or will happen infrequently and at considerable expense.
The father’s proposal at trial was that the children should live with him and spend time with the mother on alternate weekends if she lived close enough to him for this to be practicable and otherwise during the school holidays.
Toward the end of the hearing he put forward an alternative proposal namely that once he obtained his (omitted) ticket which he expected to do shortly he would move to (omitted) which is about half an hour from (omitted) and the children would live in an equal time arrangement. As an (occupation omitted) the father would be on a 4 days on 4 days off roster and he proposed that the children live with him on his four days off.
This would only be feasible of course if the mother remained in (omitted) or moved to (omitted) and as part of this proposal the father sought an order that the mother be restrained from relocating the children’s residence more than 40 kilometres from (omitted).
When the father filed his initiating application in December 2014 his proposal was that the children live with him if the mother lived more than 150 kilometres from (omitted) but live with the mother if she lived within 150 kilometres of (omitted). At trial the only orders he sought were that the children live with him or live in an equal time arrangement but during final submissions his counsel asked me to take his original proposal into account if I was minded to permit the mother to relocate from (omitted) with the children.
The father proposed that in any of the above scenarios he have sole parental responsibility for the children.
The mother proposed that the children live with her in or near (omitted) and spend time with the father for the entire first and third term school holidays and half of the mid-year and Christmas school holidays. She said that she was not opposed to the father spending time with the children during term times in (omitted) or flying the children to (omitted) occasionally so that they can spend the weekend with him in (omitted).
The mother proposed that the parties have equal shared parental responsibility.
The evidence
The father relied on his affidavits filed on 11 March 2016 and 8 June 2016, the affidavit of his mother Ms D filed on 11 March 2016 and his Notice of Risk filed on 16 March 2016.
The mother relied on her affidavit filed on 14 March 2016.
A family report was prepared by Ms A, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined.
Background
The father grew up in (country omitted) but his mother is Australian and he immigrated to Australia in 1998 at the age of 20. His mother, sister and one of his brothers followed him to Australia soon after and his other brother also now lives in Australia.
The father’s maternal grandfather and step-grandmother live in (omitted) and upon coming to Australia he and his mother and siblings settled in the area of rural NSW which includes (omitted), (omitted), (omitted), (omitted), (omitted) and (omitted).
The mother grew up on the (omitted) but she attended the final years of high school in (omitted). She met the father in (omitted) in 1998 or 1999 when she was 18 or 19 and they formed a relationship and commenced living together in 2001.
In 2002 the father moved to Tasmania for work and the mother joined him there in early 2003. Her parents were living in Tasmania at this time and the parties bought a house in Tasmania.
The mother worked at (employer omitted) in Tasmania before enrolling in a degree in (course omitted) which she completed in 2006.
In 2007 the mother fell pregnant. X was born on (omitted) 2008 and subsequently Y was born on (omitted) 2010.
The mother was the children’s primary carer. The father continued to work full time and not only that he lived away from home during the week and was only home on weekends.
This caused considerable friction in the party’s relationship and in late 2010 it was agreed that they would return to live in the (omitted) area where the paternal family lived with a view to the mother being more supported in her parenting role.
In January 2011 the parties commenced living in (omitted) and they subsequently purchased a home there. The father obtained work in (omitted) and then in (omitted) which still involved him living away from home during the week but in November 2011 he obtained employment at (employer omitted) at (omitted) which is about an hour from (omitted).
The mother obtained part time work with (employer omitted) near (omitted).
In February 2012 the parties separated. The father said that the mother asked him to move out; the mother said that they separated by mutual agreement. I cannot make a finding about where the truth lies about this but whatever the cause of the separation it was followed by the father moving in with his mother who was then living in (omitted) and the mother remained in the former matrimonial home with X, then almost 4 and Y, 2.
By agreement between the parties the children spent each weekend with the father.
Shortly after the parties separated the mother discovered that she was pregnant and Z was born on (omitted) 2012. The father did not spend time with Z for the first six months after his birth but in about May 2013 he began spending time with him for a few hours each weekend.
In May 2013 the father began a relationship with Ms V and in November 2013 he informed the mother that he needed some personal time and some time to pursue his relationship and could only have the children every alternate weekend.
Shortly afterwards the father relocated to (omitted) which is about 1 ½ hours or 138 kilometres from (omitted). Z had only just turned one and had spent limited time with the father up to that point but the parties agreed that the three children would spend each alternate weekend from Friday to Sunday with the father in (omitted) with changeover at (omitted). The mother said during cross-examination and I accept that she did not consider this age appropriate for Z but the father said that he was not going to drive back and forth picking up different children at different times and she gave in and agreed to the arrangement.
(omitted) has a population of about 1600 and it is not a place with which the mother has any natural connection and after the father moved to (omitted) she began looking at other places where she could live. She considered Brisbane, (omitted) and (omitted) before deciding that (omitted) on the (omitted) was her preference.
The mother’s unchallenged evidence was that in mid-2014 she began to talk to the father about the possibility of moving away from (omitted) although at that time she did not have a place firmly in mind and on 24 October 2014 the parties met in a park to discuss relocation and the mother told the father she wanted to move to (omitted).
The father said that Queensland was too far away and that he did not agree with the mother taking the children there. I accept the mother’s evidence that he asked her if she had considered moving to the (omitted) and said that he did not want to prevent her moving from (omitted) but the move had to be “to somewhere reasonable.”
The father suggested that the parties attend mediation to discuss the issue further.
The father’s counsel did not concede that the father had ever agreed to the mother moving away from (omitted) with the children but the way the father’s application to the court was drafted in December 2014 suggests that at that time he was willing to agree to the mother relocating within limits. However there is no doubt that he made it very clear that he did not consent to her relocating to Queensland and notwithstanding this the mother resigned from her employment and on 23 November 2014 packed up the car and drove to (omitted) near (omitted) with the children.
The father did not find out about it until he went to the changeover location in (omitted) to pick the children up for the weekend and discovered that the mother was not there.
On 12 December 2014 the father filed an application in the Local Court at Tamworth seeking an order for equal shared parental responsibility and an order that the children live with him if the mother remained living more than 150 kilometres of (omitted) and with the mother if she lived within that 150 kilometres.
On 16 December 2014 interim orders were made by the Local Court providing for the parents to have equal shared parental responsibility and for the children to spend time with the father during the Christmas school holidays and the matter was transferred to the Federal Circuit Court.
I conducted an interim hearing on 27 January 2015 and ordered that the parties have equal shared parental responsibility and that conditional on the mother relocating to the children’s place of residence to (omitted) or a place within 150 kilometres of (omitted) the children live with the mother and spend time with the father on alternate weekends and during school holidays.
The mother returned to live in the former matrimonial home in (omitted) and X and Y were re-enrolled at (omitted) Primary School in (omitted) and the children resumed spending time with the father on alternate weekends from Friday to Sunday and half of the school holidays.
On a final basis the mother continued to seek orders that the children live with her in (omitted). A family report was ordered and the report writer recommended that the children live with the mother and that she be permitted to relocate to a place within 150 kilometres of (omitted). However the mother continued to press to be able to relocate to a place of her choosing and the matter was listed for trial in March 2016. It was not reached in March and the trial proceeded in July.
Not long prior to the March hearing date the father amended his application to seek sole parental responsibility and an order that the children live with him with no alternative order sought about the children living with the mother if she lived within 150 kilometres of him.
The father’s circumstances
The father is an (occupation omitted) at (employer omitted) at (omitted) and earns $160,000.00 per annum. His current work hours are from 6.00am or 6.30am to 4.30pm or 5.00pm on weekdays and he is required to leave home at about 5.00 or 5.30am to drive to the (employer omitted) and he gets home around 5.30pm. He is not required to work on weekends.
During the hearing the father said that he was about to sit for his (omitted) ticket and hoped to obtain this qualification shortly. He said that once he obtained this qualification he would move to a position which paid $190,000.00 per annum and would require him to work on a 4 on 4 off roster and that his 4 days on would consist of two 12 hour days and two 12 hour nights.
(omitted) is a relatively new (employer omitted) and it has an expected life of 30 years and the father has the prospect of being able to work there long term. He said that it had recently won a (omitted) of the Year award.
The father was asked during cross-examination whether he could obtain work in the (omitted) industry if he moved to south east Queensland but it was his view that he would not be able to do so and there was no evidence which contradicted this. The father also said that he could not work fly in fly out at (employer omitted) as his employer would not allow it.
The father could of course look for other employment but he enjoys this job and the income it brings him and I am satisfied that although he will be deeply unhappy if the mother relocates, there is no likelihood of him giving up his current employment and following the mother to south east Queensland.
The other attraction to the father of living in the area where he currently lives is that his family is there. His maternal grandparents live in (omitted), his sister Ms B and her husband and daughter live in (omitted) near (omitted) and his mother is a (occupation omitted) employed at (employer omitted) who currently lives in (omitted) and in the recent past has lived in (omitted), (omitted) and (omitted).
The father chose to reduce his time with the children in 2013 to allow him to pursue his relationship with Ms V and when the family report interviews were conducted the father and Ms V were living together in (omitted) and planning to marry. However they separated in December 2015 and the father is currently single.
The mother’s circumstances
The mother lives in the former matrimonial home in (omitted) with the children.
Consent property settlement orders were made in 2014 which provided for the home to be transferred to the mother if she was able to refinance the mortgage but she has not been able to do so and the home is on the market. Pursuant to the orders the mother is entitled to receive the proceeds of sale but there is almost no equity in the home.
After the parties moved to (omitted) in January 2011 the mother obtained part time employment with (employer omitted) but she resigned from her job in October 2014 and has not worked since then.
(omitted) has a population of about 1600 and the mother said that she had found it difficult to make friends and build a support network there and I have no reason to disbelieve this evidence.
The only paternal family members who remain in (omitted) are the family’s elderly grandparents (the children’s great-grandparents). The paternal grandmother moved to (omitted) in February 2015. One of the father’s brothers lived in (omitted) with his family for a period of time in 2015 and the mother had a good relationship with them but they have now moved away.
The nearest town to (omitted) is (omitted) which is 50 kilometres away and has a population of 11,000.00. (omitted) is 6.5 hours from Sydney and Brisbane.
The mother said that there were no after school care options in (omitted) between 2012 and 2014 which made it very difficult for her as a single working parent. In 2013-2014 she had to resort to asking other mother’s to care for X after school until she finished work. She was part of a committee established to get after school care up and running in (omitted) and it commenced in 2015 but by then the mother was not working.
The mother said that the school the children attended in (omitted) had 120 students and limited facilities compared to the school in which she enrolled the children in Queensland and she was not challenged about this evidence. There are also limited extra-curricular activities available in (omitted) although some options such as (hobby omitted) are available in (omitted). There is the possibility of the children playing some team sports in (omitted) but for that they need or at least it is preferable for them to be there every weekend.
The mother wishes to move to somewhere in the vicinity of (omitted), a coastal town in south East Queensland. She said that if she was permitted to return to (omitted) she would again seek housing in the (omitted) area and would re-enrol the children at (omitted) State School where they attended briefly in 2015. She said and I accept that the school has impressive technology resources.
The mother said that an advantage to her of living in (omitted) was that she could rent a new home which did not require upkeep whereas the home in (omitted) was old and needed maintenance and a lot of yard work. The mother enrolled all three children (including Z who was enrolled in (hobby omitted)) in (hobby omitted) classes in (omitted) and she outlined the opportunities for outdoor activities in (omitted) which were not available in (omitted).
The mother commenced studying (course omitted) when she was in (omitted) in late 2014/early 2015 with a view to obtaining work that she could do in school hours. She said that if she returned to this area she was interested in using her (omitted) degree as a foundation for enrolling in a (course omitted) which she could do at (omitted) University.
The father produced evidence at trial that (employer omitted) had advertised for an employee based at (omitted) near (omitted) and (omitted) for a person with the mother’s qualifications and experience. However the advertisement was for a full time employee.
The mother’s parents now live in (omitted). The mother has some relationship with the maternal grandmother who came to (omitted) briefly to assist her when she had surgery on her foot in 2014 but she does not have a close relationship with her family and she alleges that her father sexually abused her as a child. The mother said that they visited her in (omitted) one occasion in the last twelve months but only the maternal grandmother came into the house; the maternal grandfather stayed in the car.
The mother has not re-partnered.
The applicable law
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration but as was emphasised in the High Court decision of AMS & AIF[1] paramount consideration is not the same as sole consideration and the court is entitled to have regard to the legitimate interests and desires of the parents.
[1] AMS & AIF [1999] 199 CLR 160
In AMS & AFS Kirby J said as follows:
One of the objects of modern Family Law statutes is to enable the parties to a broken relationship to start a new life for themselves, to control their own future destinies and re-desire to form new relationships, free from unnecessary interference from a former spouse or partner or from a Court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness toward the former spouse or partner, which may be transmitted to the child or otherwise impose on the happiness of the custodial or resident’s parent in a way likely to affect the welfare or best interests of the child. That said the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes or interests of the parents.[2]
[2] AMS & AIF [supra] paragraph 145
Although it is common in relocation cases for a parent wishing to move to put forward a reason for their choice of location such as wishing to join a partner or take up a job or live near family, AMS & AIF makes it clear that a parent is not obliged to demonstrate a compelling reason for wishing to relocate and that the proposal they put forward must be considered on its merits using the touchstone of the children’s best interests. In Adamson & Adamson the Full Court said as follows:
It follows from the decisions of the High Court in AMS v AIF and U v U that in parenting proceedings there is no requirement for a parent to demonstrate compelling reasons to live where a parent proposes to live, be that a proposed new location or axiomatically in their current place of residence. Here, the mother was no more required to demonstrate compelling reasons for her choice to remain living in Town S than was the father to do so with respect to his choice to live in Town C or for either to not live anywhere else.
The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. These rights and the rights of freedom of mobility of a parent only defer to the paramount consideration of the child’s best interests where those interests would be so adversely affected as to justify such interference and then the interference is only legitimate to the extent that it is necessary to avoid such adverse effects. [3]
[3] Adamson & Adamson [2014] FamCAFC 232
The children’s best interests
The children’s best interests remain the paramount consideration and to determine their best interests I must have regard to the matters in s. 60CC (2) & (3) of the Family Law Act.
The primary considerations in s.60CC(2) are:
(a)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
(b)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
S.60CC(2A) provides that in applying the considerations set out in subsection (2) the court is to give greater weight to the consideration set out in paragraph (2)(b).
X, Y and Z will undoubtedly benefit from having a meaningful relationship with both of their parents. The parents are both capable adults. They have their failings as all adults do but they each offer something different but important to their children. Their children value them and they value their children.
A meaningful relationship has been defined as one which is significant, valuable and important to the children.[4] If the children live with the mother in their current location they will continue to spend sufficient time with the father to ensure that they have a meaningful relationship with him but there is nothing to suggest that if they live with the mother at a distance from the father that will not also be the case. Their relationship with him will be different and his involvement in their lives will be different and that is a relevant matter which I will have to consider in more detail later in the judgment but in qualitative terms the children’s relationship with the father will continue to be significant important and valuable to them.
[4] Mazorski & Albright [2007] 37FamLR 518
There was no evidence that the mother was likely to seek to undermine the relationship and use distance and the reduction in time to her advantage. There was not a shred of evidence of her denigrating the father to the children and she has facilitated him having time with them since separation, indeed it is the father who has in the past chosen to spend less with the children than he could have. There was nothing to suggest that the mother had picked (omitted) as her preferred location in order to put a distance between the children and the father and weaken their relationship with him.
It is true that the mother unilaterally relocated with the children in November 2014 but in the circumstances of this case I do not accept that this one off event justifies a conclusion that the mother might not comply with court orders or might seek to undermine the children’s relationship with the father if she relocated.
Sometimes distance can create problems because people cannot afford travel and there is a risk in this case that time will be missed because of this but the father is earning a very good income and he is capable of ensuring if he chooses that no time with the children is missed for financial reasons.
I have some concerns about what might happen to the children’s relationship with the mother if they live primarily with the father.
The father was highly critical of the mother in his affidavit for a whole range of things, some quite trivial. It was clear from his affidavit that notwithstanding that he was content to leave the children with her for three years after separation he has a very poor opinion of her as a mother and housekeeper and he places weight on negative things the children say about her without pausing to reflect on whether those things might be capable of other interpretations or might be said to please him.
On the father’s proposal if the children live with him the paternal grandmother will have a significant role in their care and the paternal grandmother is also very critical of the mother.
It would be highly regrettable if an idea was inculcated into the children’s minds that the mother was an inferior mother with strange ideas who was a poor financial provider because she was not trying hard enough. This could undermine the children’s relationship with her and I do consider that there is a risk of this occurring if the children live primarily with the father.
There was nothing to suggest that the children were likely to suffer physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence in the care of either parent.
Some of the father’s complaints about the mother raise the spectre of neglect but in my view these complaints are better dealt with as parenting capacity issues.
The father alleged that in 2013 the mother made two separate threats to harm the children. I will deal with this in the family violence section of the judgement but for reasons to be given I do not consider that these threats even taken at their highest establish that the children were then or are likely in the future to be at any risk of harm in the mother’s care.
S.60CC(3) contains the additional considerations and the first of these is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's view.
I accept the father’s evidence that the children say that they miss him or do not want to leave him at changeovers but this is not evidence that they have a particular view about parenting arrangements or prefer him to the mother.
The family report writer, who is a professional person who does not bring her own emotions to bear in the proceedings and can be relied on to provide objective evidence, said as follows in her report:
X indicated that she would like to live with the mother and have time with the father. Y and Z because of their age and developmental level were not asked.[5]
[5][5] Family Report paragraph 102
The father submitted that X’s views should not be given any significant weight because they might have been influenced by events which occurred immediately prior to and at the interviews and might be different now that the father had ended his relationship with Ms V to whom none of the children warmed.
I do not accept this submission. X has lived all her life with her mother and the family report writer observed her to have a good relationship with her. This makes it probable that the views she expressed to the family report writer were genuinely held and not unduly influenced by extraneous events. However X is young and her views are only one thing I have to consider and they do not determine the matter.
I must consider the nature of the relationship of the children with each of their parents and any other persons (including any grandparent or other relative of the children).
The mother has always been the children’s primary carer and is their primary attachment figure but X and Y (and to an extent Z) also have an attachment to their father.
The family report writer said that:
[X] appeared to have a strong attachment to the mother and an attachment to the father. X indicated she had a somewhat ambiguous relationship with the father’s partner although when she engaged with the father’s partner she appeared to be pleased to spend time with her. [6]
[6] Family Report paragraph 101
The family consultant said as follows about Y:
Y 5 appeared to be meeting his physical developmental milestones but appeared to have a poor concentration and became easily irritated. He was demanding in the presence of the mother and more settled in the presence of the father. He did not encourage or engage well with his siblings and at times attempted to dominate them.[7]
[7] Family Report paragraph 103
The family consultant said as follows about Z:
Z 2 appeared to have a close attachment to the mother and a somewhat ambivalent relationship with the father and he did not engage with the father’s partner.[8]
[8] Family Report paragraph 104.
In another section of the report she said as follows:
It was noted at the interview that Z did not engage well with the father. The father reported in a follow up email to the consultant that Z had engaged with the father and his partner well during the school holidays.[9]
[9] Family Report paragraph 91
The mother did not suggest that there were any major difficulties in Z’s relationship with the father and said that there was an occasion in January 2016 when Z asked to ring the father. However Z has never lived with the father as part of an intact family and there can be no doubt that his strongest bond is with his mother.
It was apparent at the family report interviews that the children did not have a close or warm relationship with the father’s fiancée Ms V. However that relationship has now ended.
I must consider the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children.
The father has not taken every opportunity to spend time with the children since separation. In November 2013 he told the mother that he could not continue to spend each weekend with the children because he wished to have some “personal time” and time to pursue his new relationship.
During the hearing the father came up with the proposal that he would move to (omitted) once he obtained his (omitted) ticket and he proposed that an equal time arrangement then commence which would involve the children being in his care on all of his days off. However he previously withdrew from such an arrangement because he wanted some personal time and I have some concern about what might happen in the future if the father, who is currently single, again found himself in the position of wanting to pursue a new relationship on some of his days off unfettered by child care responsibilities.
I must consider the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
The father is assessed to pay child support on an income of $130,000.00 per annum. He in fact earns $160,000.00 per annum but he has not lodged his tax returns for the last two years and at present is assessed on the lower income.
During cross-examination the father suggested that $160,000.00 was not an ongoing income but in his affidavit he simply said: “I earn approximately $160,000.00 per annum.”[10]
[10] Father’s affidavit filed on 11 March 2016 paragraph 156
The current assessment requires the father to pay $475.00 per week and he also pays the children’s fees at (omitted) School in the amount of $278.00 per quarter.
The evidence suggests that the father is somewhat bitter about being required to pay child support. On 20 October 2014 the mother reminded him by text message that his previous two payments had been $90.00 short and she ended by saying “I’ve had the kids two weeks in a row.” The following day the father sent the mother a text message saying:
Get a job and raise our own kids.[11]
[11] Mother’s affidavit paragraph 29
The mother said that there had been other occasions when the father had not paid the correct amount of child support and when she followed it up the father called her names such as “fat cow” or “lazy” or told her to “get a job.”
During an exchange about child support on 3 February 2015 the father said:
Get off your fat ugly arse and get a job and earn your own money.
I have no issues supporting my children but will not pay for you to sit around bludging off me!
They are just cash cows to you, get off your cellulite fat ugly arse and work for your money.[12]
[12] The complete version of this conversation is contained in paragraph 205 of the mother’s affidavit.
My concern about these exchanges is not just the abusive language but that it suggests a fundamental inability by the father to appreciate the difficulties a single parent faces if required to work, care for their children and care for their home. The father has to this point in his life faced none of those difficulties. He has always been able to work when and where he chose without being required to make any child care arrangements; he has prioritised his work and his personal life and fitted the children in around these other aspects of his life.
The father alleged that on one occasion the abuse did not emanate from him but from his partner who used his phone to send an offensive message to the mother after she complained about payment of child support. I have reservations about whether this is true but even if it is the views the partner expressed were clearly consistent with the father’s own views.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
There were a number of changes inherent in the parties’ proposals.
The first is a change of the children’s primary residence from the mother to the father inherent in the father’s proposal that the children live with him.
The father’s proposal for primary residence is curious because he does not intend to take a substantially greater role in the children’s care if this order is made than he does at present. He does not propose cutting back his working hours or changing his job so that he was more available to the children. What he proposes in effect is that rather than the mother caring for the children during the day including before and after school, members of his family or an au pair would do so. The father will of course be there for a few hours with them on weekday evenings which is not currently the case.
This would be a dramatic change for the children and it is deeply troubling that in cross-examination the father refused to concede that the children might have difficulty adapting to such a significant change in their circumstances or might struggle to make sense of why it had happened. The paternal grandmother similarly brushed this off as being of no moment.
Children can adapt to change and sometimes change cannot be avoided but it would be a dramatic change for the children who have a close and loving relationship with their mother. The mother has been Z’s primary carer for his entire life and Z is only just three and the fact that the father demonstrated no empathy for the children suggests that he is not well placed to help them adapt to a change of residence. I do not share the family report writer’s view that the father shows empathy for the children; the evidence before me suggested the reverse.
The alternative change the father proposed was to equal time in line with his new shift roster. This would mean that the children would still be in the mother’s care for four days out of eight. It would be a less dramatic change for the children and provided that the parents had the capacity to co-operatively parent the children and the mother was content to live in (omitted) or move to (omitted) it is a change the children might more easily adapt to.
This change however could be extremely detrimental for the children if the mother was resentful about being forced to remain in or near (omitted) and did not cope and the mother has had some mental health issues in the past, or if the children had to move frequently between two parents with very different parenting styles and deal with the father’s constant disapproval of and criticism of the mother.
The final change is that proposed by the mother that she and the children live in or near (omitted).
In this scenario the children would still be cared for by the mother on most days as they are used to. However they would see their father much less frequently and they may not see him or see members of the paternal family at all on school term weekends.
The children are not used to the father attending their extra-curricular activities during the week or going to school events during the week very often or to seeing him at any other time during the week but they might well miss seeing him regularly on weekends. The father gave details in paragraphs 210 and 211 of his affidavit of the activities he and the children did on weekends and during school holidays.
However if the mother is happier in (omitted) this could have positive flow on effects for the children in terms of the mother’s parenting capacity of which the father is so highly critical.
It was effectively the father’s case that the mother was doing a very poor job of parenting the children at the moment and that she would continue to do a poor job and might even do a poorer job if she moved to (omitted) where she had no connections with anyone.
I will need to assess this further once I make findings about the mother’s parenting capacity.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
If the children live in (omitted) or in in any other location within 150 kilometres of (omitted) they can see their father each alternate weekend as well as during the school holidays without undue expense and with a manageable amount of travel.
If the children move 700 kilometres away they will either have to fly from Brisbane to (omitted) or the parents will have to drive and meet halfway. If the parents drive it will require the children travelling for 8.5 hours which is not ideal but if done occasionally the children should cope even if they do not enjoy it.
Each option is viable for changeover for school holidays but weekend time in (omitted) would not be viable except perhaps occasionally if the children travelled by air.
Weekend time or time during the father’s four days off once his roster changes could occur if the father flew from (omitted) to Brisbane and then drove to (omitted). He would have to pay for flights and for accommodation but he is a relatively high income earner.
There is always a risk if a party moves away that problems with finances will interfere with the children spending time with a parent and it has to be acknowledged that such problems could arise in this case.
On several occasions after the father moved to (omitted) the mother asked him to collect the children from (omitted) because she had financial difficulties and could afford not get them to (omitted). Her financial circumstances may not greatly improve if they improve at all if she moves to (omitted) and there is always a risk that she might have difficulty meeting travel costs.
The father earns $160,000.00 per annum and will soon to be earning $190,000.00 per annum so in theory he could help out if the mother ran into financial problems but there are many examples in the evidence of the father refusing to do extra driving or refusing to pay anything in excess of his child support assessment.
There is therefore a risk in this case that even if the father had the capacity to help if the mother was unable to meet particular costs that he would not agree to do so and this could result in him missing time with the children if they lived a considerable distance away from him.
I must consider the capacity of each of the children's parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including their emotional and intellectual needs.
The father does not have any criminal convictions and he does not have any mental health issues and he does not use illicit drugs and is not violent.
The mother said that she was concerned about his alcohol consumption. The father was asked about this in cross-examination and said that he drank 8 to 10 beers on a weekend on occasions but denied that he drank at a level which comprised his capacity to care for the children and it is not open to me on the evidence to find that the father has a problem with alcohol.
The father’s availability to care for the children if they lived with him full time is an issue. He works 5 days a week from 6.00 or 6.30am to 4.30 or 5.00pm. With travelling time he needs to leave home prior to around 5.30am and he gets home no earlier than about 5.15pm.
On his current roster the father would be unavailable to get the children up in the morning or collect X and Y from school in the afternoon during the week if the children lived with him.
The father said that his mother and sister would help him as required in the mornings and afternoons.
The paternal grandmother lives in (omitted) an hour from (omitted) and the maternal aunt has a very young child. The father did not flesh out exactly how each of them would be able to help him if he had to leave home before 6.00am and did not get home until after 5.00pm. He said that he intended to utilise day care for Z and after school hour’s care for X and Y if required.
During cross-examination the father said that he had also considered getting an au pair.
The father displayed an almost stunning lack of empathy for the children in that he was unable to reflect at all on how such a dramatic change to their lives would impact on them. He refused to concede that such a change might be difficult for Z who has always lived with his mother. The paternal grandmother similarly refused to concede that the children might have any difficulty with the transition. There was a strong flavour in the father’s evidence of him being unwilling to reflect on this because he was bent on obtaining the outcome he preferred regardless of the children’s best interests.
With the help of his family the father could provide for the children’s day to day needs and their educational needs if they lived primarily with him but I have considerable concern about his capacity to provide for their emotional needs.
The father made numerous complaints in his trial affidavit about the mother’s capacity to care for the children.
The father was content to leave X and Y in the primary care of the mother during the week when he worked away in Hobart between 2008 and 2010 and he made no complaint about her care of the children then. He was content to leave them with her when he cut back his time with them from each weekend to each alternate weekend in November 2013. He was content to leave them in her primary care when he moved 138k’s away to (omitted) and he was content to leave them in her primary care when he filed his application in December 2014 provided that she lived within 150 kilometres of him, yet in July 2016 he attempted to convince the court that there were such serious issues with her parenting capacity that the only option the court should consider was changing the children’s residence.
The father alleged that the children were dishelleved and dirty and dressed in inappropriate and soiled clothing at changeover, that the mother’s car was dirty and full of rubbish, that the mother did not cut the children’s fingernails, that her house was unacceptably messy and dirty and that there was not always food in the fridge and that X had a dreadlock in her hair in December 2015 which he had to cut out. He also alleged that X was becoming parentified by being required to look after her younger brothers.
The father took a photograph of X’s fingernails on one occasion and annexed those to his affidavit but to substantiate most of his complaints he mainly relied on things X had said to him and he asked the court to accept that his interpretation of X’s comments was correct and the only one open.
It is always difficult to be sure that comments by children have been correctly interpreted when they are just reported without context. During submissions I gave the example of a child saying there was nothing to eat when the cupboard and fridge were full of food but just not food the child preferred.
In my view there is a very high risk that the father is misinterpreting and investing with too much significance things X has said about looking after her brothers.
The father is also naïve if he believes (and he said during cross-examination that he did believe this) that his children are unaware of the tensions and conflict between their parents and there is always a risk in these situations that children will say things to a parent which they know will find favour with the parent and keep the parent happy with the child or keep the child out of trouble.
As I mentioned during submissions, Y saying to the mother that he would rather stay with her but goes to Dad’s so that he can play the Ipad is more than likely a classic example of this.
Some of the father’s complaints were petty. He complained for example that on one occasion he observed that the foam padding had been removed from Z’s car seat. He said that he asked X about it and she said that Z had been sick on it so his mother took it off (presumably to wash it). He did not suggest that it was missing other than at changeover on one particular weekend.
The father’s complaints about the state of the mother’s home rely almost entirely on things X is reported to have said to him and I cannot place weight on this information.
I do not accept that there are any serious issues with the mother’s day to day care of the children.
The father was highly critical of the mother over a Facebook post in which she described healing her house. He said that she:
…described seeing images of people being murdered in the children’s home and requiring angels and old ancestors and owners of the house to clear up the images and that such beliefs were being conveyed to the children increasing their anxiety.[13]
[13] Father’s affidavit paragraph
The mother did engage in a ritual to cleanse her house which she described on Facebook but while this is New Age thinking which many people would not relate to, I do not accept that it illustrates that the mother has mental health issues which affect her capacity to care for the children.
The father was highly critical of the mother for her alleged lack of capacity to manage money indeed in the Notice of Risk he filed on 16 March 2016 he alleged that her inability to budget despite receiving full child support and Centrelink assistance was something which put the children at risk.
The mother explained during cross-examination that she had been under great financial stress when she first returned to (omitted) as she had taken out a 12 month lease on a home in (omitted) and had to continue to pay rent on the house until a new tenant was found as well as servicing the mortgage on the (omitted) property.
The father complained that the children were missing too much school and were missing out on learning opportunities and he expressed concern in his affidavit about comments in Y’s 2015 report about his behaviour.
The school reports which were produced did not substantiate an unacceptable problem with attendance and it is clear from the reports that X is doing very well at school. Y has had some issues with his behaviour but the evidence was that the mother (and only the mother) dealt appropriately with these issues in consultation with the school.
I do not accept that the fact that the mother has not taken the children to the pool recently or continued X’s (hobby omitted) lessons since returning from (omitted) is evidence of neglect or slipshod parenting by the mother and the pettiness of the father’s complaints is illustrated by the fact that he devoted a paragraph of his affidavit to criticising the mother for saying in the presence of the children that she could not care less about Star Wars.
The father’s complaints about the mother do not give rise in my mind to a concern about the mother’s capacity to care for the children on a day to day basis but they do give rise in my mind to a concern about the father’s capacity to provide for the emotional needs of the children.
The family report writer said as follows:
The father and his partner would provide the children with structure and boundaries which they are appear to be lacking at this time but it is important to consider if they could provide them with the unconditional affection provided by the mother, despite her difficulties.
This observation strikes a chord with me. The father showed a striking lack of empathy for the children in his evidence at the hearing and I have considerable reservations about whether he could provide them with the unconditional affection provided by the mother.
The mother has had some mental health issues in the past in the form it would appear of feeling stressed and suffering from depression and the family report writer said as follows in her report:
The mother who has been the significant primary carer is overwhelmed by a situation where she is caring for three small children, has significant financial constraints, is unsettled with residency and lacks unconditional family and community support. Despite this the mother has cared for the children under isolated and somewhat difficult circumstances since the birth of X.
The mother reported a history of sexual abuse when she was a child and was further betrayed by the maternal grandmother who did not accept that this had happened. This has further contributed to the mother’s feeling of isolation. The literature relating to this form of abuse consistently reports that this can create long term mental health issues and a reluctance to engage with services that could assist the victim. Whilst the mother has engaged with practical services there is no evidence that she has engaged with a counsellor who could assist her not only with her emotional issues but provide practical support to assist her to move forward. The mother needs to engage with a support service such as Centacare in (omitted) who could assist her with her emotional issues and with budgeting. Medicare Local in (omitted) would be another option although its availability is currently subject to government funding.[14]
[14] Family Report paragraph 107, 108
Unfortunately the family report writer was not provided at the time of writing her report with subpoena material which confirmed that the mother had engaged in counselling in the past. The mother gave evidence in her affidavit of having accessed counselling support in Tasmania in 2004 to talk about the sexual assault allegations and she had further counselling in Tasmania between 2006 and 2008. She was assisted by her counsellor to make a report to the police.
The mother had 6 sessions of counselling when she was pregnant with Z and just after his birth.
Between March 2014 and September 2014 the mother saw Ms N, a counsellor at (omitted) Psychology in (omitted). She sought this counselling because of workplace issues but during this counselling she discussed her plans to relocate from (omitted) and the counselling records were tendered during the hearing.
The mother was prescribed anti-depressants in mid-2014 and ceased taking them in August 2015. It is not open to me on the evidence to find that the mother was reckless with her mental health in deciding to cease taking the anti-depressants.
The mother does not have mental health issues of such magnitude that they impact on her capacity to care for the children but the fact that she has sought counselling assistance regularly over the years and that she is manifestly unhappy living in (omitted) suggests that there might be some impact on her parenting capacity if she is forced to remain there against her wishes or alternatively told that her only options were to move to (omitted) or some location within 150 kilometres of (omitted) with which she feels no connection.
The mother is in my view managing the parenting of the children appropriately. She would like more assistance from the father and she expresses resentment at times about his failure to provide it but it does not follow from this that the mother would be unable to cope with parenting the children in (omitted). She is parenting them satisfactorily enough now and the fact that she would have them on additional weekends if she moved to (omitted) does not in my mind raise a concern that she would fall into crisis in terms of caring for them.
It was a plank of the father’s case that the numerous problems with the mother’s parenting capacity meant that it was preferable that the children remained living near him so that he could keep a close eye on them or as his counsel put it check up on what was happening for them.
I do not accept this because I do not accept that the father’s complaints about the mother’s parenting have merit.
I do accept that the mother feels considerable resentment about the father being able to control where she lives while at the same time taking a strictly limited role in parenting the children but keeping her close to the father is not going to ameliorate that, it will only exacerbate it and that will not improve the children’s situation.
I must consider the maturity sex lifestyle and background of the children and any other characteristics of the children that the court considers are relevant.
X is 8 and is doing well at school. Nothing stands out about X which requires comment under this heading.
Y is 6 and is Year 1. He had some problems in Kindergarten with paying attention and interacting with others and he was referred for an assessment by an Occupational Therapist in August 2015 to assess his fine motor/gross skills and hyperactive behaviours. The Occupational Therapist made some suggestions which Y’s teacher adopted.
The father was highly critical of the mother over the fact that Y had issues at school but it is noteworthy that the parent who received information from the school about Y’s difficulties, who followed up the school’s recommendation about Y having an assessment with an occupational therapist and who attached a copy of the report to her affidavit was the mother.
Z is 3 approaching 4 years old. He is not attending any day care in (omitted) but the mother takes him to a (omitted) group one day a week.
The father complained that Z was not counting or saying his ABC’s and not recognising colours which X and Y could do at a similar age. He opined that this was due to Z not receiving the same nurturing and attention to assist with his learning and development as the older children had.
The purpose of this evidence was to disparage the mother as a parent and the father clearly did not think it through before he gave it.
The parents separated in February 2012 when X was almost 4 and Y just over 2. The father had worked away during the week for most of the children’s lives and was only home on weekends and he did not give any evidence of engaging in educational activities with them weekends. The same was the case after separation; the children lived with the mother during the week and spent time with the father on weekends and the father gave no evidence about doing educational activities with them on these weekends. The mother was the parent who had the major input into X and Y gaining skills. There was no evidence that she had parented Z differently and if Z is learning at a different rate it might well be because he is a different child.
It is also noteworthy that while the father was quick to criticise the mother for Z’s non-acquisition of certain skills he did not suggest that he spent any time on his weekends or during the school holidays endeavouring to rectify this.
The mother said that Z had “clicky” hips and knees and that it had been recommended that he have specialist orthotics. The mother said that she could not afford the $1,100.00 cost of this. When she approached the father for help he declined to contribute saying that he paid child support. The father did not challenge this evidence. For Z’s sake I hope that the parents sort this out.
I must consider the attitude of the parents to the children and the responsibilities of parenthood.
The mother can be roundly criticised for her decision to unilaterally relocate. Perhaps she hoped that given the father’s own actions and the fact that he did not blanket oppose relocation he would do nothing but she was wrong and her decision caused disruption for the children and a break in their time with their father and has done nothing for her relationship with the father. However she does not demonstrate a poor attitude to the duties and responsibilities of parenthood in wishing to relocate.
It suits the father to stay where he is. He has secure highly paid employment nearby and his family live in the (omitted)/ (omitted)/(omitted) area. The father did not enjoy living in (omitted) and he exercised his right of freedom of movement to move to (omitted) but he is content to live in (omitted).
The mother in contrast has no family in the area and does not feel at home there and now that the relationship has ended she does not wish to remain there. She wishes to move to a place which is a considerable distance from the father but this does not of itself display a poor attitude to the children or the responsibilities of parenthood.
I must consider any family violence involving the children or a member of the children’s family.
There were no allegations that there had been family violence between the mother and father but the father made some allegations about the mother’s behaviour to the children.
The father said that in mid-2013 X told him that the mother had threatened to bash the children’s heads up against the wall if they did not go to sleep. He reported this to the Department of Family & Community Services (DoFACS). Nothing came of it and the father did nothing about parenting arrangements and indeed some months later he chose to leave (omitted) and move 138kms away. I do not accept, whatever the truth might be about what was said, that on the totality of the evidence this raises a concern that the mother might harm the children.
The ease with which words can be twisted to cause alarm is illustrated by the evidence the father gave concerning the mother’s alleged threat to shoot the children.
In his affidavit the father said that as follows about an incident in October 2013:
I received a text on my phone from Ms Malone which was deeply concerning where Ms Malone said that she would shoot the children.
This is not an accurate account of what happened. The full text message appears at Annexure F to the father’s affidavit and in it the mother complains about the father and goes on to say:
So when I go mad and shoot everyone I will blame you cause you never took care of your own children when they were babies. You always leave that to me arsehole.
I do not accept that this indicates some homicidal intent by the mother; it is if anything a cry for help or a colourful expression of resentment.
The father notified DoFACS and the Police about the message but nothing came of it and the father did not seek to change arrangements for the children’s parenting after the message was sent and he relocated 138 kilometres a month later.
I do not accept that the mother has committed acts of family violence against the children.
The have never been any family violence orders.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
It is possible to speculate that any orders I make in this matter could lead to further proceedings whether for contravention or further parenting orders.
I must consider any other relevant matter.
First, the parties entered into consent orders in May 2014 settling property matters. It was agreed that the house in (omitted) would be transferred to the mother provided that she refinanced the mortgage. She was unable to do so and the property is now for sale. On the father’s estimate it is worth $300,000.00 and there is $282,000.00 owing on the mortgage. With selling costs it seems unlikely that the mother will get anything from the sale.
Second, I have concerns about the father’s attitude to the mother and his lack of empathy for her.
During the parties relationship the father worked very hard and provided well financially for his family but it is also clear on the evidence that the father valued his work highly and this continues to be the case.
The father loves his children and he wants to spend time with them but he wants to spend time with them on terms which do not interfere with his work. He has never been willing to make sacrifices for them. Until March 2016, three years after separation, it was his case that the mother should remain near to him no matter how unpalatable that might be for her and no matter how little connection she had with the area in which he wished to live so that he could continue to see his children without making any changes in his own life, having made the changes he wanted in 2013 so he could pursue his relationship.
It was part of the father’s case that the mother should not be permitted to move to (omitted) because she had no support there but the mother does not have any support she can rely on in (omitted) and there was nothing to suggest that if she moved to a place within 150 kilometres of the father that he or his family would be any more willing to provide her with unconditional support.
The mother gave evidence about an occasion in early 2014 when she accidently trod on a sewing needle which dug deep into her heel and became lodged. She was looking after the children and also working part time and she initially avoided going to the doctor but when she eventually went to the doctor he informed her that she needed surgery.
The surgery was booked for 14 March 2014 and the mother asked the father if the children could stay the night with him because she would be required to have a general anaesthetic. The father responded that the children could not come to his house as he was working. The mother rang the maternal grandmother in (omitted) who agreed to come up and mind the children while the anaesthetic wore off.
When asked during cross-examination why he had not helped the mother when she asked him for help when she needed surgery on her foot he said:
I did feel I was getting taken advantage of both financially and with other things I needed to do for her.
The father has rigidly insisted that the children come to him on Friday each weekend. The mother gave evidence of making a number of requests to him to pick one of the children up at a different time (so that Y could attend a birthday party or X do extra (hobby omitted) classes in preparation for an examination) but the father was never willing to do extra driving.
The father’s has an extremely poor attitude to the mother which is not justified by anything the mother has done.
He is highly critical of her for giving up her job with (employer omitted) and has been highly critical of her in the past for not earning sufficient income. He is highly critical of her housekeeping and about the children allegedly being dirty and dishevelled yet he left the mother in (omitted) to care for the children 12 days out of 14 so that he could live in the place of his choosing and pursue a relationship. He is apparently incapable of reflecting on how difficult it must have been for the mother to care for the children full time and also pursue employment.
Parental Responsibility
The parents are not the best communicators but they have been able to reach agreement in the past about numerous matters to do with the children and they will both continue to be a significant part of the children’s lives. The presumption in s.61DA of the Family Law Act is not rebutted and this case has none of the hallmarks of high level parental conflict or fundamental disagreement about religion or medical treatment or a strong power imbalance which suggests that one parent should have sole parental responsibility for the children.
I am bemused by the fact that the father even sought an order for sole parental responsibility and he failed to/was unable to articulate in his material why he had done so.
It is also noteworthy that when it was pointed out to the father in cross-examination that if an order was made for the children to live with the mother an order that he have sole parental responsibility would be problematic and he was asked what he proposed in that case he said that he proposed an order for equal shared parental responsibility and that he was sure that he could make it work.
I intend to make an order that the parents have equal shared parental responsibility for the children.
The recommendations in the family report
When the family report was prepared the mother’s proposal was that she be able to live in (omitted) with the children and the father’s proposal (although he told the family report writer that he thought the children would be better living with him and his partner) was that the children should live with the mother as long as she lived within 150 kilometres of (omitted) and continue to spend alternate weekends from Friday to Sunday and half of the school holidays with him.
The way the family report is written suggests that the mother was at that time willing to consider living within 150 kilometres of the father but I am satisfied that this has never been the case and that family consulted explored with the mother the possibility of the mother living in (omitted) or (omitted) because the father raised the issue of a 150 kilometre limit in his initiating application.
The family report writer supported the children remaining in the mother’s primary care and said as follows in her report;
The mother has been the primary carer for the children since birth and the children have a strong attachment to her and ideally living with the mother would be in their best interests. Removal from the primary carer can be stressful for young children unless their safety is significantly compromised.
However, the mother needs to demonstrate that she will access supports and establish stable residency sooner rather than later. The mother could remain in (omitted) but she does not have an unconditional support network there and could be better placed in (omitted), (omitted) or (omitted). The children require stability with educational, social and recreational needs as well as residency consistency and the mother needs to consider this. The mother demonstrated empathy for the children.[15]
[15] Family Report paragraphs 110, 111
The family report writer said that she found it difficult to make recommendations but she did eventually make some which included the following:
The children live with the mother and have regular time with the father during school holidays and every second weekend. It important that the mother makes a decision about long term residency so the children are in a stable environment either in (omitted) or within 150 kilometres from (omitted).
The children’s residency with the mother is dependent on the mother establishing where she wants residency long term, having mental health and or sexual assault counselling, budgeting support and engaging with a support network.[16]
[16] Family Report paragraphs 124, 125
During cross-examination the family report writer made it clear that she did not support relocation to (omitted) and did not support a reduction in the children’s time with the father but continued to support the children living with the mother. She also continued to support the mother being able to leave (omitted) provided that she lived sufficiently close to the father to facilitate alternate weekend time.
The family report writer was told of the father’s proposal for equal time before cross-examination commenced and during cross-examination she said that in her view the parents did not have the kind of relationship which would enable them to successfully implement an equal time arrangement.
A limitation of the Family Report was that the report writer did not have access to the mother’s counselling records.[17] She was therefore unaware of discussions the mother had with her counsellor about a proposed relocation to Queensland and may have been misled by the mother’s unilateral relocation in November 2014 into believing that the move was impulsive and did not have planning skills.
[17] Introduction and paragraph 58 of the report
The family report writer had the opportunity of talking to the parties at length and forming views about them and about their attitudes and she provided valuable evidence about the children’s interaction with their parents but the father’s position about the outcome he wanted had shifted considerably (and hardened) by the time of trial. His only proposal when the trial began was for residence and he was seeking sole parental responsibility. A competing residence application was not the focus of the report and as a result the report is not as useful in this case as family reports often are. Another complication of course is the father’s last minute introduction of an equal time proposal.
Conclusion
S. 65DAA (1) of the Family Law Act provides that if the court makes an order for equal shared parental responsibility it must consider whether it is in the children’s best interests and reasonably practicable to spend equal time with each of their parents and if it is to consider making an order of that kind.
The father belatedly sought an order for equal time and given the imperative in s. 65DAA (1) I will consider it first.
The parents are very different people but they each have a lot to offer the children and an equal time arrangement would ensure that the children spent maximum time with each of them. Each parent is capable of providing for the children’s day to day needs albeit the father would need considerable assistance from others.
Equal time would be a significant change for the children in terms of their day to day living arrangements and if the equal time proposed were week about it might be seriously open to question whether Z would cope with such a separation from his mother, but the father proposed a four day about arrangement which might make the separation from his mother easier for Z. The father would not be working on the days the children were in his care and could pick them up and drop them off from school and care for Z.
The children might adapt to that arrangement all other things being equal and it would allow the father to do some things with them which he does not do now such as take them to extra-curricular activities during the week and attend events at their school.
This arrangement would therefore tick some of the “best interests” boxes but it does not tick some others. The parents have very different parenting styles and the father is highly critical of the mother’s parenting style. The family report writer did not consider that the parents had a sufficiently good relationship to enable them to share the care of the children equally and in any event I must consider not only the children’s best interests but whether the arrangement is reasonably practicable. As the High Court said in MRR & GR:
Section 65DAA of the Family Law Act is expressed in imperative terms. It obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent and the question of whether it is reasonable practicable that the child spend equal time with each of them. It is only when both questions are answered in the affirmative that consideration may be given under paragraph (c) to the making of the order.[18]
[18] MRR & GRR (2010) 42 Fam LR 531
The High Court went on to say:
Section 65DAA (1) is concerned with the reality of the situation of the parents and the children, not whether it is desirable that there be equal time.
S.65DAA (5) sets out the matters to which I must have regard in order to determine reasonable practicability and the first is the distance the parties live apart.
The arrangement the father proposes would be impractical because of distance if the father continued to live in (omitted). The children and one of the parents would be required to do significant travel to and from school for half of the time.
The father said that he would make it practicable by moving to (omitted) once he commenced his 4 on 4 off roster and certainly then the parents would live sufficiently close to each other to remove the problems of the children getting to and from school. However it would also mean the mother would be forced to either remain in (omitted) or move to (omitted) where she has never contemplated moving. She would inevitably feel deeply resentful that not only was she required to continue to live in an area where she did not want to live and where she felt stressed and unsupported and which she felt offered limited educational and extra-curricular opportunities for the children but that she was required to organise her life around the father’s roster.
The mother has had some mental health issues and has had counselling and I would have to be seriously concerned about the impact on the children of an equal time arrangement which could only work under these circumstances.
Another reason I would be very concerned about making this order is that in 2013 the father decided that he did not want to spend each weekend with the children as had been happening but wanted some weekends free so that he could pursue a relationship. He is currently single and I cannot rule out the father again deciding that he wants some child free time on his days off.
It would neither be in the children’s best interests or reasonably practicable to make an order for equal time.
I then have to consider as required by s.65DAA (2) whether it would be in the children’s best interests and reasonably practicable to make an order that the children spend substantial and significant time with each of their parents.
Neither counsel addressed me during submissions about whether the proposal the father put forward if he remained in (omitted) and the children either lived with him and the mother lived within 150 kilometres of him or the children lived with the mother within 150 kilometres of him namely that children would spend time with the parent they did not primarily live with on alternate weekends from Friday to Monday and for half of the school holidays was a proposal for substantial and significant time.
The phrase “substantial time” is not defined in the Family Law Act. The dictionary definition of substantial relevant to the use of the phrase in the Act is “large in size, value or importance.” The phrase “significant time” is defined in s.65DAA(3) and for time to come within this definition it must include time on weekdays and non-weekdays and time which allows the parent to be involved in matters significant to the child.
The meaning of “substantial and significant time” was considered recently in Ulster & Viney.[19] In that case the majority of the Full Court (Justices Ainslie-Wallace and Ryan) considered that in the particular circumstances of that case time which included alternate weekends from Friday to Sunday, two hours for dinner on one day after school each alternate week, ten days in each of the shorter school holidays, half of the Christmas School holidays and time on special days was substantial and significant time.
[19] Ulster & Viney (2016) FamCAFC
I am bound by the majority decision although the majority did make it clear that their decision turned on the facts in that particular case. However in the case before me there is no proposal for dinner in the alternate week and the time proposed by the mother if the parties live within 150 kilometres of each other and by the father in his now side-lined proposal does not come within the definition of substantial and significant time.
Substantial and significant time might be reasonably practicable if the children were to live with the father and spend time with the mother and the mother remained in (omitted). She has never been bound up in work in the same way the father has and provided that she remained within sufficient commuting distance of (omitted) something more extensive than time each alternate weekend from Friday to Sunday might be possible. It would be in the children’s best interests to spend more rather than less time with the mother and I would have to consider making an order of this kind.
It might also be reasonably practicable for the father to spend a little more time with the children – for example to see them for a meal in the other week as in Ulster & Viney – if he commenced a 4/4 roster even if he remained living in (omitted) provided that the mother lived within 150 kilometres of him but this was not something the father himself suggested in his case.
In summary the situation is that equal time would not be in the children’s best interests or reasonably practicable and neither party proposed substantial and significant time. They each argued strongly that the children should live primarily with them, on the father’s case with him in (omitted) and on the mother’s case with her in (omitted).
There is absolutely nothing to recommend a change of residence for the children. They have lived all their lives in the primary care of the mother, Z has never lived in household which included the father and the father does not intend to curtail his work; he proposes that if the children live with him members of his family take on the role currently undertaken by the mother.
If the children lived with the father in his current work arrangements he would not be there when they woke up in the morning during the week and he would have a few hours with them in the evening at most. He would be reliant on others to come to his home in the morning and get the children up and ready for school and day care and reliant on others in the afternoon to pick the children up from school and day care look after them when he got home from work.
Absent serious safety concerns it would make no sense to put the children in this position, in circumstances where the father conspicuously lacks empathy for the children and insight into their needs. It would be hard on X and Y and very hard indeed on Z.
Even when the father commences his 4 days on 4 days off roster he will still need substantial help caring for the children. On his two days on he will be gone before the children wake up and will have even less time with them in the evening. On his nightshift days he will get home just before the children go to school. He will need some sleep so care arrangements will need to be made for Z at least. He will need leave for work the following evening after the children had been home for a few hours. Someone else would have to stay with the children overnight and get them ready for school or day care in the morning.
Again it would make no sense to impose this change on the children unless there were significant safety issues and there are not.
The mother’s proposal was that the children not only live primarily with her but they live with her in or near (omitted).
This is an unusual relocation application in that the mother has no connection with the (omitted) area. Her parents live in (omitted) and she has not previously lived in (omitted) save for the brief period she lived there in late 2014/early 2015. She has no friends or family in (omitted) and if she lives there she will have nobody to call on if she needs assistance with the children unless and until she forges connections in the community.
However the mother does not have any one to call on for help if she lives in (omitted) either. The father’s work is his priority and he is resentful of the mother seeming to consider that he should be at her beck and call. When the mother needed help after she injured her foot he refused to help her. The paternal grandmother might in theory be available but she is not empathic to the mother and she has commitments caring for other family members. The mother will be no more alone in (omitted) as far as parenting the children is concerned than she is in (omitted).
The drawback of the mother’s relocation proposal is that the children will be 8 ½ hours from the father rather than 1 ½ hours as they are at the moment. They will be able to spend some additional time with him during the school holidays but they will not be able to spend time with him during school terms unless he travels to (omitted).
The father is not presently able to spend time with the children during the week but he does see them on alternate weekends and the children benefit from seeing him regularly and it also gives the mother some respite from her parenting duties.
The change the mother proposes would represent a significant change for the children. The mother is their primary carer and they are strongly attached to her which rather suggests that despite all the father’s complaints about her she must be doing something right but it is not a preferable outcome for the children to live so far from the father.
The difficulty in this case is that the father conceded (reluctantly) and the family report writer recommended that the mother should not be forced to remain in (omitted) and the issue then becomes whether the mother should be constrained as to where she can move.
At one time the father proposed that the mother be permitted to move as long as she did not move more than 150 kilometres away from him and the family report writer felt that this would be a preferable outcome for the children. The father’s counsel asked me to still consider this if I was minded to consider allowing relocation but the problem is that the mother has no connections in (omitted), (omitted) or (omitted), the locations which are more or less within this radius, either. She has never lived in any of those places and she has no friends and family in any of those places. There was nothing to suggest that work was more likely to be available to her in those places than in (omitted).
The paternal grandmother is currently living in (omitted) but this appears to be a temporary thing and she has not proved herself an unconditional support for the mother since separation. She has taken the children for ice creams but she has also reported the mother to DoFACS.
Relocation cases are always difficult and the outcome is often less than ideal for the children. In AMS & ALF Kirby J pointed out that
…no single factor is dispositive of decisions governing the residence of a child in the context of the proposed relocation of the parent with whom the child resides. It is necessary for the court, making decisions about the child’s place of residence, to attempt a resolution of often irreconcilable considerations. [20]
[20] AMS & ALF [1999] CLR 160
The irreconcilable considerations in this case are the benefit to the children of being able to see their father each alternate weekend and do pleasurable activities with him and enjoy his love and attention frequently on the one hand and the importance of the mother, who the father willingly left for years to provide the majority care of the children, feeling that she has control over her life and is able to live in the place she would prefer to live and the consequent benefit to the children of having a happy and settled mother on the other hand.
Throughout these parties relationship the father prioritised his work over providing day to day care for his children. He was content for the mother to take on the role of primary carer and after separation he not only continued to prioritise his work over caring for his children, he chose to prioritise pursing a new relationship over caring for his children.
The father has spent as much time with the children as he has wished to spend since separation and it has not been extensive time. He has been critical of the mother for giving up her job or for not earning enough money without ever pausing to reflect on how the need to care for three young children and keep a house neat and tidy might impact on her capacity to cope with employment.
When the father wished to do so he moved from (omitted) to (omitted) and it is easy to feel extremely sympathetic to the mother’s feelings as reflected in the following passage in the Family Report:
The mother, however, believes that the father has ‘so much control’ and he can afford to control this situation I can’t.’ The mother at this point again reiterated that ‘he did not tell me when he was moving to (omitted) with Ms V and when I want to move away it is different. I feel I have been left with all the mess and it has been three years. I do not resent him having a new life but want to have my life as well. I am not taking the children away from their father. I know what my father did to me and I do not want my children hating their father.[21]
[21] Family Report paragraph 73
There was absolutely nothing to suggest that the mother has chosen (omitted) as a place to live to make it difficult for the father to spend time with the children. She chose it after research because she considered it was a pleasant place with affordable rental properties, ample access to services, good schools and many opportunities for the children. Her view that it was the place where she would be happy living was reinforced by the period of almost three months she spent there in late 2014 early 2015.
There was no evidence that the mother would make it difficult for the father to spend time with the children if she lived at a distance from him. She has always facilitated time and while she is not in a strong financial position the father is, so the distance need not cause any difficulties in time occurring.
It would be preferable if the children lived closer to the father but that can only be achieved by forcing the mother to live in one of a number of places with which she feels no affinity. The father has no wish to step up to the role of the children’s primary carer in the same way the mother carries out that role and it is in the children’s best interests that the mother be able to carry out her role as primary carer in a place of her choosing rather than a place of the father’s choosing.
I am satisfied that an order should be made which will permit the mother to live in the (omitted) area with the children.
I do not know when the mother will choose to relocate. I propose making orders which provide for the children’s time with the father if the mother lives more than 150 kilometres from him and also if she lives less than 150 kilometres from the father. This is the drafting regime the parties adopted at one time or another and it covers the situation of the mother remaining in (omitted) for a period of time.
It is difficult to draft orders with any precision for changeover arrangements between the parents once the mother relocates. The mother proposed an order that the parents meet halfway and I will make an order to this effect in case the parents choose to drive. The parents may prefer however to arrange for the children to travel by air. I can and will draft an order which provides for them to each pay half the cost of the air travel and I consider that I should do this despite the difference in their incomes. Difficulties could arise however if one party wants the children to fly and one wants to drive.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and sixty six (266) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 22 September 2016
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