Murgatroyd and Murgatroyd
[2019] FamCA 617
•4 September 2019
FAMILY COURT OF AUSTRALIA
| MURGATROYD & MURGATROYD | [2019] FamCA 617 |
| FAMILY LAW – PARENTING – Where there are four children of the marriage between the mother and the father in these proceedings – Where the mother is seeking to relocate with the four children of the marriage to her home country of Germany – Where this is opposed by the father who is seeking that the children remain living with him in Australia – Where both parties seek sole parental responsibility – Where in the event that the children are allowed to live in Germany, the father seeks a large number of prescriptive Orders regulating his time and contact with the children – Where there is no dispute between the parties about the family violence in their relationship – Where the mother is granted sole responsibility for the children in respect of long-term decisions about the children, and the remaining matters are to be shared responsibility between the parties – Where the mother is permitted to relocate to Germany with the children and the father is allowed to spend regular holiday time with the children if he is to remain in Australia and regular contact if he is to move to Germany. |
| Family Law Act 1975 (Cth) |
| B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Cowley & Mendoza (2010) 43 Fam LR 436 Heath v Hemming (No 2) [2011] FamCA 749 McCall v Clark (2009) FLC 93-405 Preston v Preston [2011] FamCA 618 |
| APPLICANT: | Mr Murgatroyd |
| RESPONDENT: | Ms Murgatroyd |
| INDEPENDENT CHILDREN’S LAWYER: | Elizabeth Fairon |
| FILE NUMBER: | MLC | 12634 | of | 2016 |
| DATE DELIVERED: | 4 September 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 18, 19, 20, 21 and 26 June 2019 |
REPRESENTATION
| THE APPLICANT: | Self-represented |
| THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Dodd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fairon Life Law Solutions |
Orders
That in respect of the children, W born … 2005, X born … 2007, Y born … 2009, and Z born … 2012 (“the children”), the mother shall have sole parental responsibility in respect of decisions about their health and education and also for applying for and obtaining passports for the children, but the mother and the father shall have equal shared parental responsibility in respect of decisions about their religion, their names, and any changes to the parenting arrangements provided for by these Orders which make it significantly more difficult for the father to spend time with the children.
That notwithstanding the preceding orders:
(a)the mother shall be responsible for the daily care, welfare and development of the children when the children are living with the mother; and
(b)the father shall be responsible for the daily care, welfare and development of the children when the children are living with the father.
That the mother is permitted to relocate the primary residence of the children to Germany and she may do so any day after Sunday, 8 September 2019.
That the mother shall inform the father in writing by email of the date and time that she and the children will be departing from Brisbane as soon as she has booked departure flights for them.
That the children shall spend time with the father from after school on Thursday, 5 September until 5.00 pm on Sunday, 8 September 2019 with the father to collect them from the front gate of the mother’s home at the commencement of that time and to return them to the front gate of that home at the conclusion of that time, departing straight after he drops them at the gate.
That the mother shall be entitled to have a friend of her choice be present at the times that the father is to collect the children and is to return the children and she need not go out to the gate or speak with the father if she does not choose to.
That within twenty-eight (28) days of her arrival in Germany, the mother shall:
(a)attend to the formal registration of these orders in a Court of competent jurisdiction in Germany pursuant to Article 26 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996; and
(b)provide to the father a certified copy of a document evidencing such registration and any Orders the German Court makes and a certified translation in English of such documents.
That the children shall live with the mother.
That should the father relocate to live in Region J, Germany, the children shall spend time and communicate with the father at all times as may be agreed in writing, and failing agreement, then:
(a) each alternate weekend from after school Friday until before school Monday, or where Monday is a public holiday or pupil free day, then to before school Tuesday; and
(b)one half of all school holiday periods for up to seven (7) consecutive days in each school holiday period, and on a week-about basis during the summer school holiday period.
That should the father not relocate to live in Germany, then the mother shall send the children, at her expense, to Australia to spend time with the father for a minimum period of at least three (3) weeks (excluding travel time) during every Region Jn summer school holiday period. The mother may choose to travel with the boys for those holidays or not. She shall give the father at least six (6) calendar months written email notice of the exact dates that the boys’ German summer school holidays will commence and finish and the father shall elect the particular three (3) weeks that he will take time off and have the boys stay in his care and give the mother at least four (4) calendar months’ written email notice of his elected weeks with the mother to then book and pay for the flights for the boys, notifying the father of the details of the flights by way of written email at least three (3) calendar months before the date of departure from Germany.
That the father shall collect the boys from Brisbane International Airport Terminal upon their arrival and shell deliver them back to that airport terminal in time to catch their return flight home at the end of the three (3) week holiday with him.
That the father (at his expense) is at liberty to travel to Germany at any time to spend time with the children upon the giving of twenty-eight (28) days’ written email notice to the mother, with the children to spend time with the father:
(a)if during the school term – from after school Friday to before school Monday, along with Tuesday and Thursday afternoon from after school until 7.00 pm in each week; and/or
(b)for up to seven (7) days in the shorter German school holiday periods (subject to the next paragraph that provides particularly for Christmas time) and on a week-about basis over the balance of the German summer school holiday period that they are not with him in Australia.
That if the father elects to travel to Germany during the children’s Christmas school holidays then at least every second year (commencing in 2020) the children shall stay in their mother’s care (being returned to her care for these days, if necessary) from 10.00 am on 24 December to 5.00 pm on 26 December, otherwise the seven (7) days the boys spend with the father can include those days.
That during any German school holidays when the boys are spending time with the father when he travels to Germany, the father shall be permitted to take the boys with him to any other country in the European Union and also to the United Kingdom of Great Britain and Northern Ireland (if by then it is no longer a member of the European Union).
That if the father elects, each second year, he may fly the children to Brisbane (at his expense) for their German Christmas school holiday period provided they only leave Germany after their school holidays have started and arrive back in Germany before their school holidays conclude. That if the father elects to have the boys come out for this holiday, he shall give the mother at least four (4) calendar months written email notice and he shall then book and pay for the flights for the boys, notifying the mother of the details of those flights by way of written email at least three calendar months before the date of departure. The mother shall ensure the children catch the flight to Australia and the father shall ensure the children catch the return flight to Germany.
That the children be at liberty to speak with either the father or the mother by Skype or WhatsApp (or other video call application like FaceTime) at all reasonable times when they are in the other parent’s care, but failing agreement then, when the boys are with the mother:
(a)the mother shall facilitate a Skype or WhatsApp (or other video call application) video call between the children and the father each Wednesday and Sunday afternoon Queensland time (with the call to be made by the mother for the boys in the morning, local German time, to the father – before the children go to school on Wednesday mornings particularly);
(b)the children will be given privacy during such calls; and
(c)the mother will encourage the children to speak with their father and ensure that they do;
and when the children are with the father:
(d)the father shall facilitate a Skype or WhatsApp (or other video call application) video call between the children and the mother each Wednesday and each Sunday afternoon Queensland time if they are with him in Queensland or German time if they are with him in Europe;
(e)the children will be given privacy during such calls; and
(f)the father will encourage the children to speak with their mother and ensure that they do.
That the mother shall provide the children with an email account of their own so that they can communicate with their father by email and he may communicate with them, as and when they like, with the mother to encourage the children to check it regularly, to write to their father regularly, and to respond to any emails their father may send them on a regular basis. If and when each of the boys has his own mobile phone, they shall be at liberty to communicate with the father by such device as they see fit to and the mother shall inform them of that.
That on each of the children’s birthdays, the father’s birthday, Father’s Day, and Christmas Day, should the children not be in the father’s care on the day, the mother shall facilitate a Skype/WhatsApp (or other video call application) call to the father from the children so that such call coincides with the morning time wherever the father is at the time.
That on each of the children’s birthdays, the mother’s birthday, Mother’s Day, and Christmas Day, should the children be in the father’s care on the day, the father shall facilitate a Skype/WhatsApp (or other video call application) call to the mother from the children so that such call coincides with the morning time wherever the mother is at the time.
That the father and the mother shall:
(a)keep the other parent informed at all times of their residential address, contact telephone number and email address, and notify each other of any change within two (2) days of such change occurring;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children;
(c)inform the other parent as soon as reasonably practicable of any significant health issue or illness suffered by the children; and
(d)inform the other parent as soon as reasonably practicable, and at the latest, within two (2) hours, of any emergency care or hospitalisation required for the children.
That the mother shall inform the father by email writing of the name and address of any school that any of the children attend within seven (7) days of being aware that the child will be attending that school and the mother, by this Order, shall authorise the school attended by the child to give the father information about the child’s educational progress and other school related activities and to supply the father, at his expense if there is an expense, with copies of school reports, photographs, certificates and awards obtained by the child. The father shall be at liberty to show this paragraph of these Orders to the administration of any such school if they require it.
That this Order shall be an authority directed to the children’s doctors and any other treating medical or health practitioners to provide each parent with all information including documents and reports relating to the health of the children that may lawfully be provided to the parent, and to discuss with any party all matters relating to the children's health and well-being that they may lawfully be entitled to discuss.
That during the time the children are with either parent, each parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of and to the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parties in the hearing or presence of the children; and
(d) not use physical discipline at all on any of the children.
That where either parent elects to undergo counselling to assist with managing the outcome set out in these Orders that parent is at liberty to release, pursuant to s 121 of the Family Law Act 1975 (Cth), the following documents to their chosen general practitioner and mental health professional including counsellor, psychologist or psychiatrist:
(a)a copy of these orders and the reasons for judgment;
(b)the Family Reports of Mr Thomas C filed by affidavit dated 5 February 2019;
(c)the psychiatric assessment of the parties filed by affidavit dated 4 June 2018.
That the children be permitted to depart from the Commonwealth of Australia and to that end Orders 7 to 9 of the Orders dated 30 December 2016 relating to the removal of the children from the Commonwealth of Australia be discharged.
That any passport issued for the children shall be held by the mother (save for when the boys might be in the father’s care) with the mother at liberty to forthwith collect from the Brisbane Registry of the Family Court of Australia both Australian and German Passports for the children, W born … 2005, X born … 2007, Y born … 2009, and Z born … 2012 and the father shall ensure that all the boys passports are returned with them to the mother when the boys are returned to the mother at the end of any time they spend with the father.
That until further Order, from the time of the departure of the mother and the children from Australia, the father shall be entitled to exclusive possession and sole occupation of the former matrimonial home that the mother and children have been living in.
That the Independent Children’s Lawyer is discharged.
That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Murgatroyd & Murgatroyd has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: MLC 12634 of 2016
| Mr Murgatroyd |
Applicant
And
| Ms Murgatroyd |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
This judgment determines a parenting Orders dispute between the mother and father of four boys. They are W, who is 14, X, who is 11, Y, who is 10 and Z, who is seven.
The mother is 46 years of age and the father is 59 years of age. They commenced their relationship in or around 1999. When they first met, the father was living and working in Brisbane and had been for some time. He had a home in Suburb L, having bought out the interest of a previous partner he had been living with in that home.
The mother was in Australia as part of her vocational training. The father is a professional. They met through that work and began their relationship. They began living together as a couple in the house registered in the father’s name in 2001. They married in 2002 in Region J of Germany, where the mother originates from and still has family.
Their first child was born in 2005 and their fourth was born in 2012.
There is no dispute that their relationship became increasingly volatile over the years. Indeed, there was some violence between them. Each blames the other for that. In mid-2015, by agreement between them, the mother travelled with all four boys to her home town in Germany to stay for six months. The father remained in Brisbane to work. The plan was that he would fly to Germany at Christmas time, later that year, and that they would all spend some holiday time there together as a family before all flying back to Australia in the New Year 2016. However, that did not happen.
During her stay there, the mother decided that she would not return to Australia with the boys and to separate from the father. He learned of her decision before she had communicated it to him and he determined not to fly to Germany as planned. The mother then communicated her decision to him through German lawyers. They wrote to him informing him of her decision and inviting amicable agreement about future arrangements for the boys to spend time with him to continue their relationships with him.
The father then initiated action under the Convention on the Civil Aspects of International Child Abduction to which Australia and the Federal Republic of Germany are signatories. The application was prosecuted through the respective countries’ Central Authorities, and after a first instance Court hearing in City P, a return order was made for the four boys to be returned to Australia. The mother appealed against that order, but her appeal was unsuccessful and the appeal Court in City P made another return order.
The mother and the children returned to Australia in or around the early new year of 2017.
Proceedings were commenced in this Court soon thereafter. The parenting Orders trial was heard by me over five days from 18 to 26 June, this year, two and a half years after the mother’s return. The four boys have lived principally in the mother’s care all of that time, but have been spending time with the father on a regular basis throughout.
Each parent appeared at the trial without legal representation. That, of course, made the trial more difficult for everyone than it might otherwise have been. However, the Court was assisted by the appearance of an Independent Children’s Lawyer (“the ICL”) who instructed a barrister to appear for her. Much of the cross-examination workload at the trial was capably taken up by that barrister.
What the mother wants
The mother seeks orders from the Court that the four boys remain in her care and that she be permitted to relocate all four of them back to her hometown in Germany, where she wants to again take up residence and employment. She proposes regular holiday time for the boys with their father, both in Germany and Australia.
What the father wants
The father opposes the mother’s application. He came to the Court seeking orders that the children live in Brisbane in an equal time, shared care arrangement that he described as “parallel parenting”. By the end of the trial, the father had changed that position to one of seeking orders that all four boys immediately commence living with him and that they only spend six hours of supervised time with their mother each Sunday.
There is absolutely no doubt that the father loves these four boys and that he desperately fears the loss of his relationship with them if their mother is permitted to take them to live with her in Germany. I consider that is only likely to happen though if the father gives up on making an effort to maintain his relationships with his sons. Initially, I was concerned that he might do that, having regard to things he had been saying in the lead up to and during the trial. Now, after the trial has concluded, I am satisfied that he will not.
A decision that permits the mother to take the boys to live in Germany is a very difficult decision to make in the circumstances of this case, but, in the end, I am satisfied that it is the outcome that is in the best interests of the four boys. I will make Orders that permit it. These are my reasons for doing so.
How is a case like this to be decided?
“International relocation” cases, as cases like this are often described, are to be determined in the same way as all parenting Orders cases are determined.[1] Any parenting Orders that this Court makes in respect of the parties and their four boys must be made with regard to the best interests of the four boys as the paramount consideration.[2] The Family Law Act 1975 (Cth) (“the Act”) expressly sets out how the Court is to determine what is in the best interests of children who are the subject of proceedings in the Court.
1See the discussion by Murphy J in Cowley & Mendoza (2010) 43 Fam LR 436, the discussion by Kent J in Heath v Hemming (No 2) [2011] FamCA 749 and the discussion by me in Preston v Preston [2011] FamCA 618 and all the authorities referred to in those decisions.
[2] Family Law Act 1975 (Cth) ss 60CA and 65AA.
In determining what is in the best interests of these children, consideration must be given to expressly listed “primary” and “additional” considerations within Part VII of the Act.[3] The process of determination is a broad one. That is clear by reference to one of the expressly listed “additional” considerations, namely s 60CC(3)(m). It lists as a matter to be considered “any other fact or circumstance that the court thinks is relevant”.
[3] Family Law Act 1975 (Cth) ss 60CC(1), (2) and (3).
Determination of the parenting Orders is also to be made in the light of the expressly listed “Objects” of Part VII of the Act and the “Principles” underlying those Objects. These Objects and Principles are set out in s 60B of the Act.
I have previously discussed the application of these Objects and Principles in parenting cases and the relationship between them and the matters required by s 60CC to be considered when determining the best interests of the children in question.[4] I have previously referred to the Full Court’s decision in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 (“B and B”) and to the principles that were there set out. I remain mindful of all that I have previously said about these matters. As Nicholson CJ, Fogarty and Lindenmayer JJ said in their joint judgment in B and B, the ultimate obligation of the Court is to apply, in a common sense way, the individual sections of the Act so as to achieve the best interests of the children in the particular case. The actual weight to be attached to the individual components of the statutory provisions will vary, sometimes significantly, from case to case.
[4] Preston v Preston [2011] FamCA 618 at [37]–[47].
Their Honours further observed that it is well accepted that in most cases meaningful contact by a child with both of their parents is important to their welfare in the short and long-term. Their Honours were also quick to acknowledge though, that there may be cases where the best interests of the child will require contact with a parent, or even both parents, to be curtailed or even terminated.
Clearly, with which parent a child lives, where they live and how much time they spend with the other parent are matters to be determined having regard to the evidence that is presented in the particular case, considered against the paramountcy of the best interests of the child and the Objects and Principles set out in Part VII of the Act and in accordance with the statutory pathway also provided for in that Part.
In Heath v Hemming (No 2) [2011] FamCA 749 at [87], Kent J observed that it is appropriate to undertake consideration of and make findings about each of the s 60CC “best interests” considerations, having regard to the respective proposals of each of the parties, before commencing down the pathway just set out. Then after considering, weighing and assessing the evidence adduced in the proceedings, it is appropriate for the Court to indicate to which of the matters greater significance is attached and how all of the matters balance out.
Relevantly, his Honour went on to observe at [101] that parenting cases in which a parent proposes a relocation:
…bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
I respectfully agree with those observations made by his Honour.
The competing proposals in this case
The mother’s proposal is to return with all four boys to the small town of Town M which is close to City G in Region J, not far from the border between Germany and Country K and about an hour’s drive to the south-west of City P. The mother grew up there with her sister and her brother – children of a father who was a local general medical practitioner who has now been deceased for several years, and a mother who still lives in the family home in that town, though she is elderly and not in very good health.
The mother proposes to initially move the family back into part of the home that her mother continues to occupy, where they lived in the 18 months that they were previously in Germany from mid-2015 to the end of 2016. Her father’s former business premises had been converted into a three bedroomed flat for them back then. It is a big house, with a couple of levels and an underground basement. It has a big garden. She plans to obtain employment in her chosen vocation, returning to a position that she held during the 18 months that she was back there, and to send the four boys, where possible, back to the same school or schools that they attended when they were previously in Germany.
The mother’s brother and his wife live about three hours from Town M. They have children who are bilingual in German and English. The mother’s sister lives only 15 minutes away from their mother’s home and she and her children also speak fluent English, too.
The four children, understandably, already speak German to varying degrees of fluency, having lived there and attended school for 18 months, having a mother whose first language is German, having visited Germany for holidays on several occasions before travelling there in mid-2015 and having attended German lessons in Brisbane for about six months before they went in 2015.
The mother asserts, and I accept, that the boys made a lot of friends during the time that they lived in Germany, from whom they continue to receive emails, internet messages, photographs and cards. Town M is a small town, situated in a semi-rural setting with easy access to forests, lakes and mountains. It is not difficult to imagine that it might be an enjoyable place for children to grow up.
The mother proposes returning to Germany soon, as the school year commences there in September and she would like them to acclimatise for a little while before starting school there again. She proposes that the children spend holidays with the father, once per year in Australia, and more often if he travels to Germany. She would accompany them to Australia for travel here. She would like them to have each second Christmas with her and her extended family in Germany. The Christmas school holidays there only go for two weeks and their summer holidays are from the end of July to early September. It is during those holidays that the mother proposes travelling to Australia with the boys for three weeks.
As for communication between face to face visits, the mother proposes regular email and internet video conferencing communication, as well as telephone communication.
The mother acknowledges that any orders this Court makes should be registered with the German Courts so that they are enforceable there, to give the father peace of mind. I will return to this subject later in these reasons.
The mother conceded that if she is not permitted to take the boys to Germany to live, she will remain living in Brisbane and will try to find employment. She acknowledged during the trial that it is not an immediate economic or employment imperative that she return to Germany, but rather a lifestyle choice involving a desire to return to the support of her extended family in circumstances where her marriage to an Australian citizen has broken down and she has no family support here at all. Another major factor for her is that she seeks respite from the toxicity of the relationship she has with the father.
She proposed that the boys spend alternate weekends and half of the school holidays with the father if she was not permitted to take them to Germany to live.
The father proposes that the boys be moved immediately from the mother’s care to live with him. This would be effectuated simply by the mother herself vacating the former family home that was the father’s home when the two of them met and the father moving back in to that home. As I have already observed, his original proposal at the commencement of the trial was for the boys to live with him for seven days and then to live with the mother for seven days, in a rotating, equal shared care arrangement, but at the end of the trial he actually sought orders limiting the children’s time with the mother to six hours of supervised time each Sunday.
Initially, the father would not give any countenance to orders that provided for the mother to be permitted to take the children to Germany to live, so he would not propound the orders he would seek for time with the children in those circumstances. Ultimately, by the end of the trial, he changed his position on this and did put a draft of the orders he would seek in such circumstances to the Court. They included holiday visits to Australia by the children at least twice per year for at least two weeks on each occasion. He proposed, similarly to the mother, that one of those visits take place at least each second Christmas/New Year period. He also proposed that up to four times each year, if he is able to visit Europe, that he be able to have the boys in his care and that he be permitted to travel with them anywhere within Europe and the United Kingdom of Great Britain and Northern Ireland.
The evidence and findings in determining what is in the children’s best interests
The Court was greatly assisted by the evidence of an experienced social worker and family report writer, Mr C. He provided the Court with two reports – the first was prepared in May 2017, essentially to assist the Court with making interim arrangements for the children whilst the matter progressed up the Court’s list to trial, and the second in February this year, in preparation for the trial.
The Court was also assisted by the evidence of psychiatrist, Dr B, who provided a medico-legal report on the mental well-being of the mother and the father. That report was prepared in January 2018.
Both of these two experts were cross-examined during the trial.
In his first report, Mr C significantly observed:
... it is apparent that the parents have failed to have any type of functioning co-parenting relationship for a number of years. At this stage they lead mutually exclusive lives and they mistrust each other intensely.
He went on to opine that the children had “experienced a substantial disconnection from the father lasting two years”. He perceived the boys to have an elevated notion “of the father as a figure of threat and instability, rather than as a figure of secure attachment”. To the time of that report, the boys had been having only supervised time with their father since their return to Australia. Before that, they had not spent much time with him at all for 18 months whilst they were in Germany and he was in Australia.
Mr C discussed issues raised with him by the mother about her views of the father’s mental health, angry disposition and alcohol consumption. He also discussed matters raised by the father, including his views about the mother’s personality traits. He considered that a report from a psychiatrist might be of assistance. He reported having formed the opinion from accounts given by the boys that they had been exposed to quite a lot of overt conflict between the parents over the years of their childhoods.
Soon after that first family report was prepared, the parties, including the ICL, entered into an agreement for interim orders to be made by consent. Conditioned upon the father “successfully completing an anger management course” and returning a CDT (carbohydrate-deficient transferrin) test result satisfactory to the ICL, the children were to start seeing the father on an unsupervised basis on Friday evenings and all day each Sunday. The unsupervised time commenced at some point in time after that, so the pre-conditions must have been met before it started. Indeed, a little later again, that time progressed to overnight time on Saturday nights, but with only two of the boys staying at the same time, due to the small size of the apartment the father was staying in. Those orders also provided for the psychiatric report to be prepared.
Psychiatrist, Dr B, saw the parents and provided a report to the ICL that is in evidence. He considered that the mother did not present with a “current active clinically relevant psychiatric diagnosis” that impaired her function in the role of parenting the children. His diagnosis of the father was more detailed. The doctor began the diagnosis by observing that the father’s life history is marked by the tragedy of his 27 year old daughter from a previous relationship and from whom he was estranged, committing suicide. The doctor opined that this traumatic loss “is likely to have triggered stressors that resulted in a worsening of the depressive illness that existed prior to that loss, for a period of 12 months, and an ongoing sensitivity to recurrent traumatic loss”. He also pointed out that the father has been assessed and treated for this depressive illness since it developed in his mid-late 20s and was being treated with medication and counselling. Dr B opined that the father’s experience of his own childhood in his family of origin (based on the account the father had given him) was a “significant predisposing factor to depression”.
Dr B pointed out that he had studied 61 pages of notes from the father’s GP (who the father had been consulting since about 2001) and 224 pages of notes from the father’s treating psychologist (who he had been consulting since 2006). Dr B observed that these notes outlined a history of chronic anxiety and depressive symptoms experienced by the father and at least a 10 year history of recurrent personal relationship discord which has been treatment resistant.
Dr B nevertheless stated that “there is no current psychiatric illness or mental disease that impairs [the father’s] function in the role of parenting the children” but observed that a depressive illness is being treated and is in remission. He went on, though, to express the opinion that his function as a parent is dependent upon his ability to control his alcohol use to within accepted current guidelines in terms of risk to his physical and mental health and social functioning and on his capacity to control his anger about the stressors he has endured over the past few years.
Dr B observed that the father requires treatment for his psychiatric condition, was having such treatment which was considered effective, appropriate and well tolerated, but that it needed to continue and to be reviewed at three monthly intervals. He also recommended that psychological counselling needed to resume and continue over a period of around two years, being reviewed each three months. Dr B said that the counselling would need to be psychotherapy that further considers the relevance of issues such as the abusive relationships he reported in his family of origin, his relationship with alcohol and his experience of traumatic loss. He said that psychotropic medications of some sort would need to form part of the father’s treatment plan for at least two years and that his management plan would need to monitor the father’s alcohol use.
Mr C saw all the family again and prepared his second report in February this year, in the lead up to the final trial.
Interestingly, from the moment I commenced reading the second family report, I discerned the reporting of a rigid, angry and aggressive approach to the interview being taken by the father. It was quite a noticeable change from Mr C’s reporting in his first report. The reporting by Mr C is consistent with my own observations of the father on each of the occasions he appeared before me in the matter as it progressed to trial. It is also consistent with the father’s position as portrayed in his lengthy trial affidavit. That affidavit was filled with inappropriate and sometimes extremely offensive and unfair criticism of the ICL, Mr C, Dr B, and individual Judges of this Court. Unfortunately for the father, his approach to the preparation and presentation of his case diminished its overall impact, and portrayed him as a troublesome, inflexible, angry, hate-filled man, who can see no merit in any view or approach to matters that does not accord with his.
Of note, is an early observation that Mr C made in this second report. Notwithstanding the fact that Dr B’s report issued well before Mr C’s second report, and the fact that Dr B expressed no serious concerns about the mother’s mental functioning, Mr C reports that the father “states that the mother has been diagnosed with narcissistic personality disorder and may suffer bipolar disorder”. He is also reported to have described the mother as “delusional”.
I do not know where the father sourced those views or to what he attributes the beliefs expressed, but they certainly gain no support from Dr B’s written report or from the oral evidence the doctor gave when cross-examined by the father at the trial.
Positively, Mr C reported that the children presented with “less emotional intensity” than they did at the first assessment interviews. Again, he interviewed the eldest three boys, whilst the youngest child’s wish not to be interviewed was respected. Though Mr C expressed the opinion that since the first report the father has “been capable of offering them reasonable levels of hands-on care and emotionally regulated parenting” and the children “have been receptive to his care”, he still opined that the boys’ ongoing exposure to parental conflict and mistrust, as well as exposure to the father’s anger is “likely to have inhibited” their relationship with the father.
Mr C referred to the reports by the mother and the father of “the post-separation dynamics and flashpoints of conflict” and he opined that if the Court accepts the mother’s description of those, then there must be concern about the father’s capacity to protect the children from his antipathy and mistrust. Mr C described the father’s behaviour as reported by the mother as “aggressive, intimidating and controlling behaviour” and opined that it would be reasonable to expect the mother to be averse to dealing with the father if his behaviour was as she described. Mr C opined that if the Court accepts what the mother says has been happening that “there is a high likelihood of it continuing indefinitely”. Importantly, he opined that if this is the case then there is a reasonable risk of the children suffering emotional harm in the longer term and damaging their relationship with their father. Mr C said:
…In the face of such findings, I would be left with concerns for the safety and well-being of the children in their father’s care.
On the other hand, Mr C opined that if the Court accepts the father’s description of the dynamics – portraying the mother as “stifling the children’s relationship with him, by failing to agree to additional time, withholding information, acting inflexibly and portraying him as abusive” – that there would be “concerns about the mother’s willingness and ability to promote the children’s relationship with the father, particularly from a distance”.
Mr C went on to say that in any event he was left with misgivings about the quality of the co-parenting relationship and the capacity of the parents to jointly meet the children’s needs in a sustainable way. He said he thought there is a likelihood of the children being exposed to ongoing parental conflict and mistrust, to their detriment.
Mr C concluded by setting out the advantages and disadvantages of a shared living arrangement which pre-supposes the children remaining in Australia. As the father himself moved away from this proposal, I will not set these out in these reasons. Mr C went on then to set out the advantages and disadvantages of the children living in Germany with the mother. The advantages he listed were:
a.It may create a greater level of physical, emotional and financial security for the mother and more social integration, bringing her into closer contact with members of her family.
b.If the Court finds that the father persists in aggressive, intimidating behaviour to the mother, it protects her from him, and offers her a safe-haven from the dynamics.
c.The children miss Germany and the three older children display a preference to live there.
The disadvantages he listed were:
a.It will substantially reduce the scope for the children to know and understand the father as more of a meaningful caregiver to them, relegating their time to holiday time at most. Given the father’s stance, and his refusal to entertain a proposal of time and communication, it may see them disconnected from him all together. It creates a loss in terms of the traction that has been gained in the relationship with the father to date, and a loss of opportunity for the children to develop closer bonds with him.
b.If the Court finds that the mother is unwilling or unable to protect the children from antipathy or mistrust towards the father, or facilitate a relationship with him, it is unlikely that without her encouragement, the children will maintain a long-lasting, substantial connection to their father from the distance.
c.It creates a significant level of change for the children, leaving behind an Australian system of schooling, a community network and adjusting to a life immersed in the German language.
Mr C finished by observing that the case will “perhaps turn on the Court’s findings”, but he then went on to record that if the Court decides that the children must remain in Australia he will be left with concerns about how the parents can co-parent them, given their difficult dynamics. He said that he thought a shared living arrangement would inflame the dynamics of the parental conflict, despite the possible advantages of the boys receiving more fulsome care from the father. He expressed the view that if they are to stay in Australia then it would be reasonable for them to live with the mother and to spend regular and frequent time with the father structured around an alternate weekend and longer blocks during school holidays.
None of the cross-examination of Mr C by the father during the trial, nor anything else, caused me to reject any of the opinions expressed by Mr C in his written reports.
In the light of all of that expert opinion evidence, the primary considerations set out in s 60CC(2) of the Act are particularly significant considerations in the determination of this matter. I shall return to those after I have discussed the additional considerations.
As for the views of the boys, the mother’s evidence is that the boys actually expressed the desire to stay living in Germany when they were there in the second half of 2015. She said that they were expressing this desire even before she had decided to stay there. She told the Court that the boys were commenting to her on how much happier and relaxed she was there, away from the stress and conflict of the relationship with the father in Brisbane. I accept that evidence.
Mr C reported in his first report, prepared soon after the return of the mother and boys to Brisbane, that the three elder boys, who were 11, 9 and 7 years old at the time, were telling him then that they wanted to go and live in Germany. At the time of the second report, prepared early this year, although in his assessment the boys had re-connected with their father to an observable degree, Mr C still reported the three eldest (the youngest declined to be interviewed again) expressing a preference to go and live in Germany.
Nine year old Y when spoken to separately was quite positive about the family members and friends he has in Germany and the fun that he can have in the forest around the town they would live in. He did seem to have an understanding that living there would mean that he would see his father a lot less. Nevertheless, he maintained the expression of the preference.
Thirteen year old W, when spoken to separately, was not as firm in his preference to move to Germany. He did say “it would be easier” if they lived in Germany but he expressed some reservation about the idea of only seeing his father once per year, if that was all it would be. He expressed the view that living in Germany would be easier for the mother because her family lives there. He also expressed some concern about the prospect of changing schools again and having to deal with the change in primary use of language again as he has not spoken much German since being back in Australia.
Eleven year old X, when spoken to separately, expressed the clear view that he wants to go to live in Germany, though acknowledging that he might miss his father. He was not as concerned about changing schools and any difficulty the language might pose as he said he liked his previous school in Germany and he said he was pretty good at the language.
None of the boys were reported to have thought the idea of living week about with their father was a good idea. They clearly expressed preferences to live with their mother.
The father gave evidence at the trial that he had not included in his trial affidavit. That is explicable by the fact that it related to conversations he said he had just had with the boys whilst they were spending time with him just before the trial in which he discussed with them the idea of them moving to Germany. He told the Court that collectively, as a group, the boys were more inclined to say that they wanted to go to Germany to live, but that when he spoke to each of them individually about the issue, each was a little more ambivalent.
It is perhaps not surprising, in the light of the concerns that Mr C reported the boys had conveyed to him about their father’s capacity to get angry and the conflict they had witnessed over the years, that the boys were not as firm in the expression of a desire to move to Germany when being asked about it by their father in individual conversations with him. With respect to the father, I am far more comfortable giving weight to the views of the boys as reported by Mr C as having been reported to him over the course of the two reports than I am in giving weight to the views the father told the Court the boys expressed to him. I am conscious of the father’s belief and assertions that the views reported by Mr C are the product of influence and even “coaching” by the mother. However, these three older boys, at least, I am satisfied, are of an age where they have been able to form a lot of their own views about the goings on around them in their family life. The experience of life in Germany, over 18 months of their lives only a few years ago, would still be fairly fresh in their minds. I consider their ages and experience do require some respect and weight to be given to their views. I do consider their views have been appropriately ascertained from them by the report writer.
However, I also acknowledge that the boys are probably not mature enough to fully understand the impact on their relationships with their father of a permanent move to Germany and I take that into account.
Mr C observed and assessed the boys’ relationships with the mother and also with the father. Nothing he observed in the interactions between the boys and each of the parents caused him concern enough to write about. However, he reported that the three eldest boys made comments to him that suggest that “they are cognisant of flashpoints of conflict between the parents”. He expressed the opinion that their descriptions reflect a view of their father as “the instigator/aggressor” in such conflict, and that he is capable of becoming angry. Mr C reported that their comments did not suggest that they rejected their father, but rather that his behaviour discomforts them. He even reported that none of the three older boys “appeared troubled by the idea of the disconnection with the father”, though they acknowledged the possibility of missing him.
All the boys have relationships with their maternal grandmother in Germany, though, as I have already observed, she is now elderly and frail. Importantly, too, they have relationships with their maternal aunt and maternal uncle and their maternal cousins, the children of that aunt and uncle. They know them, having spent time with them on holidays before they went to live in Germany and then during the 18 months that they lived there.
In contrast, they do not have relationships with any member of their father’s extended family. Indeed, apart from a sister with whom the father has recently reconnected, the father is seemingly estranged from all of his own family members.
The proposed move to Germany will have some immediate and long-term impact upon the boys. The eldest boy, W, has been having some emotional difficulties, particularly since their return to Australia and in more recent times. He has been seeing a counsellor for some psychological assistance. He is in the early years of high school, not necessarily an easy time for any teenager. It is perhaps not unsurprising that he might be a little ambivalent about moving to Germany at this point in his life. Although he did not express opposition to the move to Germany, and nor did his brothers, there could be no doubt that the proposed move will be a very substantial change in their lives. Mr C certainly recognised that in his second report and also in his oral evidence.
Though, just as W recognised, there is little doubt the move will make things “easier” for their mother. If her life is physically, emotionally and financially more secure and stable, it is likely that her capacity to provide secure and stable parenting of these four boys will be significantly improved. That likelihood should mean that she is more able to help and guide the boys through any immediate difficulties they might face in settling in to the German environment again.
The move to Germany will mean a long distance separation from their father, unless he moves there, too, and I do not consider it likely that he will move there. Though the boys’ relationship with him has improved over the time since they have been back in Australia, I do not assess it as having reached a level where they will be significantly emotionally effected by moving away from Brisbane again and leaving the circumstance of seeing their father each weekend.
As I observed earlier, my initial concern that the father would himself abandon all communication with the boys if they moved to Germany was overcome by a level of satisfaction that such would not be the case. One thing the father was never at risk of not being able to persuade me of was his love for these four boys. The outward expression of his absolute determination to be an ongoing part of their lives quickly overcame the concern that he might not remain part of their lives if they were allowed to be moved to Germany. He clearly is struggling to comprehend that they might be permitted to go to Germany and certainly did not wish to be perceived to be giving one shred of support or acquiescence to such a move. However, in the end, I became quite satisfied that the father will continue to pursue regular and consistent communication opportunities with the boys, as well as holiday time with them in Australia and Germany, if they are permitted to move to Germany with their mother.
The father will be very disappointed and upset if the boys are permitted to go, and it will be an emotional blow to him, but it is one that I am confident he can recover from with the right commitment and treatment plan, such that his relationship with the boys will be maintained in their long term interests. Like Mr C, whose opinion on the point, I accept, I am very concerned for the wellbeing of the boys if they are not permitted to be taken by the mother to Germany and their mother is forced to stay. I am satisfied that in that situation, high conflict between the mother and the father will probably continue, the boys will continue to be exposed to it, and their relationship with their father would probably deteriorate on the back of them continuing to blame their father for the conflict. A move to Germany provides a better chance, in my view, for their relationship with their father to survive and prosper long term as they and their mother will be happier with life and will more readily accept the ongoing contact with the father.
I am satisfied that throughout the time that the boys were in Germany from mid-2015 until the end of 2016 and since their return, the father sought to participate in decision making about the boys, to communicate with them and to spend time with the boys. I am concerned though that he could have done more to spend even more time with the boys since their return to Australia. By this, I am referencing his decision to stop seeing them on an afternoon each week after school, his decision not to have the boys in his care on a few weekends leading up to the trial, and also his decision not to seek out and move into a residence that could accommodate all four boys overnight at the same time at any time since their return to Australia.
The first of these decisions he attributed to his employment obligations, whilst at the same time he has been asserting sufficient flexibility in his employment arrangements to manage a significant increase in the time the boys could spend with him. He even made the outrageous assertion to Mr C that ICL’s deliberately seek orders for children to spend time with their fathers on week day afternoons so as to cause fathers difficulty and inconvenience with their employment. The father’s decision to suspend his time with the boys over a few weekends in the lead-up to the trial, ostensibly so that he could get his trial affidavit prepared is, in my consideration, an insensitive prioritisation of his affairs. Similarly, I consider an unwillingness to try to obtain living quarters that could accommodate all four boys at once for overnight stays and to continue to simply assert that his failure to be able to do so is a consequence of the mother’s “economic abuse” of him was not sufficiently child focused.
Accordingly, I am satisfied that the fact that the father’s relationship with the boys is not as good as it could have been at this point if they had been able to spend more time together is partially the responsibility of the father and not a matter that can simply be laid at the feet of the mother.
There will be a significant cost to the maintenance of physical contact between the father and the boys if they are permitted to be taken to Germany. Air travel for the boys to Australia and back to Germany will not be cheap. Alternatively, if the father travels to Germany, his air travel and any accommodation he obtains for himself and the four boys will, similarly, not be cheap. The father proposes the mother pay for the airfares. The mother proposes sharing the cost of the boys’ airfares to Australia.
I do not assess that the cost of travel will prevent physical contact. The mother clearly expects to have to contribute to the cost and to be in a position to do so. The father is a professional on an annual income of not much less than AUD100,000 per year. In addition, I expect that any child support the father might be required or assessed to pay would take into account any impost imposed upon him for contribution to the cost of travel necessary to maintain the children’s relationships with him, if they live in Germany and he lives in Australia.
There is little practical difficulty (save for the time difference of Germany being eight hours behind Brisbane) in the children maintaining telephone, email, and internet based text or video communication with the father as often as is reasonably appropriate. Email and internet based communication can be conducted relatively cheaply. The children’s rights to maintain personal relations and direct electronic contact with their father, if they are living in Germany and he is living in Brisbane, will not be impeded. I am satisfied that the mother, if she has the comfort of knowing that the living arrangements of her and the boys are no longer being challenged by the father, will facilitate and encourage reasonable and regular electronic communication between the boys and their father. Neither the father nor the evidence persuaded me that the mother is likely to work towards destruction of the relationships between the father and the boys if she and the boys are permitted to go and live in Germany.
As to parental capacity to provide for the needs of the children, including their emotional and intellectual needs, I observe that Mr C stated that parenting capacity relates to the ability of a parent to meet the developmental needs of a child and to protect a child from harm.
All of the evidence left me satisfied that the mother has the capacity to provide for the needs of the children, but that her capacity to do so will be significantly enhanced if she is able to move to and live in or around Town M in Region J as she wants to. She said she has access to employment in the same place that she had employment during her previous stay in Germany – employment within her chosen vocational field. She will be living and working in the country of her birth and upbringing, again speaking her first language. She will have the emotional and practical support of her immediate family members. She has no practical family support here in Australia. In the first instance, after she arrives in Germany, she will have accommodation support in the form of a house, familiar to her and the boys.
I am satisfied that the mother’s relationships with the boys are soundly based, that their attachment to her is appropriate and that they are emotionally aligned with her. There is some evidence that at times, since their return to Australia, she has had some difficulties with the eldest boy, W. He has suffered emotionally, which I attribute principally to the conflict between the parents that he has been exposed to. The mother has sought appropriate help for herself and the boys throughout that period.
I do not accept that she has a personality disorder or that she is bipolar or delusional as asserted by the father. I do not accept the father’s evidence, pressed by him repeatedly throughout the trial, that the mother was physically and emotionally abusive of the boys during the marriage or that she is negligently inattentive to their care, attention and supervision, such that her care of them places them at some unacceptable risk of intentional or accidental harm.
The father raised in evidence two occasions when their youngest child has fallen into water when he could not swim as examples of the mother’s parenting “incapacity” that places the children at risk. The first of these occasions was when the family was on a visit to Germany and the child fell into a pond in the garden of the mother’s family home. The father said that he was in the yard working, with the three older boys under his supervision, and the youngest was inside under the mother’s care when he got out of the house and this happened. The father said the mother just came out fortuitously at the time the child fell in, so that she was there to pull him out of the pond. The mother said that all four of the children were in the yard with both parents and that she had gone back into the house to tend to some washing, leaving the four boys in the father’s immediate care and then it happened. I will not make a determination of fact on this issue. I do not consider I need to.
The second occasion was when the child fell into the school swimming pool whilst at the school. The father was not even there and has, therefore, simply reported something that he has heard. I accept that the child fell into the pool whilst standing or playing near the edge of the pool and was quickly pulled out of the pool by someone who was nearby in the water or on the edge. The mother conceded that. However, the father, without even having been there when it happened, asserted that the mother had not even reacted to the incident and had stood looking without responding, and just went on carrying on a conversation with someone else. I do not accept that as representing the truth of what happened.
The father also stressed evidence about another incident where he alleged that the mother had “assaulted” their eldest son in a state of anger whilst they were walking on a footpath in Brisbane which resulted in the boy striking his head on a steel column and splitting his head open. The mother’s evidence of this incident was that W was skipping across a driveway when a car came driving fast around the corner and into the driveway. The mother reacted suddenly and reached out and grabbed him, pulling him back towards her by his t-shirt. This caused him to come into contact with the steel column and resulted in him cutting his head.
These unfortunate things sometimes happen in families, even when parents are being as attentive as they can be. I do not accept that the mother did not tell the truth about the events as she perceived them. I do not accept that the mother was negligent or recklessly uncaring. I do not accept that these three incidents prove that the children are at an unacceptable risk of harm in the mother’s care. I find it rather concerning that the father tried to use these incidents as evidence that the mother is an unacceptable risk to the children.
There was evidence about another family accident that once happened which I am satisfied the father blew way out of proportion to try to present the mother in a very uncaring, malicious light. The way in which it was initially presented by him compared to how exploration of the alleged incident unfolded in Court was instructive of the way in which the father has presented his case.
In his trial affidavit, the father alleged that the mother had pushed him off a ladder once, resulting in injury to him and hospitalisation with fractures. The mother denied that and at the trial the evidence came out that she was holding a ladder at the request of the father whilst he was doing some work in the garden at another person’s property. The father overbalanced on the ladder when a branch he was working with “sprang back” at him and the ladder started falling. The mother could not maintain her hold on the ladder and the father fell to the ground, injuring himself. The father ultimately conceded these facts were essentially correct, though with some reluctance, as he still continued to use the word “push”. It was evidence that helped satisfy me that the father was prepared to exaggerate or overstate matters in an attempt to portray the mother in a bad light. That is what I am satisfied he was also doing in respect of the evidence about the child falling in the water and the other child suffering a cut to his head.
In contrast, I do have concerns that the father, too consumed and preoccupied with his own emotional troubles, has impaired capacity to properly meet the emotional and intellectual needs of the boys. At the same time, his propensity to anger and emotional lability, seen and reported on by the boys themselves, and also seen and observed by me repeatedly in Court, impacts his ability to put the boys’ need for emotional stability foremost, particularly in his dealings with the mother in their presence.
There was evidence of physical conflict between the father and the husband of the mother’s German lawyer at a handover of the children to spend some time with the father when they were in Germany. There was evidence that he was verbally abusive of the mother and her German lawyer in the presence of the children when he was in Germany. There was evidence of a number of incidents that have occurred in the time since the boys were returned to Australia that actually highlight the father’s incapacity to control himself and his emotions.
I accept the following things happened:
(i)The father wrote graffiti style on the front door of the house when the mother and boys returned to Australia in early 2017. In addition, the house was in a very messy state, displaying signs of deliberate action and inaction on the father’s part, so as to hand it over to the mother and boys in that state;
(ii)On an occasion when the father was permitted back onto the property to inspect it, he used a chainsaw to carve his surname into a tree in the garden. I consider that likely to have been done so as to make a statement to the mother about the children’s family name;
(iii)On one or two occasions, when the father went to the property to collect or return the boys, he used a hose to extinguish what he believed were candles the mother had placed just outside the front door, justifying his actions by asserting the candles were a fire risk;
(iv)The father would turn up to collect the boys from the mother wearing a t-shirt that was promoted and sold by a father’s support group. The father also wore this t-shirt to his interview with Mr C for the second family report. He told the Court that he did so to tell Mr C to “back off”.
(v)The father turned up at the local city council library one afternoon when the mother and the boys were there. He had asked the mother before that day if he could pick up all four boys, earlier than the Court ordered time, take them home to watch a game of Rugby Union between Australia and New Zealand, and have all four for a sleepover that night. The mother had not agreed to that request but he turned up to collect the boys anyway. After discovering they were not at home, the father arrived at the library and went inside and took photographs of the mother and the boys in there. He told the Court that he only went there to return some library books. I do not accept that as truthful evidence. He had already been to the home and found the family not at home. The father left the library and went outside and picked up the family pet that was tied up outside, as if he was going to take it with him. The mother went outside to tell him not to take the dog and then the father clenched his fist and waved it right in her face. A third party from inside the library went outside and intervened, urging the father to leave. A Council incident report adduced into evidence, prepared by library staff, corroborates the mother’s version of events;
(vi)On either that same day or another, the father wrote again in graffiti style on the front door of the house occupied by the mother and the boys a slogan. This is another slogan of the father’s support group who produced the t-shirt earlier referred to;
(vii)On another occasion when the father came to the home to pick up the boys, the mother was watering a plant in the front garden. The father demanded that she remove all the plants that she had “illegally planted” and told her he would not stop until he saw her “in prison”. The mother said the four boys were on the front porch watching and listening to this exchange. The mother said that the father stood right over her and said to her that he did not think he would even let the boys visit her in prison. The mother went inside and called the police. They attended and, on the father’s own admission, there was an argument between him and the police officers and he eventually left;
(viii)The father had a complete falling out with one of the women who was agreed to be supervisor of the boys’ time with him when they first returned to Australia. She and her husband had been family friends of both parties. She had written an affidavit for the father to rely upon early in the proceedings. By the time the trial came on, this woman had written another affidavit, this time one that the mother relied upon at the trial. That woman gave evidence at the trial and was cross-examined by the father. Their falling out occurred after the father had turned on her and called her a “lying bitch”.
I do not accept that the anger and conduct of the father is simply justifiable. The mother may have retained the four boys in Germany without the father’s consent, but he succeeded through a legitimate court process in getting them back to Australia. Remaining as angry and reactive as he has ever since is not, in my judgment, a reasonable response in the circumstances.
The father’s dependence on alcohol is a reasonably serious issue. I consider it impacts upon his capacity to provide soundly for the emotional needs of the boys. The mother asserts that the father’s consumption of alcohol was always a problem in their relationship, in that she asserts he drank too much too frequently. At the trial, the father told the Court that he was drinking, in the time leading up to the trial, up to a six pack of stubbies of beer or a bottle of wine each night. His evidence was that he was drinking that much so as “to cope” with his current circumstances. That evidence troubled Dr B when it was relayed to him when he was in the witness box, as it did me.
Dr B was also told that the father had recently changed his GP after a 14 year relationship and that he had not had any psychological counselling since 2017. Dr B said all that information raised serious concerns for him that the father was not adhering to guidelines for remaining healthy. He said that information meant that his opinion about the father’s function many not be as he had indicated in his report. He was concerned that this information was pointing to an instability of mood and general difficulty in coping in the father. Dr B said that it raised the question as to how long these circumstances could persist before further functional decline or further complications might occur. The doctor said that it raised concern as to whether “an alternative strategy [for managing his stressors] may have been chosen”. He was also concerned that unless the father does learn to better manage the fact that he is prone to bursts of excessive anger, some of that anger could very well be directed at the mother or the children. Dr B had read the father’s trial affidavit. He said the content of that affidavit was consistent with his concerns about the consequences of the father’s failure to take control of his management of his anger and his mental well-being.
I accept all of the doctor’s evidence and share his concerns for the father.
There was evidence that the boys themselves have suffered emotionally in the past, before the parents separated and in more recent times. They have undoubtedly been exposed to parental conflict all their lives. The parents’ general medical practitioner wrote referral letters for the parents to a psychologist as early as September 2005. The first such referral letter said:
Thank you for seeing Mr Murgatroyd and Ms Murgatroyd regarding their relationship. They have a new baby called W and things are deteriorating rapidly. They are not communicating on the same level and neither seems able to meet the others needs.
(As per the original)
Another referral letter in January 2006 said:
Thank you for seeing Mr Murgatroyd aged 45 regarding his long history of anxiety and depression. He and his wife Ms Murgatroyd have a new baby and there are lots of tensions in their relationship
(As per the original)
Another referral letter in November 2006 said:
Thank you for seeing Mr Murgatroyd aged 46 who has issues with his relationship and anxiety and depression
Then, a referral letter in November 2007 mentioned that Mr Murgatroyd had continuing problems with his relationship with Ms Murgatroyd but also said:
[W’s] behaviour is deteriorating too.
In July 2009, W, at the age of only four years old, was referred to a psychologist because of “behavioural issues”. The referral letter of the GP mentioned that the parents have “very different styles of parenting”.
In September 2010, another referral letter, to the psychiatric clinic at the O Hospital, referred five year old W because of “behavioural issues with aggressive outbursts”. It went on:
This is not entirely surprising as Home is a bit of a war zone with both parents continuously on the border of separation with angry emotional and physical aggression.
A child and adolescent psychiatrist at the O Hospital wrote back to the GP in December 2010 telling her that W’s provisional diagnosis was an “[a]djustment Disorder with disturbance of conduct and emotions”. Another letter from the O Hospital to the GP in October 2011 said:
…W’s behaviour appears to be largely dependent upon the level of conflict within the home environment, and parenting work included psycho-education related to the impact of parental conflict on behaviour and emotions in young children.
In August 2016, in Germany, the child, X, was presented to a psychologist by his mother. The written report of the psychologist that is in evidence diagnosed “an acute stress reaction … anxious traits… an emotional disorder in childhood involving fears of loss… and suspected traumatic stress disorder due to a Broken-Home-Situation”. The psychologist wrote:
The cause for the child psychiatric clinical picture of [the child] would have been the dispute of his parents in Australia. Under these difficult circumstances, [he] has not been able to build trust and personal stability. …
On their return to Australia in early 2017, the same long-time, family GP referred all four boys to psychological counselling in their local area for assessment and treatment of behavioural issues. All the boys did start attending a private counselling service, and had a number of sessions. The reports back to the GP included expressions of opinion that the children were experiencing “emotional and behavioural difficulties in response to an acrimonious separation” of their parents.
Notes from the GP that are in evidence also support a finding that the eldest boy W was still behaving badly, including towards his mother, in 2018. The mother herself said in her affidavit that towards the end of 2017, W had become more aggressive and was talking back at her, calling her names and using bad language. She said he was even starting to “bully his younger brothers and throw things around”.
The mother’s evidence, corroborated by some documentary evidence, is that W had nocturnal enuresis since he was little. According to the mother’s evidence, he did not experience the issue after they went to Germany in mid-2015, but he started experiencing it again from early in 2018 when they were back in Australia. The mother said the return of the enuresis coincided with a time when the father demanded W spend extra time with him so that he could attend a party. The mother got in touch with the school counsellor at his school who said that she would try to meet with him. The mother started a Triple P course to help her with better parenting strategies.
One quite disturbing piece of evidence from the mother is that after the incident between her and the father at the local library in August 2018, W would actually physically try to stop the mother from meeting the father at the times when the children were transitioning between the parents’ care. She said that he would “physically pin [her] down on the couch” and not allow her to answer the door or even walk to the front of the house to say goodbye to the boys who were being picked up by the father.
That evidence is consistent with some of the expert assessments that W and, to a lesser extent, his younger brother, X, feel as if they have to protect their mother and their younger brothers from the father’s anger. The mother also referred to an occasion when W was lying on the floor sobbing and not wanting them to travel in a taxi because he “was worried a driver would recognise him and his brothers as the children of ‘the angry man’”.
Interestingly, when asked about that last matter, the father readily volunteered information of a recent occasion when he got angry with a driver of a taxi who was driving him and the boys in to the city. The father told the Court that he was justifiably angry on that occasion. Perhaps that may be correct, but it appears the boys perceive their father’s anger to be quite problematic and embarrassing for them.
W’s emotional problems continued this year. In May, he was refusing to go to school and he actually asked his mother if she could take him to a youth mental health service. The mother took him and he began another series of therapy there from that time.
As much as the emotional problems these boys have faced in their lives to this date may be attributable to their exposure to conflict between their parents that is sourced in the different personalities and parenting styles of their parents, there is evidence that at least one, if not more of the boys, has reported that the father is loud and angry and that the mother usually deals with this by crying. There is also evidence that the boys would seek refuge from the conflict when all were living in the home as a family. As I have already observed, there is evidence, which I accept, that the boys blame their father for the conflict.
As for the conflict in the home, I am quite satisfied that family violence occurred between the parents. There is not any dispute about that. The father himself concedes that on one occasion he grabbed the mother in a headlock from behind, with his arm around her throat and squeezed for a moment. He says that he then threatened her that if she ever said a particular thing again that he would kill her. He said the thing she had said was that his daughter had killed herself because he was a bad father. He said that the mother said this to him in front of the boys, when he was already weeping on the floor from the mother’s goading comments.
The mother disputes the father’s account of this. She asserts that the incident in which the father grabbed her around the throat in a headlock was a long time ago and that his threat to kill her was made by him at the dinner table in early 2015 after he had cooked dinner for the family and one of the boys was not wanting to eat it. She said that the father was insisting that the boy eat the food but that she had told the boy that he did not have to eat it and told the father that he should not insist on the boy eating the food. She asserts that the father told her if that she ever countermanded his parenting directions like that again that he would kill her.
The mother actually denied that she had ever “taunted” the father by saying to him that his daughter committed suicide because he was such a bad father. However, I must say I did get a sense that the father’s assertions that she had were probably true. Her denial was just not very convincing. I consider that she probably did say this to him at some point in time, if not more than once. However, I am not persuaded that there was an occasion when the father was whimpering on the kitchen floor under a verbal assault from the mother and that it was her taunting him with those words that caused him to lose all control and grab her from behind in a headlock.
I am not convinced that it is necessary to find exactly how these things happened. Even if it did happen the way the father described the incident, such taunting does not justify a physical assault in response such as grabbing the mother from behind in a headlock with arm restraint across her throat. It does not justify a verbal threat to kill her, if that is when it happened. If, as both parents assert, this behaviour happened in front of the children, whether at the same time or on different occasions, it is even less justifiable. Verbal taunting and abuse is certainly inappropriate behaviour, particularly in front of children, whether it comes from their mother or their father. Physical assault and death threats in response are even more inappropriate.
There are other incidences of violence alleged to have taken place over the years in this relationship. The mother asserts the father kicked her. The mother asserts the father smashed the glass door on a cabinet in the home. On one occasion, she applied for a family violence protection order and after the Magistrate apparently refused to issue a temporary order the mother discontinued her application. The father points to that as indicative of the poor credit of the mother. That outcome does not persuade me that the mother was being dishonest in seeking the order. That does not persuade me that the mother was the perpetrator of the conflict and the violence.
There is evidence that the father was convicted in January 2000, before he even met the mother, of a breach of a Domestic Violence Order just before Christmas in 1999. Although no conviction was recorded, the breach was proven and he was fined $300. His former partner was the aggrieved and the complainant in respect of the breach. This charge arose out of a disturbance between the father and his former partner at the father’s home that he had shared with that woman that resulted in police being called to the home. Police records in evidence reveal that the father had removed a fuse and cut power to the home, placed two ladders in front of his former partner’s room, having forced open the bedroom door which had been locked. The notes record that the father had “also grabbed the informant around the front of her shirt and forced her away from him”. Police arrested and charged him and he was convicted in a court.
The father, at the trial before me, maintained that the police version of events was not accurate and that he had simply pleaded guilty to get it over with. The document that is in evidence in this matter recording the conviction and fine though also reflecting that the Magistrate ruled that no conviction be recorded, in my view, speaks for itself. I am satisfied that the father acted in a way that breached a domestic violence order that he was subject to at that time in 1999 and that this evidence is supportive of a finding that the father has had difficulties maintaining trouble-free intimate relationships, even before the mother ever entered his life.
The preponderance of the evidence in this matter leads me to the view that the father’s anxiety and depression, his inability to control his anger, and his use of alcohol all combined to be productive of a great deal of the conflict that has occurred between him and the mother throughout their marriage and after their separation.
The evidence that I have accepted, satisfies me that the biggest issue facing these boys still is this ongoing conflict. I have no doubt that letting the four boys go to Germany with the mother will result in a direct and significant reduction in the exposure of the boys to this ongoing conflict, in particular the father’s anger-driven behaviour directed at the mother, that the boys are frequently exposed to. I anticipate that the significant reduction in their exposure to this conflict will be beneficial to the boys’ emotional health, even if, sadly, the fundamental underlying conflict does not dissipate.
Pursuant to the Act, the two primary considerations in determining what is in the best interests of subject children are:
(i)The benefit to the children of having a meaningful relationship with both of their parents; and
(ii)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
However, in applying these two considerations, the law requires the Court to give greater weight to the second of the two of them.
As I have already observed, I am quite satisfied that the children will be exposed to far less direct conflict between their parents and far fewer consequences of the ongoing conflict if they are permitted to go to Germany with their mother to live. Living in Germany will protect them to a far greater degree from the emotional harm that they have been suffering by being continually subjected to the conflict and family violence. It will give their mother relief from the conflict, too, and I am satisfied that she will be a better parent for it, more emotionally available for them and better able to provide for all of their needs.
The circumstances of them living in Germany will not, of course, provide optimally for their relationship with their father, but “meaningful” does not mean “optimal”. The Full Court has said in McCall v Clark[5] that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, Orders can be framed to ensure that the child has a meaningful relationship with both of that child’s parents.
[5] (2009) FLC 93-405.
The boys have established relationships with their father, even though they spent 18 months in Germany whilst he remained living in Australia. I do not assess the strength of their relationships with him and the importance of them in their day to day lives, right at this stage, to be quite as significant as their relationships with their mother. I am satisfied that she is the parent with whom they have their principal emotional connection and attachment. Their relationships with her will be even better if she is permitted to move back to Germany and they go with her.
I do not consider that the established relationships that they have with their father will disappear if they are allowed to move to Germany. As I have already observed, I expect the father will do all within his power to maintain these established relationships with the boys if they are living in Germany, even if he is disappointed, hurt and angry that they have been permitted to go there.
Maintaining regular communication is easier today than it has ever been. The internet and digital communication is relatively cheap, easy to use, and readily available. It permits face to face video calling and conferencing across the world as readily as it does across the suburb or down the street. It also permits instantaneous text communication any time connected parties desire it. That will all be available to the father and the boys. The father will be able to use that to maintain the relationships he has with the boys. I am satisfied that the extent to which the father can utilise these communication methods will lie, principally, in his hands. The nature and quality of his communication with the boys will principally determine their interest in maintaining such communication from their end. I am satisfied that the mother will facilitate such communication from her end, though I expect she will not permit it to become burdensome or harmful for her or the boys.
Each of the parents acknowledges, accepts and, I am satisfied, is committed to the facilitation of time together between the boys and the father during school holidays on at least a couple of occasions each year and more, if the father is able to travel to Germany more frequently. Whilst I doubt that the financial capacity of the parties will permit more frequent visits either way, I am satisfied that holidays twice a year will be viable. Such frequency of spending time in each other’s company during holiday periods will assist in the maintenance of the already established relationships between the boys and their father as they grow into young men.
Though neither parent adduced any admissible evidence about German law, it is the case that Australia and Germany are also signatories to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. That Convention provides a right to both parents to apply in Germany for the Order of this Court to be declared enforceable in Germany or registered for the purpose of enforcement in Germany. This being the case, despite his beliefs to the contrary expressed at the trial, the father should have confidence that Orders made in this Court can be enforced in Germany if they are registered there and the mother’s commitment to compliance with the Orders and her facilitation of the contact and communication between the boys and the father wain in the future.
Application of all of these findings
The statutory presumption that it is in the best interests of children for their parents to have equal shared parental responsibility for them does not apply in this case because of the undisputed history of family violence as between the father and the mother. Accordingly, a best interests’ determination of the parental responsibility order that should be made is required.
As is so often the case in the cases I determine in this Court where there is high conflict between the parents, the evidence satisfies me that the parents do not and cannot communicate with each other in a reasonable and amicable fashion about anything, let alone about the day to day decisions pertaining to the children or the major long-term decisions. This fact, combined with the provisions of s 65DAC of the Act, creates a significant barrier to the efficacy of an equal shared parental responsibility Order.
That section applies if an equal shared parental responsibility order is in place and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child’s life. “Major long-term issue” is defined in s 4 of the Act. They are decisions about health, religion, education, children’s names and changing children’s place of residence. The section mandates three things in respect of such decision making. Firstly, that each of the parents consults the other in relation to the decision to be made. Secondly, that both parents make a genuine effort to come to a joint decision about that issue. Thirdly, that decision must be made jointly by the parents. In my judgment, that third requirement imports the notion that if the decision cannot be made jointly then it cannot be made at all by either parent unilaterally.
In my judgment, when parents cannot communicate reasonably and amicably about anything, it is not in the best interests of their children to put in place circumstances that are more likely to lead to important decisions not being able to be made and where the parents are forced back to Court for the major long-term decisions about the children to be made for them by the Court. I consider, in such circumstances, that it is best for a parent to have sole parental responsibility for the children so that those important decisions can be made as and when necessary without any unreasonable delay.
In this case, though the father seeks an order for the children to live with him, I am readily satisfied on the evidence that their best interests will be served by orders that they live with their mother. They all want to live with her and she is their principal emotional attachment. Accordingly, I will make an order conferring sole parental responsibility on the mother. However, in the circumstances of this case, I will not permit her to have sole parental responsibility to change the boys’ names or to change their living arrangements, other than to the extent permitted in the orders I make, that will make it significantly more difficult for the children to spend time with their father. Also, I will not give her sole parental responsibility to determine matters pertaining to religion. The evidence is that the father has some very strong views about religion. I understood him to be very much opposed to organised religion and not wanting his boys exposed to it. I did not get a sense that the mother had a strong view to the contrary and, as I am satisfied that decisions about religion generally do not have to be made in any circumstance of urgency, I do not consider it necessary to give the mother sole parental responsibility in this respect. Accordingly, it will be sole parental responsibility for major long-term decisions about health and education that I will confer on the mother. I will also give her sole parental responsibility for applying for and obtaining passports for the boys. Equal shared parental responsibility will pertain to the other major long-term issues.
As I am quite satisfied that the boys should live principally with their mother rather than with their father, having considered all of the evidence about the advantages and disadvantages to the boys of moving to Germany to live with their mother or of staying here in Brisbane (in which circumstances I am satisfied their mother would stay with them), I am convinced that it is in the best interests of the boys that their mother be permitted to move the boys back to Germany to live with her over there.
At the end of the trial, the father provided to the Court a 20 page document containing 137 paragraphs of orders that he submitted the Court should make in the event that the mother was to be given leave to take the boys to Germany to live. To be clear, in doing that, he wanted it to be understood that he did not support such a decision and would never be happy with it. He expressly wanted the Court not to consider the fact that he put such a document to the Court as acquiescence in a decision to permit the mother to take the boys to live with her in Germany. I acknowledge that.
I do not consider that all of the orders the father included in that document should be made. I do not consider the best interests of the four boys requires that. The more orders there are made as between these two parties, the more fuel there will be for further conflict.
A draft set of proposed orders was handed to the Court by counsel for the ICL that he submitted should be made if the Court decided that the children can be taken to Germany to live with the mother. There were far fewer proposed orders in that document.
Those proposed orders included a notice period of 28 days before the mother departs with the boys. However, the mother’s evidence was that the new school year in Region J begins on 9 September and I am of the view that she should be permitted to move the boys to Germany as close to the commencement of that new school year as possible now. Additionally, the father has been seeking immediate recovery of possession of the former family home, which he clearly regards as “his” property for a long time now. The orders I will make will permit him to again take possession of that property as soon as the mother and children depart for Germany. The sooner they go, the sooner he will be able to move back into that property.
Of course, in the meantime, the children do not need to go to school here. In the circumstances, I will make orders that permit them to stay with the father from this Thursday afternoon until Sunday evening. The mother will be permitted to leave with the boys when she can arrange it from Monday, 9 September onwards.
The mother argued that any time the boys spend with the father before their departure for Germany should be supervised, for the safety of the children. The ICL did not propose that. I heard evidence from Dr B about that. He did not consider the father would be a risk to the safety of the children in circumstances where the Court ordered them to return to Germany and they spend some unsupervised time with him before they go. I am prepared to accept that evidence. I do not consider him to be an unacceptable risk to the children in these circumstances. The father is fundamentally a good man. There is evidence that in recent times he dived into the Brisbane River in the vicinity of the art gallery and rescued a drowning man. Police thanked him particularly for that. He has also voluntarily joined a community organisation and has been training with his local group. These are good things and show that he has some very admirable qualities. It is in the boys’ best interests to be able to spend some time with him before they relocate to Germany.
The ICL’s proposed orders would also require the mother to formally register this Court’s Orders in a Court of competent jurisdiction in Germany within 28 days of her arrival in Germany and to provide the father with a certified translation in English of such registration. I accept that as an appropriate order.
The proposed orders provide for the children to spend each alternate weekend with the father from after school on Friday until school on Monday and for half of each school holiday in the event that the father also decides to move to live in Region J.
In the event that the father remains living in Australia, which I consider to be the most likely scenario, the proposed orders would require the mother to arrange for the children to travel to Australia at her expense once per year in the German summer school holiday period for a minimum stay of three weeks excluding the travel time for the children to stay with the father for the entire three weeks. The mother, by her own proposal, would bring the children out for those three weeks but she does not propose that they spend a full three weeks with the father. Her proposal is that they spend three days on/two days off with the father for the first two weeks of such period.
I do not propose to order an on/off type arrangement such as that. They will spend all of those three weeks with the father, provided he is on leave from his employment at the time, or the mother otherwise agrees.
The orders proposed by the ICL would have the father given liberty to spend time with the children in Germany at other times, if he is able to get there, on the giving of 28 days’ notice to the mother. It would be for up to seven days at a time in the shorter school holiday periods and, for the balance of the Summer school holidays when they are not in Australia, that would be on a week about basis. Otherwise, if he was able to get to Germany during the boys’ school term time, then from after school on Fridays until before school on the following Monday and on Tuesday and Thursday afternoons from after school (German schools usually start and finish earlier in the day than Australian schools) until 7.00 pm. The mother does not oppose orders providing for this and is, generally, by her position, supportive of the ICL’s position.
The ICL’s proposal also provides for the boys to spend every second Christmas with their father in Germany from the morning of Christmas Eve (which is the most celebrated of the Christmas Days in Germany) to the evening of Boxing Day and in the other year for the same length of time between Boxing Day and 28 December. I consider that to be appropriately dealt with by providing for the boys to spend Christmas Eve, Christmas Day and Boxing Day with their mother at least every second year. If the father wishes to have the boys in Australia for their Christmas school holidays each other year, I consider it appropriate for him to be able to elect that option each second year if he wants – provided the children only come for the period of their German school holidays at the time.
The ICL’s proposed Orders provide for the mother to facilitate video calling contact between the boys and their father on each of the children’s birthdays, the father’s birthday and Father’s Day.
The ICL also proposed an order that permits the children to speak with either their mother or their father, whenever they are with the other parent, by internet video calling at all reasonable times. She proposes, in the absence of agreement between the parents, minimum arrangements as follows:
(i)The mother to facilitate the video call between the father and the children, with the mother causing the call to be made to the father, each Wednesday and Sunday such that it is in morning in Germany and the late afternoon or evening in Australia;
(ii)The children to be given privacy during the calls; and
(iii)The mother to encourage the children to speak to the father.
The mother proposed providing the boys with an email account of their own so they could communicate with their father by email. She also proposed facilitation of internet video conferencing – though she referred to Sundays only. I consider twice per week to be more appropriate. She will get the benefit of that, too, when the boys are staying with their father for holidays.
The ICL also proposed orders about provision of information about schooling and health and mutual restraint in talking to the children about the other parent or in denigrating the other parent. She also proposed orders permitting the disclosure of certain material to any doctors and therapists either of the parties goes to see, in order to overcome the statutory prohibition contained in s 121 of the Act. She also proposed orders lifting the restraint on the children being removed from the country and allowing the mother to collect passports that are being held by the Court. I accept the need to make all of those orders.
I will make all of those orders. I will also restrain each of the parents from using physical discipline on any of the children.
I make the Orders set out at the commencement of these written reasons.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 September 2019.
Associate:
Date: 4 September 2019
2
2
1