Musgrove and Musgrove

[2017] FCCA 2996

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUSGROVE & MUSGROVE [2017] FCCA 2996

Catchwords:
FAMILY LAW – Relocation dispute – father concealing his absences in Tasmania for work from mother – whether mother consented for father to take child to Tasmania – child mature 13 year old – child desiring to move to Tasmania but to spend substantial time with mother in Victoria – significance of child’s views – orders made as sought by father and supported by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Cases cited:
Goode & Goode [2006] FamCA 1346

Applicant: MS MUSGROVE

Respondent: MR MUSGROVE

File Number: DGC 2655 of 2017

Judgment of: Judge Burchardt

Hearing dates: 23 & 24 November 2017

Date of Last Submission: 24 November 2017

Delivered at: Dandenong

Delivered on: 29 November 2017

REPRESENTATION

Counsel for the Applicant: Ms Griffiths

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Musgrove, In Person

Counsel for the Independent Children’s Lawyer:	Mr Allen
Solicitors for the Independent Children’s Lawyer:	Altavilla Family Law

ORDERS

1. The mother and father have equal shared parental responsibility for the child X born (omitted) 2004 (“the child”).

2. The child live with the father.

3. The child spend time and communicate with the mother in Victoria as follows:

   (a)During the 1^st, 2^nd and 3^rd term Tasmanian school holidays from the day immediately following the last day of term until Tuesday in the second week of the holidays.

   (b)During the Tasmanian school long summer holidays as follows:

   (i)From Sunday 17 December 2017 until Sunday 21 January 2018;

   (ii)From Friday 28 December 2018 until Friday 25 January 2019;

   (iii)From Sunday 15 December 2019 until Sunday 19 January 2020;

   (iv)From Monday 28 December 2020 until Monday 25 January 2021;

   (v)From Sunday 19 December 2021 until Friday 21 January 2022;

   (vi)As otherwise agreed between the mother and father in writing.

   (c)On Mother’s Day weekend from not later than 7pm on the Friday preceding Mother’s Day until 5.00pm on Mother’s Day.

   (d)On the middle weekend of each term from as soon as practicable after school on the Friday until Sunday.

   (e)At all reasonable times by telephone, Skype, Face Time or any other electronic means.

   (f)At any other time as may be agreed in writing by the parties.

4. For the purpose of paragraphs 3(a)-(d) inclusive above, the father is responsible for the cost of the child’s flights to and from Tasmania.

5. The mother may visit the child in Tasmania by providing not less than 14 days’ notice of the intended travel dates and times to the father and the mother shall be responsible for the cost of any such flights.

6. The mother shall be responsible for the costs of all flights for herself and the child in addition to those provided in paragraph 3.

7. The mother and father be authorised by these Orders to be at liberty to receive from (omitted) School all information, reports, newsletters and any other information usually provided to parents and attend all parent teacher interviews, concerts, sporting events and any other school function usually attended by parents.

8. The mother and father shall, as soon as practicable, inform the other of any serious illness of medical emergency involving any of the child whilst in their care, including all details regarding the injury, illness, medical attention, hospital, medical practitioners and treatment required.

9. The mother and father shall be and are hereby restrained from:-

   (a)Abusing, belittling or denigrating the other parent in the presence or hearing of the child;

   (b)Discussing these proceedings or any related documents with the child;

   (c)Committing any form of physical discipline on the child or from allowing any other person to do so.

10. The order appointing the Independent Children’s Lawyer be discharged.

11. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2655 of 2017

MS MUSGROVE

Applicant

And

MR MUSGROVE

Respondent

REASONS FOR JUDGMENT

1. I should say, by way of introduction, these reasons will be, perhaps, unusually brief.  There are two reasons for that.  First, the matter being a relocation case, it is of its nature important for the parties to know the result quickly, and second, that the issue is, in fact, a narrow one.  It is an unusual parenting dispute about the child, X, born on (omitted) 2004.  It is unusual in the best possible sense.  X’s parents are thoroughly nice and pleasant people who, absent the relocation issue which is the core dispute in this case, would be perfectly capable of caring jointly for their child. 

2. There are a number of agreed facts.  The father was born (omitted) 1978 and is, therefore, now 39.  The mother was born on (omitted) 1973 and is 44.  They married on (omitted) 2003 and separated on 1 January 2007.  They were formally divorced on 8 November 2008.  There is a half-brother, A, who is the mother’s child born (omitted) 1994.  A lives with the mother and maternal grandfather, although how long he may continue to do so is not known for certain.  There is another half-brother, B, born by the husband’s wife, Ms C, who is three years old, but I have not readily been able to find in the materials his precise date of birth. The father married Ms C on (omitted) 2010.  Two other children of the father’s have received no meaningful mention in the proceedings. 

3. In 2009, the parents entered into a parenting plan by which there was equal shared parental responsibility and X was to live with the father in one week from Thursday to Monday and in the other week from Thursday to Friday.  This was extended to a week about regime by consent in 2011.  Then in 2016, the father got a job in Tasmania for a limited period of time till mid-2017.  He went there for the week and returned to Victoria almost every weekend. 

4. This meant that X was in fact being looked after by Ms C for the week that the child was supposed to be with the father.  The father and Ms C kept this secret from the mother as they were scared of her presumed response.  This secrecy had a further and most undesirable effect.  It meant that X had to keep secret, from her mother, her father’s weekday absences.  The fact that the child managed to do this suggests a considerable degree of maturity, but on any view it must have imposed strain upon her. 

5. There the matter stood until August 2017 when the mother was made aware, not by the father but Ms C in the first instance, that the father proposed to move to Tasmania with X permanently.  The father has sought to suggest that the mother knew of the proposed move and agreed with it, but I accept that, at least as the mother saw the matter, there was only general discussion at best.  The mother filed her initiating application within days of finding out about the proposed move, and this is not consistent with her already having agreed to the move. 

6. It is clear there was a meeting at a park on 26 August 2017.  Despite competing versions, it is clear there was no agreement between the parties on that occasion.  It is equally clear that it was a tense and unhappy occasion. 

7. X has been living in Tasmania with the father, Ms C and B for several months.  She first appears to have gone there on 21 August of this year, but clearly came back to Victoria shortly thereafter for a period of time.  X is enrolled in school in (omitted) where both the father and Ms C now have permanent jobs.  They have bought a sizeable rural property and X either has or will have a horse. 

8. Both sides are, to an extent, critical of one another.  The mother alleges violence by the father during the relationship.  The father alleges mental health problems on the part of the mother.  There is nothing in either of these criticisms.  I am not satisfied the father assaulted the mother during the marriage.  The mother’s view of the father reflects a more demure personality on her part.  It should be pointed out I saw her in Court for quite some time and was able to make some observation of her demeanour. 

9. It is hard to imagine that the mother really thought there were any risk to X in the father’s care when there was equal time from 2011 and significant time even when X was very young.  I accept the mother may have felt somewhat overborne, but the fact is that is something she agreed to.  Equally, there is absolutely nothing wrong with the mother’s mental health.  She did look somewhat sad in Court and clearly, as the paternal grandmother said, had struggled somewhat to come to terms with the end of the marriage but there is absolutely nothing wrong with her.  In that regard, I refer to the report of Mr L and I will read out paragraph 7.1 which states as follows:

   Neither Mr Musgrove nor Ms Musgrove suffers from a mental disorder or personality or psychological problem and both are more than capable of seeing the day-to-day and long-term care, welfare and development of their daughter, X. 

10. That is advice given by a professional within his expertise and I entirely accept it. 

11. The other issue the case gives rise to is the question of whether the resident parent will support the relationship between the child and the non-resident parent.  The father’s conduct has not always been entirely appropriate, but it is clear that he and Ms C will support the relationship with the mother.  I have seen the two of them and heard them give their evidence, and I believe them.  The secret in 2016 to 2017 was a serious but isolated mistake. I note that the parental grandparents are also very supportive of the mother and her relationship with X.  They were both called and were excellent witnesses.  The mother was, to an extent, more guarded in her answers on this matter.  Some of her answers show ongoing bitterness about the separation and clearly she has been provoked by the Tasmanian development, if I may so describe it.  But it is also clear that the mother has been supportive in the past.  She has fostered equal time since 2011. 

12. It is clear X will be loved in either household and it is also clear that she likes B, if only from the photographs of her with him annexed to the father’s affidavit.  She appears to like A also, if one goes to paragraph 6.8 of Mr L’s report.  She has the benefit of having, at least, two very pleasant grandparents.  As I said, this is a very unusual case.  Despite inevitable imperfections, all the witnesses struck me as being extremely pleasant, nice people.  The allegations of sexual misconduct raised at the death knock against the father are just a response to the stress of the case.  They are clearly untrue because the mother would never have permitted equal time from 2011 onwards if they were. 

13. This brings us to X.  I am going to read out paragraphs 6.1, 6.3, 6.4, 6.7 and 6.9 of Mr L’s report which read relevantly as follows:

    X is a self-confident articulate girl who, after I had explained my role to her in simple terms, seemed to have no difficulty in speaking with me quite frankly about her relationships with her parents, stepmother and siblings and about what she wanted now that her father had shifted to Tasmania with his family and why she wanted this. 

    By X’s account, her relationships with her parents are very good, but different.  She told me that:

    “If mum went down to Tasmania, I’d want it the same as here…  I get on well with both of them… it’s just that, if I have to choose, I would like to stay with Dad.” 

    I asked X why she would make that choice:

    “It’s nice at Dad’s place… Tasmania is good… I’ve started school down there and that’s going well.” 

    I also wondered whether she might miss her mother with the move.  X was quite sanguine about this and quickly moved to pragmatic steps which she thought would address any such problem. 

    “I already call her every night… or she rings me... I wanted to stay like that where we can ring each other whenever we want… And we can split the holidays at summer and during the year… And she can come down or I can go up for long weekends and that… I’ll still see lots of her.” 

    My overall impression was of a relatively mature 13-year-old girl who is comfortable and relaxed in the care of both of her parents and who did not harbor any great fears of the change in residence and location that she wanted would impact adversely on the good relationships she enjoyed to any great extent. 

14. In paragraph 7, under the heading Conclusions and Recommendations, the report reads as follows: 

    Neither Mr Musgrove nor Ms Musgrove suffers from a mental disorder or personality or psychological problem and both are more than capable of seeing to the day-to-day and long-term welfare and development of their daughter, X. 

    From the history of her care, and by X’s account and by theirs, she enjoys developmentally important, robust parent-child bonds with each of them. 

    Previously, these relationship were well reflected in the arrangements for her care where X shared her time between her parents and in normal circumstances I would have recommended they continue. 

    However, Mr Musgrove’s decision and departure to live in Tasmania and Ms Musgrove’s decision to remain in Victoria now make it impossible.  Both parents gave me credible reasons for why they felt so constrained.

15. And I would just briefly interpolate on my own account that I think each parent’s desire to stay where they are is entirely reasonable in the circumstances.

16. Continuing from the report:

    X told me she would like to remain living with her father in Tasmania for clear, voluntary and age-appropriate reasons.  These reasons relate primarily to her sense of being emotionally closer to her father.  I think she should. 

    Indeed, I think there are some chance of X’s relationship with her mother, Ms Musgrove being damaged if her autonomous wishes are not respected, especially in this context where she knows that her mother knows what she wants and where, correctly or erroneously, she believes her mother had agreed to that course of action. 

    The question then becomes one of how best to support and grow X’s relationship with her mother. 

    First, it is my view that X should enjoy liberal, voluntary telephone and Internet chat communication with each parent while in the other’s care. 

    Secondly, X’s time with her mother will be most limited by the practicalities of visits between the 2 states, but I would have thought the arrangements that include:

    ·X staying with her mother for the order of 8 weeks at the usually scheduled 12 weeks of school holidays could be included and;

    ·weekend stays, especially where long weekends occur in Tasmania at least once in the months where no school holidays occur. 

17. That’s the end of the quote.  I should make it clear that I agree with all of these observations.  The child should clearly live with the father.  There should be equal shared parental responsibility and, indeed, all the more necessary because of the gap in distance between the parents.  And I note that it is not opposed by the father.  This is not a case where it is necessary to set out the statutory pathway at paragraph [65] of Goode & Goode [2006] FamCA 1346 and traverse each of the matters in section 60CC in terms. It is a dispute within a very confined space. Either the child lives with the mother in Victoria and spends time with the father in Tasmania or the other way round.

18. In coming to this conclusion, I give considerable weight to the child’s views and her maturity as observed (and unchallenged) by Mr L.  I also note the qualification Mr L expressed as to the likely possible effect should the mother, in effect, be capable of preventing X from doing what she has said she wanted to do.  I note some slight reluctance and I would put it no higher than that on the mother’s part about fomenting the relationship with the father.  Taking all these matters – and, in truth, they are the only relevant matters – together, it is quite clear that X should live in Tasmania as she wishes and spend very liberal time with her father. 

19. The Independent Children’s Lawyer has provided a minute of proposed orders which are designed to give substantial amounts of time with the mother, consistent with X’s expressed wishes.  In my view, it is entirely appropriate that those orders be made.   

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 5 December 2017