Nussbaum & Nussbaum
[2017] FCCA 1638
•26 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NUSSBAUM & NUSSBAUM | [2017] FCCA 1638 |
| Catchwords: FAMILY LAW – Parenting – international relocation – issues and expert evidence in relation to the Mother’s mental health being improved if permitted to return to (country omitted) where her parents and family live and impact of Mother’s mental health and her primary care of the children – change in view and recommendations of the family consultant from what was in the earlier family report to his evidence at trial – the changed view of the family consultant was consistent with and relied upon detailed written and oral evidence of the Mother’s treating psychologist who noted the deterioration of the Mother’s mental health between the time of the first report in 2014 and the second report in 2016 despite the Mother having undergone a range of treatments to assist with her depression – a finely balanced case as described by the Full Court in Taylor v Barker – one factor ultimately decisive in this case being the expert evidence of the treating psychologist and the changed view of the family consultant. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B(1) & (2), 60CC(3)(a) – (i), 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Hutcheson & Meli [2016] FamCAFC 258 International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) & Ors [2012] HCATrans 146 (20th June 2012) M v S (2008) 37 Fam LR 32 Sigley v Evor (2011) 44 Fam LR 439 Taylor v Barker (2008) 37 Fam LR 461 U v U (2002) 211 CLR 238 |
| Applicant: | MS NUSSBAUM |
| Respondent: | MR NUSSBAUM |
| File Number: | CAC 158 of 2015 |
| Judgment of: | Judge Neville |
| Hearing dates: | 7 and 8 September 2016 |
| Date of Last Submission: | 10 January 2017 |
| Delivered at: | Canberra |
| Delivered on: | 26 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Howard |
| Solicitors for the Applicant: | Phelps Reid Lawyers |
| Counsel for the Respondent: | Ms S Christie |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Counsel for the Independent Children’s Lawyer: | Ms M Davis |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid ACT |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Mother be permitted to relocate with the children, [X] (born: (omitted0 2006) and [Y] (born: (omitted) 2008) (“the children”) to (country omitted) in January 2018.
In the event that the Father chooses not to relocate to (country omitted) (and subject to any other agreement between the parties in writing):
(a)The parents have equal shared parental responsibility for the children.
(b)The children live with the Mother.
(c)The children spend time with the Father as follows:
(i)Until December 2017:
A. From the date of these Orders until late December 2017, each alternate weekend from 5:00pm Friday until 9:00am Tuesday;
B. From the date of these Orders until late December 2017, for dinner on one occasion each week as agreed or failing agreement, the Thursday of the week wherein the children have spent time with the Father until Tuesday and the Wednesday of the other week;
C. For half of each of the 2017 Term 3 and Term 4 school holiday periods;
D. From the time of the children’s arrival in (country omitted), by telephone, Skype or ‘Facetime’ on two occasions each week, as agreed between the parties or failing agreement, between 7:30am and 8:00am (time zone omitted) each Wednesday and between 12:00pm (noon) and 1:00pm (time zone omitted) each Saturday;
E. For not less than three weeks in December 2017-January 2018, such time to take place in (country omitted) or other location within Europe as agreed between the parties;
F. For five weeks over the (omitted) summer in 2018, with such time to take place in Australia or such other location convenient to the Father and agreed in writing between the parties;
G. For not less than three weeks on one other occasion during the 2018 calendar year, with such time to take place in (country omitted).
(ii)After the Mother and children relocate to (country omitted):
A. On two occasions each calendar year, such times and dates to be agreed between the parties, with one such occasion occurring in (country omitted) and the other in Australia.
B. By telephone, Skype or ‘Facetime’ on two occasions each week, as agreed between the parties or failing agreement, between 7.30am and 8.00am (time zone omitted) each Wednesday and between 12.00noon and 1.00pm (time zone omitted) each Saturday.
C. The cost of airfares to facilitate time between the children and the Father between July 2017 and December 2018 will be equally shared by the parties.
D. From 1 January 2019, the cost of airfares to facilitate time in (country omitted) will be at the expense of the Father and the cost of airfares to facilitate time in Australia will be at the expense of the Mother.
(iii)On each of the children’s birthdays, by telephone, Skype or ‘Facetime’:
A. Between 7:30am and 8:00am (time zone omitted) should the child’s birthday fall on a school day; or
B. Between 12:00pm (noon) and 1:00pm (time zone omitted) should the child’s birthday fall on a non-school day.
In the event that the Father joins the Mother and the children in (country omitted) (and subject to any other agreement between the parties in writing):
(a)The parents have equal shared parental responsibility for the children, [X] (born: (omitted) 2006) and [Y] (born: (omitted) 2008) (“the children”).
(b)The children live with the Mother.
(c)The children spend time with the Father:
(i)Each alternate weekend from 5:00pm Friday until 9:00am Tuesday;
(ii)For dinner on one occasion each week as agreed or failing agreement, the Thursday of the week wherein the children have spent time with the Father until Tuesday and the Wednesday of the other week;
(iii)For half of each school holiday period, being the first half in 2018/2019 school year and each alternate year thereafter and the second half in the 2019/2020 school year and each alternate year thereafter; and,
(iv)Such further or other times as agreed between the parents.
(d)Notwithstanding Order 3 (a) – (c), the children shall spend time with each parent on each of the following special days, or failing agreement, with the parent with whom they are not spending time with (the non-scheduled parent) as follows:
(i)On each of the children’s birthdays:
A. From 3.00pm to 7.00pm if it falls on a school day or 10:00am to 4.00pm if it falls on a non-school day.
(ii)For Mother’s Day and Father’s Day with the parents as follows:
A. With the Mother from 5:00pm on the Saturday prior to the Sunday of Mother’s Day until before school the following Monday; and
B. With the Father from 5:00pm on the Saturday prior to the Sunday of Father’s Day until before school the following Monday.
Each party be at liberty to suspend the regular arrangements for a period of up to four weeks on one occasion each calendar year to enable that parent to travel with the children.
The Father be authorised to receive from the children’s schools any and all school reports, notices, newsletters, and any other information provided in the usual course to a parent of a child enrolled at that school.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) 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 are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Nussbaum & Nussbaum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 158 of 2015
| MS NUSSBAUM |
Applicant
And
| MR NUSSBAUM |
Respondent
REASONS FOR JUDGMENT
Introduction
It is difficult to conceive of a more delicately balanced matter, which centrally involves the Mother’s Application to relocate, or return, to (country omitted) (from whence she hails, where her wider family reside, and where she and the Father initially lived between 2000 and 2003) with the two children of the marriage, [X] (aged 11 – born (omitted) 2006) and [Y] (aged 9 – born (omitted) 2008).
Stated shortly, the delicate balance involves essentially very positive factors: the Mother has been, since the birth of the children, their primary carer; the parents have an extremely good co-parenting relationship; the children have very good relationships with both parents; there are no issues of the usual amalgam of drugs, violence or alcohol that usually attend matters in this Court.
In jurisprudential terms, the case may fairly be described as a classic instance and application of the matters considered and determined by the Full Court (by majority – Bryant CJ and Finn J) in Taylor v Barker.[1] In that case, the majority said, at [113] (emphasis added):
It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case. Thus there is no substance in any aspect of Ground 3.
[1] Taylor v Barker (2008) 37 Fam LR 461.
Likewise in the current matter. The primary issue related to the Mother’s “happiness”, and more particularly her delicate state of mental well-being (for which there was significant evidence) arising from her inability to return to her native homeland and her family. Her state of mental “well-being” understandably is crucial to her ongoing care for the children. Lest it not be clear: the proper inquiry is in relation to the making of Orders that are in the best interests of the children, [Y] and [X]. It is not an inquiry, per se, into whether the Mother should be permitted to return to (country omitted) without any other point of reference. That inquiry cannot be, and is not, divorced from the primary inquiry regarding the framing of Orders that, pursuant to s.60CA of the Act, are in the best interests of the children.[2] Accordingly, any time in the course of these reasons there is a reference or discussion in relation to the Mother, because of her mental health, returning to, or being permitted to return to, (country omitted)(country omitted), it should always be understood as being in the context of making Orders that are in the best interests of the children.
[2] In this regard, see the comments by Hayne J in AMS v AIF (1999) 199 CLR 160 at [219].
Based on (a) the expert evidence of the Mother’s psychologist, Ms A, who provided two reports (see her Affidavit filed 17th August 2016 – both Reports are annexed to this affidavit) and also gave oral evidence, and (b) that of the Family Consultant, precisely because of (i) the likely negative impact on the Mother’s mental health if she was required to remain in Australia and in turn its likely adverse impact on her ability to care for the children, (ii) the likely positive impact on her mental health, and in turn its likely positive impact on her capacity to care for the children, and (iii) the very good co-parenting relationship, and the children’s good and close relationship with both parents, if she was permitted to return to her homeland, in my view the Orders sought by the ICL (and adopted by the Mother) should be made. In my view, they are in the best interests of the children.[3]
[3] See s.60CA of the Family Law Act 1975 (“the Act”).
Indeed, but for the expert evidence of Ms A, and the oral evidence of the Family Consultant, both of which provided the one factor regarding the Mother’s mental well-being that was determinative (appropriating the word used by the Full Court in Taylor v Barker), it is more likely than not that the Mother would not have been permitted to return to (country omitted) with the children.
One preliminary evidentiary and procedural matter may be noted here.
The trial was complicated somewhat because the Family Consultant changed his view very late in his oral evidence about the Mother relocating. In his report (dated 25th November 2015 – Exhibit B) he recommended that the Mother not be permitted to return to (country omitted) with the children. In his oral evidence, and as noted, quite late in it, he changed his view to support the Mother’s Application to return to her native (country omitted). A short adjournment was permitted to allow Counsel for the Father to take instructions. Counsel for the Father was also permitted to cross examine the Family Consultant further in the light of his altered position and recommendation following questions put to him by the Independent Children’s Lawyer (“the ICL”).
The Orders sought by each of the parties, and the ICL, follow. Helpfully, all parties and the ICL provided Orders that were in the alternative: (a) in the event that the Mother was permitted to relocate, and (b) if the Mother was not permitted to do so. In the latter instance, the Father sought an increase in the children’s time with him, noting (again) that the Mother has been the children’s primary carer, and remains so.
Orders sought by Applicant Mother
The Mother’s Orders Sought were as follows:
1) That the parents, MS NUSSBAUM date of birth (omitted) 1970 (“the mother”) and MR NUSSBAUM date of birth (omitted) 1969 (“the father”) have equal shared parental responsibility for the children, [X] date of birth (omitted) 2006 and [Y] date of birth (omitted) 2008 (“the children”).
2) That the children live with the mother.
3) That the mother be at liberty to relocate with the children to (country omitted).
If the mother is permitted to relocate to (country omitted) with the children
4) That the children spend time with the father as follows:
4.1) In (country omitted):
4.1.1) In the first year following the relocation and each alterative year thereafter, for a period of one month, falling predominately during school holidays, at a time to be agreed between the mother and the father;
4.1.2) In the second year following the relocation and each alterative year thereafter, for Christmas, at times as agreed between the mother and the father;
4.1.3) At other times as agreed between the mother and the father.
4.2) In Australia:
4.2.1) In the second year after the relocation and each alternate year thereafter for a period of one month at a time to be agreed between the mother and the father; and
4.2.2) At other times as agreed between the mother and the father.
5) That in the event the mother and the father are unable to agree on the time for the children to spend time with the father pursuant to Order 4 herein that time is to coincide with the children’s summer school holidays.
6) That for the purpose of the children spending time in Australia pursuant to Order 4.2 herein, the mother is to bear the cost of return flights for the children (and the mother or her nominee whilst the children are required to be accompanied by an adult) from (country omitted) to Australia.
7) That the children have Skype time with the father twice per week at mutually convenient times.
The Mother subsequently submitted at paragraph 5 of her Written Submissions filed on 29 September 2016 that she otherwise adopted the recommendations of the ICL in her Minute of Orders Sought, which are set out below.
Orders sought by Respondent Father
The Father’s Orders Sought were as follows:
B. MINUTE OF ORDERS SOUGHT BY RESPONDENT FATHER
1) That the parents have equal shared parental responsibility for the children [X] born (omitted) 2006 and [Y] born (omitted) 2008 (“the children”).
2) That both parents are restrained from changing the children’s principal place of residence from the Canberra region, other than with the express written consent of the other party.
3) That the children live with each parent on a week-about basis, with handover to occur at the conclusion of school each Friday.
4) That Order 3 is suspended during the ACT gazetted school holiday periods, and the children shall spend half of each holiday period with the parents as follows:
4.1) In the second half of the school holiday parent with the parent with whom the children were living with during the week immediately preceding the commencement of the school holiday period;
4.2) In the first half of the school holiday period with the parent with whom the children were not living with during the week immediately preceding the commencement of the school holiday period;
4.3) that handover for the commencement of the second half of the school holiday period shall occur at 3.00pm on the Saturday nearest to the midpoint of the holiday period, and for the purpose of calculating the midpoint, the school holiday period is deemed to commence at 3.00pm on the last day of the school term, and shall conclude at the commencement of the following school term.
5) That the mother be permitted to travel to (country omitted) with the children as agreed, or failing agreement, on no more than two occasions each year at such times as agreed between the parties in writing and failing agreement, during the ACT gazetted holiday period as follows:
5.1) For up to six weeks during the long summer school holiday period in even numbered years;
5.2) For up to three weeks during the long summer school holiday period in odd numbered years, provided the commencement date occurs after 1 January;
5.3) For up to 14 days during the school term holiday period at the conclusion of Term 2.
6) That for the purposes of Order 5 the following conditions apply:
6.1) the mother shall give written notice to the father at least 90 days prior to the date of her proposed departure, such notice to include:
6.1.1) the dates when she proposes to travel with the children, and;
6.1.2) details of where the children will be staying in (country omitted), including addresses and telephone contact numbers
6.2) in the event that, as a consequence of the children travelling to (country omitted) with the mother, they spend less time with the father than as otherwise provided for in Order 4, the children shall spend make-up time with the father on dates and times to be nominated by him, and for that purpose:
6.2.1) the term “make-up time” refers to the number of days that the children ought to have spent with the father in accordance with Order 4, but were unable to do so due to travelling with the mother to (country omitted);
6.2.2) the father shall provide to the mother written notice of his nominated days for make-up time within 60 days of the commencement date;
6.2.3) The father shall only nominate dates that coincide with the ACT gazetted holiday periods.
7) Subject to Order 5, the children shall spend time with each parent during the Christmas celebratory period each year as agreed, or failing agreement:
7.1) From 10:00am Christmas Eve until 10:00am Christmas Day with the mother in years ending in an odd number and with the father in years ending in an even numbered year;
7.2) From 10:00am Christmas Day until 10:00am Boxing Day with the mother in years ending in an even number and with the father in years ending in an odd number.
8) Notwithstanding these orders, the children shall spend time with each parent on special days as agreed, or failing agreement, with the parent with whom they are not spending time with (the non-scheduled parent) on the following special days:
8.1) On each of the children’s birthday:
8.1.1) from 3.00pm to 7.00pm if it falls on a school day or 10:00am to4.00pm if it falls on a non-school day.
8.2) For Mother’s Day and Father’s Day with the parents as follows:
8.2.1) With the Mother from 5pm on the Saturday prior to the Sunday of Mother’s Day until before school the following Monday; and
8.2.2) With the Father from 5pm on the Saturday prior to the Sunday of Father’s Day until before school the following Monday.
8.3) For the parent's birthdays as follows:
8.3.1) from 3.00pm to 7.00pm if it falls on a school day or 10:00am to 4.00pm if it falls on a non-school day.
9) Notwithstanding these Orders, in the event that the mother wishes to travel to (country omitted) without the children, the children shall live with the father during the period of her absence, provided the mother gives the father written notice 30 days prior to her scheduled departure.
10) That each parent shall encourage and facilitate the children having regular telephone communication and Webcam communication, including Skype, with the other parent, and shall not unreasonably deny the children or the other parent from doing so.
In the event the Mother is permitted to relocate to (country omitted) with the children
11) The Mother will provide the Father with a weekly email update in relation to the children, including photographs of the children.
12) That the children shall spend time with the father in Australia as agreed in writing, or failing agreement:
12.1) Until such time as the parents agree that the children will travel as an unaccompanied minor, the Mother will travel with the children return from (country omitted) to Australia as follows:
12.1.1) for a four week period each year during the children’s long summer holiday period and the children will spend time with the Father for that four week period, during which time the Father is at liberty to travel freely with the children in Australia, and;
12.1.2) for a two week period each year during the children’s Christmas holiday period and the children will spend time with the Father for that two week period, during which time the Father is at liberty to travel freely with the children in Australia.
12.2) Upon the parents agreeing in writing that the children will travel as unaccompanied minors, the children will spend time with the Father in Australia as follows:
12.2.1) for a four week period each year during the long summer school holiday period and the children will spend time with the Father for that four week period, during which time the Father is at liberty to travel freely with the children in Australia.
12.2.2) for a two week period each year during the children’s Christmas holiday period and the children will spend time with the Father for that two week period, during which time the Father is at liberty to travel freely with the children in Australia.
13) The Mother will pay all of her own and the children’s return airfares for the travel referred to in Orders 12 above, and will provide the Father with a copy of the tickets at least two months prior to the travel occurring.
14) The children will spend time with the Father during any two-week period he is able to travel to (country omitted), to include Christmas Day in each alternate year, and on the Father providing the Mother with at least 30 days' notice of his intention to travel to (country omitted), provided that the Father will ensure that the children attend school during the school term and will ensure that the Mother has an address and contact number where he and the children will be staying.
15) The Mother will ensure that the children are available to Skype or “facetime” with the Father on two occasions each week, between 7:30am and 8:00am (country omitted) time on Wednesday and between 12 noon and 1pm on Saturday, and at any such other reasonable times as the children may request.
16) The Mother will provide the Father with all school reports and other documents relating to the children’s school progress within 14 days of her receiving them.
17) The Mother will provide the Father with two copies of all school photos of the children within 14 days of her receiving them, and at her own expense.
Orders sought by Independent Children’s Lawyer
The Independent Children’s Lawyer (“the ICL”) Orders Sought were as follows:
IN THE EVENT THAT THE FATHER CHOOSES NOT TO ALSO RELOCATE TO (country omitted):
1) That the parents have equal shared parental responsibility for the children, [X] born (omitted) 2006 and [Y] born (omitted) 2008 (‘the children’).
2) That the children live with the mother.
3) That the children and the mother relocate to (country omitted) in time for the children to commence school in the 2017 /2018 academic year, ideally arriving in (country omitted) by late July 2017.
4) That the children spend time with the father as follows:
A: Until December 2018
a) From the date of these Orders until late July 2017, each alternate weekend from 5pm Friday until 9am Tuesday;
b) From the date of these Orders until late July 2017, for dinner on one occasion each week as agreed or failing agreement, the Thursday of the week wherein the children have spent time with the father until Tuesday and the Wednesday of the other week;
c) For half of each of the 2016 Term 3 and Term 4 school holiday periods;
d) For all of the 2017 Easter school holiday period (7 - 26 April 2017) save for a period of five days within that time as agreed between the parties or failing agreement, the middle five days;
e) For all of the Term 2 school holiday period (30 June -17 July 2017);
f) From the time of the children’s arrival in (country omitted), by telephone, Skype or ‘facetime’ on two occasions each week, as agreed between the parties or failing agreement, between 7.30am and 8.00am (time zone omitted) each Wednesday and between 12.00 noon and 1.00pm (time zone omitted) each Saturday.
g For not less than three weeks in December 2017, such time to take place in (country omitted) or other location within Europe as agreed between the parties;
h) For five weeks over the (omitted) summer in 2018, such time to take place in Australia or such other location convenient to the father and agreed between the parties;
i) For not less than three weeks on one other occasion during the 2018 calendar year, such time to take place in (country omitted).
B: THEREAFTER:
a) On two occasions each calendar year, such times and dates to be agreed between the parties, with one such occasion occurring in (country omitted) and the other in Australia.
b) By telephone, Skype or ‘facetime’ on two occasions each week, as agreed between the parties or failing agreement, between 7.30am and 8.00am (time zone omitted) each Wednesday and between 12.00noon and 1.00pm (time zone omitted) each Saturday.
5) That the cost of airfares to facilitate time between the children and the father between July 2017 and December 2018 will be equally shared by the parties.
6) That from 1 January 2019, the cost of airfares to facilitate time in (country omitted) will be at the expense of the father and the cost of airfares to facilitate time in Australia will be at the expense of the mother.
IN THE EVENT THE FATHER JOINS THE MOTHER AND CHILDREN IN (country omitted):
1) That the parents have equal shared parental responsibility for the children, [X] born (omitted) 2006 and [Y] born (omitted) 2008 (‘the children’).
2) That the children live with the mother.
3) That the Children spend time with the father:
a) each alternate weekend from 5pm Friday until 9am Tuesday;
b) for dinner on one occasion each week as agreed or failing agreement, the Thursday of the week wherein the children have spent time with the father until Tuesday and the Wednesday of the other week;
c) for half of each school holiday period, being the first half in 2018/2019 school year and each alternate year thereafter and the second half in the 2019/2020 school year and each alternate year thereafter;
d) such further or other times as agreed between the parents.
4) That each party be at liberty to suspend the regular arrangements for a period of up to four weeks on one occasion each calendar year to enable that parent to travel with the children.
Evidence of the Parties
It should be remarked at the outset that the evidence of both parties was very similar on a very wide number of issues. They were essentially respectful of each other; they readily acknowledged the strengths of the other parent, and equally that the children have a good and close relationship with each parent, and the regular involvement of both parents in the lives of the children, at school and otherwise.[4] In many respects, not only was it almost tedious to traverse such things but it was also somewhat wasteful of that most precious of resources – time. Because of these basic areas of agreement (and quite a few others besides) I need only very lightly refer to or touch upon them. I seek primarily to highlight those areas of particular significance or import for the matter(s) in dispute – primarily the issue of the Mother’s return to (country omitted) with the children and the configuration of the children’s time with the Father in the event of the Mother’s Application being successful.
[4] Among many places see, for example, the Mother’s evidence at Transcript (8th September 2016) pp.15, 16, 17-19, 20 – 21, 23, 26 – 29, 59 ff. and 64. The Father’s cross examination commenced with similar acknowledgements at T 94 ff. Hereafter all transcript references will be simply to “T” followed by the relevant page number. In relation to the “close” relationship of the children with the Father and Mother, and between the children and the parents, a series of “SMS” messages were tendered on his behalf, which became Exhibit A.
In the light of the agreement by the parties regarding the good relationship of the children with both parents (and generally with friends and family in Australia), as well as the very co-operative relationship between the parents, the Mother’s evidence was as follows.
The Mother’s Evidence
The Mother’s “attitude” and acceptance of the children’s relationship with the Father, and regarding the co-parenting relationship, was set out in a number of places, but, for present purposes, it is neatly summarised in the following brief exchange between the Mother and the Father’s Counsel and then a little later in discussion with the Bench:[5]
[5] T 29 & 31. See also T 59-60.
If I said to you that my client was during the relationship and since both helpful and supportive of you in the care of the children; that’s correct, isn’t it?‑‑‑Sorry, can you explain that, please.
It is your view, isn’t it, that Mr Nussbaum has been both during the relationship and since helpful and supportive to you in respect of the children?‑‑‑Most of the time, yes.
…
HIS HONOUR: It’s probably – just as a general proposition, is it reasonable to say – again, I stress as a general proposition – that Mr Nussbaum is, (a), supportive of the children, and (b), supportive of you and the children?‑‑‑Very supportive of the children. Only supportive of me and the children if I happen to share the same view.
But is it reasonable to take from reading the affidavits of both of you ‑ ‑ ‑?‑‑‑Mmm.
Again, it’s a general proposition – that by and large, you tend to agree – that is, both of you tend to agree with the care of the children, and that it’s just maybe a few specific areas where there has been some sort of hiccough?‑‑‑Yes.
There was some discussion regarding and exploration of the Mother’s range of friends; unsurprisingly, some were close while others were less so. Some of them, it was said, were likely to visit her in (country omitted) if she was permitted to return to that country, while others would be less likely to do so. The Mother confirmed that her “brother-in-law” is married to a lady (Ms D) who hails from the same village in (country omitted) as the Mother.[6]
[6] T 32 – 33.
The Mother denied that she was exaggerating her claim to be socially isolated in Australia.[7]
[7] T 33.
She confirmed that she has a good therapeutic relationship with her psychologist (Ms A) and with her GP. This was in circumstances where the Mother has been prescribed anti-depressants, which are working well.[8] Later in her evidence, she confirmed that she had some depression when she lived in (country omitted)(country omitted), but this diagnosis only occurred when she lived in Australia.[9]
[8] Generally, see T 36-37, 45 & 46.
[9] T 46.
She was not, she said, “idealising” a life back in (country omitted)(country omitted).[10] She readily acknowledged that if she returned to (country omitted) she would not have the practical support of the Father and friends here, but would have practical and emotional support from her parents, family and friends in (country omitted)(country omitted).[11]
[10] T 49.
[11] T 46 & 47.
The Mother said that if she was permitted to return to (country omitted)(country omitted), the Father could stay at her residence [with the children] and she would move in with her parents. She would also provide him with her car to assist further.[12]
[12] T 39, 45 & 54.
The “stressors” earlier identified by the Mother to her psychologist involved employment or the lack of it, financial security, her state of [mental] health, lack of a support network, and “difficult life circumstances.” While a number of these had improved (e.g. employment – the Mother works 4 days per week in a (omitted)), she said her “life circumstances” remained difficult. These circumstances were: her family “on the other side of the world”, “the break-up of her marriage” and being a single Mother.[13]
[13] T 51.
The Mother confirmed on multiple occasions the assistance, including financial assistance, her parents would provide (e.g. in covering airfares for the children and the Mother returning to Australia for regular visits to see the Father).[14] Notably, for such a practical consideration (e.g. see s.60CC(3)(e)), there was no relevant challenge to the Mother’s evidence in this regard.
[14] See T 41-42, 45, 56 & 59.
The Mother confirmed her desire for the children to see and spend time with her family in (country omitted)(country omitted).[15] It was somewhat oblique here but expanded later in the evidence that just as the children have the benefit of access to and a good relationship with the Father’s extended family, this had not been possible in the same way with the Mother’s extended family, but which would be possible if she returned to (country omitted)(country omitted).
[15] T 45 – 46.
In my view, a very significant piece of evidence came from the Mother in the latter part of her oral evidence. While I have no doubt about the bona fides of either parent, and equally so little doubt about any of their evidence, the following brief exchange highlighted to me the genuine, sacrificial nature of the Mother to put the children’s interests first. Such a consideration or trait (of “sacrifice”) has been recognised for millennia as a necessary virtue in relation to good parenting, and rather more recently by the High Court in the joint judgment of Gummow and Callinan JJ in U v U, where their Honours said, at [92]:[16]
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
[16] U v U (2002) 211 CLR 238.
In the course of discussion with Counsel for the Father regarding possible travel arrangements for the children, either to or from Australia and (country omitted)(country omitted), and whether she would always accompany them, she said, quite unprompted and in my view totally unscripted (emphasis added):[17]
And also that you would have no difficulty with going to (country omitted) and, by agreement, leaving the children with my client if, for example, you couldn’t afford to take all three of you?‑‑‑I don’t know.
Why’s that?‑‑‑Because the thought of going all the way to (country omitted) and denying them the chance to see the grandparents and my – my parents having the chance to see them – I think I would rather save my money and wait till I could – we could all go.
So you think that you wouldn’t take up the opportunity to go by yourself?‑‑‑Not if it meant I could save that money and take all three of us across, no.
Okay. And is that because it’s important for you that the children have the opportunity to spend time with your parents?‑‑‑Yes.
More important than you necessarily spending time with them?‑‑‑Yes. They’re always more important than me.
[17] T 58 – 59.
I have little doubt that the Father would hold a similar view. However, in the circumstances of the Mother already noted and those that follow, she struck me as not remotely being self-serving in her evidence. She was quite self-effacing with an almost singular focus (which remains) always being able to do the very best for her children, even at significant personal cost to herself.
There was some discussion regarding the “time-with” arrangements in Canberra, with the Father seeking to move to an equal time arrangement. The Mother’s evidence was that while the children wanted more time with their Father, they did not want that extra time to be at his residence but rather at the residence of their Mother.[18]
[18] T 61.
The Mother also contended that the children advised her that some of the things they told the Family Consultant were not completely accurate and were things that they wished they had not said.[19] The Mother acknowledged that the children were quite upset after speaking with the Family Consultant about the parenting dispute; they know that the dispute involves consideration about the Mother and the children moving to (country omitted)(country omitted).[20]
[19] T 62.
[20] T 62.
The last part of the Mother’s cross examination, now principally by the ICL, canvassed the following, in my view, quite important matters.
First, the Mother confirmed the obvious and self-evident propositions that the children would have different life experiences living in (country omitted)(country omitted), not least by being able to take trips to [continental] Europe easily, plus the scope for easier access to new languages.[21]
[21] T 64 – 65.
The Mother outlined her plans to deal with the children’s likely distress about being away from their Father should the Mother be permitted to move back to (country omitted)(country omitted). Some of the remedial or ameliorating matters the Mother proposed involved nightly Skype (or telephone) chats with the Father.[22]
[22] See the general discussion at T 65.
The Mother confirmed that the children are part of her “strong social and emotional support.” She also confirmed that her mental health was “as bad as it’s ever been.” [23] If she was not permitted to return to (country omitted)(country omitted), she said that she would have a feeling of “hopelessness” and of being “trapped”, and that she “does not belong here [in Australia].” These same basic feelings, she said, were present during her marriage.[24]
[23] T 65.
[24] See T 66 & 69.
The Mother said that during a summer vacation in (country omitted) in 2013, when she was “back in (omitted)”, she felt that a weight had been lifted off her; “it was just fantastic, I felt at home.”[25]
The Father’s Evidence
[25] T 67.
Summarily stated, the Father’s evidence was as follows.
The Father confirmed that the Mother, wherever the children lived, would continue to promote his relationship with them.[26] And if the children moved with their Mother to (country omitted)(country omitted), he also confirmed that he would visit them as often as possible; he would, he said, make the saving of funds for such a purpose a priority.[27]
[26] T 94 & 104.
[27] T 95.
The Father works as a (occupation omitted). He worked in (country omitted) in a similar position between 2000 and 2002. He agreed with the proposition that his skills are, generally speaking, “transportable” to (country omitted)(country omitted). He had looked at available positions in (country omitted)(country omitted). And he has family in the same locality – (town omitted) (which is in the (omitted) region) – to which the Mother seeks to return and where her family lives. He is not “unfriendly” with them but he [currently] does not have very much to do with this part of the family. This could change of course if he moved to that region.[28]
[28] T 96.
Having said all this, the Father said that while he had considered moving to (country omitted)(country omitted), he ultimately decided that he would not do so. He later conceded that if the children pressed him about such a move, he would re-consider his decision.[29]
[29] T 97 – 98.
He agreed that his reasons for wishing to remain in Canberra/Australia are the mirror image to the reasons why the Mother wishes to return to (country omitted)(country omitted): he has family here, he works here (with better income).[30]
[30] T 96 – 97.
Very fairly, the Father confirmed that the Mother moved to Australia for two reasons: (a) because of her love for him, and (b) because he promised to return to (country omitted) if things did not work out. He also confirmed that during the relationship the Mother telephoned her parents on average two to three times per week, and her sister slightly less so.[31]
[31] T 100.
He also fairly confirmed that during the relationship, the Mother’s “friendship group” (my term) came from his friends. None of those friends have remained so for the Mother; indeed, none of them have even contacted her since the parties’ marriage broke down. He agreed that during the relationship, he was the Mother’s primary support. He also agreed that during the relationship there were times when the Mother had some serious “low points.”[32]
[32] T 100 - 102.
The Father confirmed his comments to the Family Consultant that he would feel better, should the Mother be permitted to return to (country omitted)(country omitted), if she attended to a range of matters that addressed, among other things, her mental health. He agreed that the Mother had done just this. That said, he confirmed that he would feel better about such a return but he would not be happy about it.[33]
[33] T 101 - 102.
He also said that on/during the long summer holiday in (country omitted) in 2013, the Mother was very happy.[34]
[34] T 109 – 110.
The Father said that one “sort of” got used to absences from the children.[35] And he agreed that the Mother would be happier if she returned to (country omitted) at least in the short term, but he was not so sure about her likely happiness in the longer term.[36]
[35] T 114.
[36] T 115.
He said that, if the children lived in (country omitted) with the Mother, he could afford to visit them twice per year.[37]
[37] T 115.
Evidence of Experts
Under this general heading, I deal with the evidence of Ms A, the Mother’s treating psychologist, and the Family Consultant, Mr H.
Evidence of Ms A - Psychologist
Ms A’s evidence was in two parts: (a) her two reports (dated respectively 24th October 2014 and 7th August 2016) are annexed to her affidavit, filed 17th August 2016; (b) her oral evidence. Ms A is a clinical psychologist in private practice. She is also a (occupation omitted) at the (University omitted) where she supervises (omitted).
I need only note the following from her reports.
In the summary provided in her 2014 Report, after setting out in some detail the psychological history and behaviours associated with them, Ms A stated (p.2) (emphasis added):
[5] Ms Nussbaum admitted to depending significantly on her family back in (country omitted) for support, and she has struggled to adjust to her life in Australia since moving here in 2003.
[6] Based on the results of psychometric testing, and the information obtained during her psychological consultations, Ms Nussbaum is considered to satisfy DSM V criteria for Adjustment Disorder with Anxiety.
Ms A noted (par.43 of this Report) that, according to the Mother, she developed depression at the beginning of 2002 when travelling around (omitted) with the Father. At par.43 and pars.44 - 45, Ms A recorded:
[43] … She said they had planned to spend six months travelling around (omitted) after (omitted), however she persuaded Mr Nussbaum to shorten their trip and return to (country omitted), as Ms Nussbaum was “desperate” to spend as much time as possible back at home before moving to Australia.
[44] Ms Nussbaum said that her mental state improved upon their return to (country omitted), however she would often cry herself to sleep when she thought about having to leave everybody in (country omitted) permanently.
[45] Ms Nussbaum said that Mr Nussbaum would often say that “nothing is forever”, and if she really could not settle, they could return. Ms Nussbaum said that she felt very homesick for the first two years of living in Australia but was determined to make it work.
Ms A then recorded that the Mother’s “mood” deteriorated “drastically” following the birth of the couple’s first child [X] in 2006. The Report thereafter recorded the Mother’s various, intermittent contests with depression.
In answer to specific questions put to her in this first Report, Ms A said:
[58] … there are a number of factors contributing to Ms Nussbaum’ current psychological state. These factors include the relationship breakdown with Mr Nussbaum, unemployment, financial problems, long history of mental health problems, difficult life circumstances, and a lack of an available support network.
After noting (par.60) that a trip to (country omitted) would assist the Mother and “would likely result in a significant improvement in Ms Nussbaum’ current psychological and emotional state”, Ms A stated (par.62) (emphasis added):
From her self-reports, Ms Nussbaum has experienced marked difficulty adjusting to life in Australia. She demonstrates a strong history of reliance and dependence on her family for support, as evidenced by her frequent relocations back to the village where her family live, throughout much of her adult life. In my view, if permissions was not granted for Ms Nussbaum to take her children with her to (country omitted)(country omitted), she would likely experience a worsening of her symptoms, which may develop into a more chronic and disabling mental health condition.
In Ms A’s second Report in August 2016 (annexure D to her Affidavit filed 17th August 2016), firstly she noted the significant number of occasions when she treated the Mother, through 2014, 2015 and 2016. In total, the Mother has had 27 sessions of cognitive behaviour therapy. Then at pars.12 and 13 of this Report, Ms A said:
[12] Ms Nussbaum has consistently described her mood as “numb”, and says that her mood deteriorates when the children stay with Mr Nussbaum. Motivation remains a difficulty for her, and she continues to report avoidant behaviour and problems with planning, energy, memory and concentration. She reports feelings of powerlessness and lack of control [of/in] her life. Her sleep remains disturbed … and her appetite has also been impaired, although she admitted to regular comfort eating and she said she believed she had put on in excess of 30kg since we started working together.
[13] Since first presenting, Ms Nussbaum has consistently reported high levels of distress as a result of her isolation from her family and friends in (country omitted) and resultant limited and available social support, her financial situation, and the stress of her Federal Court [sic] case. She has stated that she is affected by the knowledge that she has no family to provide emotional and practical support, and she has struggled to find employment which would afford her and her children the opportunity to live more comfortably.
At pars.15 – 18, Ms A outlined the “contributing factors” to the Mother’s psychological and emotional state. I need not repeat them because they relate to matters already set out earlier in these reasons from the Mother’s evidence and from the earlier comments from Ms A’s two Reports.
At pars.19 – 20, Ms A opined on the Mother’s psychological and emotional state if she was able to reside for a period of time in (country omitted)(country omitted), and likewise the impact on the Mother’s psychological and emotional well-being if she was not permitted to return to (country omitted) with the children.[38]
[38] See also pars.21 – 23.
Finally, at par.24 of her second Report, Ms A said:
If she were granted leave to relocate, and the move afforded her the support and improved financial status that she believes it will, then in my opinion, her psychological and emotional state would improve, and her capacity to parent and care for her children would also improve.
In her oral evidence, Ms A commented as follows.
Ms A confirmed that it was likely that the Mother’s more recent and increased stress was [unsurprisingly in my view] likely to be related to the litigation and the outcome of it. She also confirmed that part of her stress was likely to be the constant factor that she still missed her family in (country omitted)(country omitted).[39]
[39] T 73.
She confirmed that the Mother has “very limited social support” in Australia, which was a significant factor in “buffering” the Mother’s mental health.
Ms A confirmed, by reference to her Reports, that the Mother’s mental health would likely improve if she was permitted to return to (country omitted)(country omitted). There would likely be, she said, a “significant improvement” in it.[40] She considered that the Mother (and children) spending increased periods of time in (country omitted)(country omitted), rather than returning permanently, would not benefit or ameliorate the Mother’s mental health.[41]
[40] T 73.
[41] T 74.
As to whether the Mother had “idealised” her position if she was permitted to return to (country omitted)(country omitted), Ms A said (emphasis added):[42]
Have you been able to establish or to form a view in relation to whether the mother has idealised (country omitted) in her mind; so she has been unhappy for a long time in Australia ‑ ‑ ‑?‑‑‑Mmm.
‑ ‑ ‑ and she has talked about the things that are a problem here, and she has talked about what she hopes will be the case in (country omitted); have you been able to form a view about whether she has realistic or unrealistic expectations of improvement to her mental health in (country omitted)?‑‑‑Look, I think that if she were to return to (country omitted) then there would necessarily be a period of adjustment for her. However, I do believe that her expectations are quite realistic. She has had a history in the past of requiring to spend time back with her family, you know, during difficulties or when her mental health has deteriorated which has always been very positive for her.
[42] T 74.
Ms A said that she was aware that the Mother had suffered from some mental health issues prior to meeting the Father, but this was, she recalled, as a result of the Mother being involved in a motor vehicle accident.[43]
[43] T 75. See Ms A’s first Report, at par.42, in relation to this incident.
More generally in relation to the Mother’s history of mental health, Ms A said:[44]
If his Honour were to find that Ms Nussbaum suffered from those mental health difficulties whilst living with her parents in 2003, that would cast a different light on the concept that living with her parents in (country omitted) might be the panacea, wouldn’t it?‑‑‑I believe that – well, we do know statistically when somebody has had an episode of depression they’re at greater risk of having subsequent depression. So given that she has had a previous episode it, you know, means that there is a likelihood of subsequent episodes which has certainly been the case for her. I guess since leaving (country omitted) a lot of the – the factors that were there as protective of her such as the social support and perhaps a better financial position, better employment, those variables have since changed quite significantly for her since she has been here.
[44] T 75.
And in relation to a contention that the Mother had had severe depression in 2013 or Christmas 2014, Ms A said:[45]
And if his Honour were to find that she had indeed been depressed, and reliant upon her family to look after her children when she couldn’t get herself out of bed, it does throw some doubt on the conclusion that having her family close by will make her depression lessen, doesn’t it?‑‑‑Yes.
[45] T 76.
There followed a series of questions that dealt with a range of phobias the Mother has experienced, including a fear of flying. In short, Ms A said that she did not discuss any phobias with the Mother. She said further:[46]
Do you accept that if the court were to find that she experienced these phobias, even to a limited extent, they may have an impact on her parenting?‑‑‑In my sessions with Ms Nussbaum our focus has been on treating her depression. She never ever expressed those concerns to me, and as such I can only assume that they’re not a significant issue for her, and therefore in her ability to parent the children.
[46] T 78.
Ms A confirmed that the Mother has made considerable progress in relation to her “socialising” but less so, for example, in relation to exercise and use of “comfort foods”.[47] She was aware that the Father provided a range of “practical support” to the Mother.
[47] T 79 – 80.
In relation to and following a series of questions regarding the Mother’s emotional and other support, including the Mother’s “fixated goal” (the term used by Counsel for the Father) of returning to (country omitted)(country omitted), which the Mother believes “will solve her problems”, Ms A said:[48]
So if his Honour were to find that she actually had that sort of support network in Australia, then that would give you some more confidence that she might cope with an order which required her to remain here, wouldn’t it?‑‑‑I think, however, the – the difference is that family support – available family support is generally more reliable and more available than the – the support that she’s getting from her friends – her friendship group here.
[48] T 82.
Ms A accepted the proposition that, from the children’s perspective, in her “Report” there was nothing to recommend the Mother moving back to (country omitted)(country omitted).[49] This was because the focus of her Report, it was accepted, was to consider the mental health of the Mother and whether a return to her Motherland would aid her mental health. She said that she expected the Mother’s mental health would improve if she returned to (country omitted) with the children, but she accepted that she could not give a guarantee about this.[50]
[49] T 83.
[50] T 83.
She said that currently, because of her state of mental health, the Mother’s capacity to parent the children is “moderately compromised.” She had, according to Ms A, a “mild depression.”
I pause here to observe that, in the light of, inter alia, the Full Court’s comments in Taylor v Barker, the Mother’s mental health/psychological well-being is vital to her capacity properly to care for the children. Put another way, in my view it is clearly in the best interests of the children, [X] and [Y], to have their Mother’s mental health and psychological well-being properly and reasonably addressed, which in the current circumstances necessarily includes the Mother having the due care and support of her family in (country omitted) by being in very close proximity to them.
Again, Ms A was pressed by Counsel for the Father that the Mother’s view of a return to (country omitted) was being seen through “rose coloured glasses.” This was not accepted by the psychologist.[51]
[51] T 85.
The final series of questions and answers traversed earlier ground regarding the inability of Ms A to be able to state categorically that the Mother’s return to (country omitted) would be without problems or issues in relation to her state of mental health. Those questions and answers were as follows:[52]
[52] T 85 & 86.
It’s your view that even if she moves to (country omitted), she would benefit from taking medication?‑‑‑I would believe so. At least initially, yes.
And would benefit from continued psychological intervention?‑‑‑Yes. And – at least initially.
And that is because you can’t, as her treater, be confident that the move is the solution to longstanding mental health issues, can you?‑‑‑I think it’s more that she would need some time to adjust to her new life there and dealing with any adjustment that the children might be having, so I think some professional support would be of benefit.
Yes. But, certainly – and assume for a minute that she suffered from mental health issues whilst in (country omitted)(country omitted), she suffered from mental health issues whilst in Australia, you can’t be confident that returning to (country omitted) will bring an end to her symptomology, can you?‑‑‑Not immediately.
Are you telling his Honour that you could be confident that a return to (country omitted) would bring an end to her symptomology in due course?‑‑‑I think it’s possible that she could go into remission, but because she has had a number of episodes in the past she is at risk of a subsequent one.
So, putting it at highest, what you’re saying is it is possible she would go into remission but she would remain vulnerable to relapse?‑‑‑Yes.
I need only note the following in relation to Ms A’s evidence.
First, she was an impressive witness: measured, careful and not swayed when any question of her professional judgment was challenged, as it was by the Father’s experienced Counsel. Secondly, notwithstanding that she has been treating the Mother for some time, I have no reason to doubt her objectivity or her expertise in the opinions she gave, particularly where, on balance, she quite strongly supported the Mother’s return to (country omitted)(country omitted). She readily accepted, as would any expert, that scientific certitude is impossible in the wide gamut of troubled human affairs and the foretelling of the future, in which practices this Court must engage.[53] Accordingly she accepted that there could (in my words) be no guarantee that the Mother’s mental health would dramatically and forever thereafter improve without any possible relapse. That said, she supported the Mother’s Application to return to (country omitted)(country omitted). I accept Ms A’s evidence without hesitation or qualification.
[53] In this regard, see the still important comments by Hayne J in AMS v AIF (1999) 199 CLR 160 at [204] and [205] where his Honour referred to family law legislation attempting to deal with “human problems: with all their attendant variety and complexity” and that a Judge dealing with a parenting case “must grapple with the chaotic complexity of real life [and] make predictions not only of what he or she concludes may happen in the future but also of what will be “best” for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.”
In this regard (of complete certainty), I note that in a very recent relocation case (to speak generically), the Full Court said (in a slightly different context admittedly):[54]
… Inevitably, examination of hypothetical future possibilities as to a party’s response to the orders made renders absolute precision of prediction unattainable.
[54] Morrall & Olmos [2017] FamCAFC 2 at [42] (Bryant CJ, Ryan & Kent JJ).
In relation to her evidence, subject to what is said later in these reasons, I note too the comments of Kirby J in U v U where his Honour said, at [143] (internal citations omitted):[55]
As has been noted by this Court and courts in other jurisdictions, significant effects on the Mother’s emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child.
The Evidence of Mr H
[55] U v U (2002) 211 CLR 238. His Honour dissented in the result, as did Gaudron J.
Like Ms A, the evidence of the Family Consultant, Mr H, was in two parts: the Family Report (dated 25th November 2015: Exhibit B), and his somewhat lengthy oral evidence.
For current purposes, and again bearing in mind the areas of agreement (e.g. the good and close relationship between the children and their parents, the co-operative relationship between the parents) it is sufficient, and important, to set out in full that part of the Family Report that comes under the respective headings of “Evaluation” and “Recommendations.” Those sections were as follows (pars.87 – 106) (emphasis added):
87) Interviews and observations of the children with their mother and father suggest that [X] and [Y] both have a warm relationship with each of their parents. These were indicated by apparent shared enjoyment of activities, seeking proximity with each other, and engaging in playful interactions.
88) The children describe engaging in different activities with each parent, and they were observed to interact differently with the parents. The children spoke about engaging in active outdoor pursuits with their father, and in more sedentary activities at home with their mother. During observations, the children appeared excited to be engaged in activity with their father, playing loudly with apparent enjoyment. With their mother they interacted quietly but appeared settled and focused on their shared activity, and engaged warmly with their mother. It can be valuable for children to have parents with varied strengths and interests.
89) Both parents appear to actively encourage the children’s relationships with the other parent, which is demonstrated by the children having regular telephone contact with either parent while spending time with the other. This is valuable in providing the children with a sense of stability and security. It appears likely that, if the mother were to relocate to (country omitted) with the children, she would continue to facilitate the children’s relationships with their father by regular Skype and/or telephone contact, and endeavour to facilitate regular time with the father in (country omitted) and Australia so far as is practicable.
90) Although [Y] described feeling “weird” about moving between houses under the current care arrangements, reports otherwise suggest that transitions occur smoothly and the children do not appear to find them distressing.
91) [Y] suggested that he would be in favour of spending equal time with each parent. This may be indicative of his concept of “fairness,” rather than his own wishes. [X] suggested that she would like to spend some additional overnight time with her father. Considering that the parents appear to communicate effectively and have each been supportive of the children communicating with the other parent, it may be appropriate for them to spend some additional regular time with their father while they remain living in Canberra.
92) The mother has made application to relocate with the children to (country omitted)(country omitted). She proposes that relocating to (country omitted) will have a clear benefit for her mental health, and increase her capacity to care for the children. However, a relocation of such a distance will have a significant impact on the strong positive relationships that [X] and [Y] appear to have established with their father.
93) Both children expressed feeling ambivalent about moving to (country omitted)(country omitted). [X] and [Y] are both at an age when they are more likely to adapt well to the social and cultural challenges of relocating to a different country. They both report enjoying school and spending time with friends, but their most significant relationships are those within the family. As they approach adolescence, they are likely to become more dependent on social relationships, which will make relocation more challenging.
94) Although the mother was observed to engage well with the children, reports suggest that there have been periods in the past when she has been less responsive, and has depended on the father and members of her own family to meet the children’s needs. These periods have reportedly occurred both in Australia and in (country omitted)(country omitted), and the father reports that he assumed the role of primary carer for a significant period when the children were young.
95) The mother’s mental health is a significant factor affecting the wellbeing of the children. Maternal depression has been found to be associated with poor social, psychological, and cognitive outcomes for children. [Y]’ reported “short temper” and sleep difficulties, which were said to be evident prior to his parents’ separation, may indicate that he has been affected by his mother’s mental health difficulties. This may also be indicated by his apparent distress during phone calls with his mother while spending time with his father. While [X] appears to have shown greater resilience than her brother, both children appeared shy during their interviews, and report feeling “tired” when spending time with their mother. Although [X] said she felt tired because they sometimes stay up late, it may be that this tiredness is a response to their mother’s flat affect and depressed mood.
96) The mother reports that that she has never neglected the “basic” needs of the children. However, children have a range of needs. Children require their parents to provide emotional warmth, stability, appropriate stimulation, guidance and boundaries. Depressed mothers are less likely to be emotionally available, and may have difficulty engaging with children and putting appropriate or consistent boundaries in place. The children report engaging in fewer activities with their mother than with their father, and the father expressed concern that the mother may not respond appropriately when [Y] engages in tantrum behaviours.
97) If the children were required to remain in Australia against the mother’s wishes, the mother is likely to experience a worsening of her mental health symptoms in the short-term. However, there has been some research suggesting that the negative impact may not necessarily persist in the longer-term. In relocation disputes where mothers have been denied permission to relocate with their children, over half of these mothers reported at 5-year follow-up that this was a positive outcome for the children. Significant regular time with the father can help to limit any negative impact from the mother’s depression and anxiety.
98) The mother submitted psychological reports from October and December 2014 outlining her diagnoses of PTSD, Adjustment Disorder with Anxiety, and Major Depressive Disorder. A report by Ms A, with whom she attended several sessions throughout 2014, indicated that she had made limited progress during this time. However, the mother reports that these sessions are ongoing, and that “several months” ago she commenced antidepressant medication. She reports she has subsequently experienced improvements in her mood and motivation. Recent improvements in the mother’s mood and behaviour were also noted by [X] and the father. The mother reports that she benefited from hypnotherapy in 2001, and from sessions with psychologist Ms L utilising cognitive behaviour therapy (CBT) between 2009 and 2013. This suggests that psychological and medication interventions have been effective in addressing the mother’s depression and anxiety to some extent. It is not clear if these interventions are likely to be effective in the longer term. Both Ms A and Ms L note that a relocation to (country omitted) with the children would likely lead to more positive mental health outcomes for the mother.
99) However, a number of factors were identified as contributing to the mother’s mental state, and it is not clear that a relocation to (country omitted) will be sufficient to prevent her from experiencing an episode of depression that would impact on her ability to care for the children. In this event, the father will not be able to provide care. It may be appropriate that an updated mental health assessment be obtained in light of the reported benefits associated with the mother’s recent use of antidepressant medication and continued engagement with psychological support. This report may address other strategies that can assist the mother’s mental health if the children are restrained from relocating to (country omitted)(country omitted).
100) If the children relocate to (country omitted)(country omitted), it is likely that there will be considerable costs associated with ensuring that the children spend regular time with their father. The father indicated that he may not be able to take leave from his employment for periods of one month or more. In the interest of the children maintaining a meaningful relationship with their father, it will be valuable for them to spend time together with him both in (country omitted) and in Australia. Time together in (country omitted) will allow the father to become familiar with aspects of the children’s day-to-day lives there, while time in Australia will allow the children to see relatives and engage in different activities with their father. It may also be in the children’s interests to spend time with their father on a more regular basis than once per year, if this is possible.
RECOMMENDATIONS
101) That the children continue to reside in the Canberra area.
102) That the children live primarily with the mother and spend regular time with the father.
103) That the children spend time with the father on alternate weekends from Friday afternoon until Tuesday morning.
104) That the children spend time with their father on Wednesday afternoons, returning to the care of their mother before 8pm.
105) That the children be permitted to travel with the mother to spend time in (country omitted) for a minimum of one month per year.
106) That prior to the final hearing the Court consider ordering a psychological assessment by Ms A or another clinician to provide an update to reports previously submitted regarding the mother’s mental health status.
Mr H’s oral evidence was as follows.
The beginning of the Family Consultant’s evidence focussed on a recent meeting (i.e shortly prior to the hearing) between the children, Mr H and the ICL. This recent meeting was obviously occasioned because the appointment of the ICL was relatively close to the date of the trial. Mr H confirmed that the ICL made it clear to the children that they were under no compulsion to express a view regarding matters that were before the Court. They said, according to Mr H, that they would prefer that someone else made the decision about the Mother and the children moving to (country omitted)(country omitted).[56]
[56] T 120. This evidence was given on 8th September 2016 but the transcript numbering from the previous day continued.
Mr H opined that perhaps the reason why the children did not wish to express any view about the move to (country omitted) was that they did not wish to be seen choosing a particular side, either their Mother or their Father. He confirmed that he saw no evidence of them being coached by the parents in any respect.[57]
[57] T 121. This was further confirmed at T 140.
Prior to giving his evidence, Mr H confirmed that he had read the parents’ most recent affidavits, and the affidavit (and reports) of Ms A.
He too confirmed that the children have a strong bond with both parents.[58] He said that if the Mother moved to (country omitted) he thought that the Father’s bond with the children would survive but that the quality of the relationships would be affected.[59] There was brief discussion regarding ways of ameliorating any possible negative impact on the Father’s bond with the children.
[58] T 122.
[59] T 122.
Regarding the Father possibly moving to (country omitted)(country omitted), the following exchange took place:[60]
Do you think – given the conversations you’ve had with the children, the mother and the father in this matter, do you think it’s possible that the father will return to (country omitted)?‑‑‑It appeared to me he didn’t rule that out completely, but he was very firm in saying he did not – he didn’t think it was – I’m not sure of his wording exactly, but he had strong reasons for not relocating to (country omitted)(country omitted).
Yes. So he clearly doesn’t want to go to (country omitted), but he hadn’t ruled out the possibility in the future?‑‑‑That’s my recollection.
[60] T 122.
In the event that the Mother was not permitted to return to (country omitted)(country omitted), and the converse, there was the following extended exchange between the ICL and Mr H (emphasis added):[61]
[61] T 123 – 124.
And if the children and the mother stayed here, I think it’s canvassed in your report and it’s certainly her evidence, that she would be more unhappy if she were unable to go to (country omitted)?‑‑‑That’s what she said to me.
Yes. And she has consistently said that in these proceedings – in the evidence you haven’t had the benefit of. What are the risks to the children if the mother becomes more unhappy?‑‑‑I think even – and I said that I didn’t believe there had been a major impact on the children, but I think if she – her depression is likely to have impacted on the children to a degree and certainly if the symptoms worsen the children are going to be more vulnerable to that and that will be – the risk is that she’s not responsive to their needs, that she’s not as engaged with them, that the children are having their emotional needs met, and that puts them at risk of social, behavioural, academic poor outcomes.
What things could the mother and the father do to support the children through that problem if the mother and the children are not allowed to return to (country omitted)?‑‑‑Well, she – the mother mentioned to me that she can recognise the triggers when she’s – or recognise early warning signs, I think, when she’s having – when her depression is worsening, so at those times if the parents live in the same area then the children could be in the father’s care during times when the mother’s least able to care for them and that’s going to be protective for them.
How does that fit with the mother saying that having the children around is one of the things that keeps her going? That seems difficult?‑‑‑You’re right. That’s hard to resolve.
So in a sense if she’s worse emotionally the father could help by taking the burden of the children, but that in a sense will make her worse emotionally?‑‑‑Yes. There are other ways the father could assist of course. I think he has given – in his affidavit he talks about helping with mowing the lawn at the mother’s home and things like that that may fall by the wayside when she’s particularly depressed, and that’s going to help provide a better environment for the children.
So more practical supports?‑‑‑Yes.
If the mother and the children go to (country omitted) you would expect that the children would have a period at least were they were very sad and missed their father?‑‑‑Yes. Yes.
What things could the mother do to help and the father do to help the children through that period of time?‑‑‑I think organise some time for the father to spend with the children not too long after the relocation. I think any kind of preparation that could be done to scaffold the entry into school for the children, so visiting the school, checking it out and meeting with teachers and that sort of thing before the start of the school year can be really helpful in easing that transition and, as I said, maintaining that regular video communication with the father preferably.
The mother has suggested some things like the children taking photos and sending them to their father, so that they’re bringing his experience into their experience, sending letters, “This is our new school. This is us doing this.” Would that be of support, do you think, to that relationship?‑‑‑Yes. I think that’s very valuable and that’s going to help bridge the two worlds for them and that’s a role – that’s something the mother can do as well.
If the mother goes to (country omitted) would you expect there would be a period where she would be unhappy?‑‑‑I think it would – it’s a significant transition, and she’s proposing – I think she said that she has got some employment options lined up and starting at a new job can be stressful. She’s proposing to live initially with the paternal grandparents and that there may be some settling issues there. I ‑ ‑ ‑
So if I understand what you’re saying, that transition itself is stressful. The mother is already vulnerable to stresses and that that could be a time when she is more vulnerable?‑‑‑Yes.
Then followed a discussion in the light of Ms A’s evidence, the ongoing treatment of the Mother by her, and Ms A’s support for the Mother going to (country omitted)(country omitted). That discussion was as follows (emphasis added):[62]
In your report the father and [X] and the mother all talk about some significant gains that she has made in her social connectedness and her employment and financial and general indicators of good psychological health. In the 12 months since your report everybody’s evidence is that that has continued and improved. In those circumstances where she has done everything she can to be happy here and she still says, “I want to go”, do you think she has a good chance at being happier in (country omitted)?‑‑‑I think – and I’ve read the updated report from Ms A and it does outline the various strategies she has used to address the depression, and I think she has done – she has used evidence-based approaches and a combination of medication and psychotherapy of course. This is best practice in treating depression. So she has engaged in that, and she has made some gains in that she is more socially involved, by her own accounts. She talked about doing more with the children as well. So given that, I think – and she’s still feeling that and her – Ms A is talking about – she mentions that those symptoms are still – they’ve increased actually over 12 months, I think is her evidence, I can only support Ms A’s recommendation that a move would – if there are those social and economic benefits to moving, that she reports there are, that it will be beneficial for her mental health.
The evidence that Ms A gave here was that the mother had made significant improvements in social connectedness, employment, financial, her anxiety, the ....., things you’ve just referred to, and that she’s still sad and, as you said, actually worse. She gave two reasons why that might be. The stress of litigation could be impacting on the mother’s mental health and the thing that she can’t fix whilst here, her loneliness for (country omitted) and for her family would be one of the other triggers. Ms A said she couldn’t say which is more likely to be the heavier reason for the mother’s still depressed mental state. Are you able to give any view based on what you have seen and what you have read about which one of those things is more or less likely to be the reason or the more weighty reason?‑‑‑Well, we certainly can’t discount the stressful impact of the matter being in court of course and no doubt that’s impacting on her mental health. I can’t say that if the matter was finalised and she was to remain in Australia with the children that her mental health would then improve. I’m in the same position as Ms A on that regard.
[62] T 125.
Regarding the “timing” of any return to (country omitted)(country omitted), and in the light of comments at par.93 of his Report, Mr H said (emphasis added):[63]
And that there are different success stories depending on the age and developmental needs of a child, and I think your evidence is there that as they approach adolescence they become more dependent on social relationships and that would make relocation more challenging for them?‑‑‑That’s right.
The question I have about that is it seems to me that if she doesn’t go now, but waits until the future, that that would actually be more difficult for the children?‑‑‑That’s my belief.
So it would be now or never, more or less?‑‑‑It would be – there would be additional challenges if it were deferred.
[63] T 126 - 127.
In relation to the Father and his capacity to cope if the Mother was permitted to move back to (country omitted)(country omitted), Mr H said (emphasis added):[64]
I’m actually meaning – really want to focus upon the father more so than anything else. Like just he personally, how will he cope, resourcefulness, etcetera, resilience?‑‑‑Okay. So – I was getting out when I asked him that he said – he spoke very reasonably, very rationally, about what arrangements would be – he would have in place, which I took as evidence that he’s quite resilient, I suppose, and would make that arrangement work. He spoke a lot about all the supports that he has got around. His mother lives here and other family friends and so on. So in terms of the social supports that he has got here that’s not a concern, but, as I said, he spoke quite logically and reasonably about what arrangements he would have place, so that was comforting for me.
So would I be able to infer from that that you think that, in terms of “coping” personally, if the mother was permitted to relocate with the children that he would cope reasonably well in all the circumstances because of the supports, etcetera, but, you know, he’s – he just has the character and wherewithal in order to do that?‑‑‑Well, he didn’t say anything that would make me think otherwise. He presented as a resilient person with supports around him so that’s all I can say I suppose.
[64] T 127.
Comparatively, he agreed that the Father would cope better with the Mother returning to (country omitted) than the Mother would if she was required to remain in Australia.[65] He also noted the positive co-parenting relationship which would be a protective factor for the children in the event that the Mother was permitted to go back to (country omitted)(country omitted).[66]
[65] T 128.
[66] T 128.
He confirmed (again) that he agreed with Ms A that it would be beneficial for the Mother’s mental health if she returned to (country omitted)(country omitted), and conversely, if she was not so permitted, at least in the short term and possibly longer term, her mental health would likely suffer.[67]
[67] T 128 - 129.
The first part of what ultimately became a very long cross examination by the Father’s Counsel began with comments that confirmed that the parent’s child, [X], had been experiencing panic attacks, which were related, to some degree at least, to the current litigation. Mr H said he understood that both children knew what the litigation was about and the competing proposals of their parents, accepting (again) that the children are attached to both parents.[68]
[68] T 136.
Then came a contest between the parties’ Counsel regarding a series of “SMS/txt” messages from the daughter to her Father and whether they were “suggestive” of a level of anxiety on the child’s behalf. Objection was taken to the question(s) to which Counsel for the Father said, by way of observation of the competence of the Family Consultant: “He’s a professional with no vested interest in the outcome.”[69] Given the evidence that was to come from the Family Consultant some time later, one could not be sure that Counsel still held that view; in my view, the comment regarding the Family Consultant’s “independence” remains apposite. Indeed, to have changed his view in the light of the more recent expert evidence recently made available to him only shows further his consideration and independence.
[69] T 138.
Mr H agreed that there was a significant difference between speaking between the children and the Father face to face, and doing so via a service such as Skype.[70] Likewise, the very obvious matters of day to day interactions between a parent and a child, and being involved in school activities, are not possible when one of the parents relocates was also confirmed, as well as a sense of loss by the children about one parent being very far away.[71]
[70] T 138.
[71] See the discussion at T 138 – 139.
There followed a further discussion this time regarding [X]’s anxiety and how a move overseas may exacerbate this. Likewise, [Y] has been having some “temper tantrums”. It was suggested that the Father’s presence in the lives of the children in relation to such behaviour would be a buffer. Mr H suggested that if the Mother’s depression was addressed then she would be better able to deal with these issues which seemed to be occurring only in her household.[72]
[72] T 141.
He also agreed that there was no “panacea” to the Mother’s concerns, including her mental health, including by a return to (country omitted)(country omitted).
Mr H agreed that the treatment of the Mother’s mental health was “multi-faceted”. He seemed not to agree with the proposition that a return to (country omitted) was akin to putting all of the Mother’s [therapeutic] eggs into one basket – thus, moving back to the family village in (country omitted) will make all things right. Fairly, in my view, the Family Consultant noted that such a move was after the Mother had tried, over a significant period of time, “a range of treatment options” that are otherwise known or shown to be “most effective for depression.” And he acknowledged that the Mother’s symptoms were “worsening.”[73]
[73] T 143.
There followed an exploration of the range of unexplored matters that have not been faced by the children – e.g. to move away from their paternal Grandmother, their cousins in Australia, and a move in “hemispheres.” These were all generally acknowledged, in my view, as self -evident propositions that apply, to varying degrees in all cases that involve relocation.
In answer to a proposition that a move overseas was risky for the children, given the closeness of the relationship with the Father, Mr H said that he did not necessarily think so because the closeness of the relationship was in fact protective of the children.[74]
[74] See the discussion at T 145 - 146.
Understandably, the “tyranny of distance” was a topic of further discussion and acknowledged as an impediment to a daily, close relationship. This led to the simple observation, which masked the whole complex exercise of the Court, as follows:[75]
So what we’re effectively doing when we approach the competing proposals is to weigh the inferior relationship against the potential benefits of the move, aren’t we, for the children?‑‑‑Yes.
[75] T 147.
This included a detailed consideration of the Father’s proposals for the “time-with” arrangements in the event that the Mother was not permitted to return to (country omitted)(country omitted). I need not traverse the minutiæ of these details, which are set out in the Father’s Minute of Orders Sought, and in the transcript as cited.[76]
[76] See T 146 – 147.
The ICL then asked some further questions in re-examination. The following exchange is important to record in full, thus (emphasis added):[77]
After everything that you have been asked and had the opportunity to talk about since your report has been written, is there anything now that you know that you didn’t know then or anything now that you consider that you hadn’t considered then that would make you change the recommendations that are in your report?‑‑‑Yes. Well, the – the recommendations in my report included an updated report from Ms Nussbaum’ treating psychologist and that report would change my recommendation.
And now that you’ve had that updated report, is it still the case where you say that the mother should remain here and that the children should spend additional time with their father?‑‑‑No, and I think – I stress it’s – there’s not a clear advantage but, on balance, I would recommend that the children relocate with the mother to (country omitted)(country omitted).
[77] T 150.
Immediately, Counsel for the Father sought an adjournment, which was granted.
The first part of the further cross-examination of Mr H by Counsel for the Father addressed (a) when he first considered the affidavit and later Report of Ms A, and how long had he taken to read it (he said that the ICL had indicated the general direction and contents of the “second Ms A Report” in a telephone conversation prior to meeting with the children; he said he read it for approximately 45 minutes), and (b) whether he had communicated to the ICL any change of view regarding the Mother’s return to (country omitted) (he confirmed that he had not).[78]
[78] T 153 – 155.
There was further questioning of the provenance of Ms A’s [second] Report and her oral evidence including the lack of complete certitude that a return to (country omitted) would inevitably lead to an improvement in the Mother’s mental health. And there remain risks of the Mother having a relapse.[79]
[79] T 155.
Mr H noted that his understanding of the risks to the Mother’s mental health had changed in the light of the more recent Report of Ms A (which he had recommended in the Family Report (at par.106)). There followed a detailed, sometime vigorous, exchange, thus:[80]
[80] T 155 – 157.
The – the basis of my recommendation would be that she has used, as you said, a – a multifaceted approached to – to deal with her mental health: we’ve used medication, CBT, behavioural activations, engaging more in social active pursuits and things. And having used all of those evidence-based ‑ ‑ ‑ methods for dealing with depression, there remains this issue. As Ms A notes, social support buffers the impact of depression and it may well be something that will lead to a continued improvement in managing that – that mental health issue if she were to relocate. So my – my basis for changing my recommendation was that she had not yet exhausted all of the available evidence-based interventions when I met them last year.
However, you accept, don’t you, that Ms A concludes in her most recent report that the mother has a positive – has had a positive response to treatment?‑‑‑Yes.
You accept, don’t you, that Ms A records that the mother has established social connections?‑‑‑Yes.
You accept, don’t you, that Ms A reports that the mother now engages in social activities on average three times a week?‑‑‑Yes.
You accept, don’t you, that Ms A records that the mother has undertaken DIY projects around the home and started to cook more often?‑‑‑Yes.
You accept, don’t you, that Ms A records that the mother has started to drive independently?‑‑‑Yes.
It is of significance, isn’t it, that the one thing that actually remains is the mother still wants to move?‑‑‑And she has got a diagnosis of persistent depressive disorder.
…
That she suffers from a treated mild depression?‑‑‑Mild depression in this sense might mean something different to what your understanding of it is.
Ms A indicated that she was no worse off than any other person in the community – mother, father – parenting children with a mild treated depression. That’s the oral evidence that she gave. That is something which is weighed against the possibility that relocation makes no difference at all to the diagnosis, isn’t it?‑‑‑That is a chance.
Well, if his Honour finds that she was depressed in (country omitted) whilst living with her parents in 2003, you couldn’t necessarily confidently conclude that the presence of her parents is the key to the depression lifting, could you?‑‑‑No.
Sometimes people just really want what they want, don’t they?‑‑‑Yes.
And so it’s entirely possible that what we here is a parent with a diagnosis who says the solution to my problems is X but it’s very difficult to necessarily conclude that that is the solution to her problems, isn’t it?‑‑‑Yes.
But in changing your recommendation, given how different the children’s lives will be if the court does what you’ve now recommended, you’ve hung your hat on it being the solution to her problems, haven’t you?‑‑‑Yes.
You ‑ ‑ ‑?‑‑‑Well, it’s a – it’s a recommendation. It’s not a prediction.
But you said to the court that it was your view that significant regular time with the father would help to limit any negative impact from the mother’s depression and anxiety?‑‑‑It will but they still need a certain amount of care from their mother and if their mother is experiencing symptoms of depression, that limits her responsivity. So to a degree the father can buffer that effect but it does not protect completely from the impact of depressive symptoms.
But, of course, you remove the possibility for him to in any way mitigate those symptoms in (country omitted) because he’s not there; agreed?‑‑‑Yes.
And so you’re not resiling from the suggestion that significant regular time with the father can limit any negative impact from the mother’s depression and anxiety, are you?‑‑‑No.
It’s very important for these two children, isn’t it?‑‑‑Yes.
And in addition to that, you expressed the view that it was not clear that a relocation to (country omitted) would be sufficient to prevent the mother from experiencing an episode of depression that would impact on her ability to care for the children and in that event the father is not going to be there to provide care. You don’t resile from that, do you?‑‑‑Not completely but I do feel that given that other approaches have been explored for addressing her mental health, then that lends some weight to the likelihood that it may.
In the light of these statements of general principle, I turn to the so-called legislative scaffold in Part VII of the Act. Unless otherwise specified, I should be taken to follow sequentially the order of considerations in s.60CC(3), noting also the proper import of the primary considerations in s.60CC(2). These things said, I deal only with those statutory considerations that are, in my view, directly relevant to the matter and issues currently before the Court. Also in what follows, unless otherwise stated, the conclusions made should be taken as formal findings of the Court.
For the purposes of ss.60B(1)(a) and (c) and 60B(2)(a), (b) and (c), and s.60CC(2)(a), and as remarked many times in the course of the evidence, the submissions and these reasons, the children enjoy and have a close and meaningful relationship with both parents.
In relation to the same sections of the Act, nor is it disputed that both parents have engaged and co-operated with each other, and been actively part of the children’s lives – in all relevant respects, including school, noting again that since birth the Mother has been the children’s primary carer.
There are no relevant “risk” factors or considerations in terms of family violence and the like. To the contrary, as noted during the trial and in submissions, unlike almost all other parenting cases, the parents here are to be commended in almost every respect for their co-operative parenting relationship, including the promotion and fostering of the other parent’s relationship with the children. For both of them, the children take priority.
There are no relevant “views” of the children, save to note that they declined to give any specific view to the Family Consultant shortly before the trial, saying only that they would leave the decision, about the Mother’s relocation and related matters, to someone else. To the degree that the Court can take anything from such a “non view”, it may reasonably be that the children either did not wish to take the side of either parent, and or that they were equally secure in the relationship with both parents.
Because it is not “in contest” between the parties, for the purposes of s.60CC(3)(b) and (c), I have no difficulty making relevant findings that the children have a good and close relationship with both parents, and certainly with those members of the Father’s family referred to (Grandmother and cousins). To a very significant degree, this is obviously because they have lived in relatively close proximity to these members of the Father’s family.
There is no reason, on the evidence, to make anything other than an observation that on the number of occasions in relatively recent times that the children have visited the Mother’s family in (country omitted) they have enjoyed their time and association there.
I do little more than muse, or raise for general consideration, that little or no argument or submission was put, other than by implication, that the children should have the same or similar opportunity to build close relationships with members of their Mother’s family in a way similar to the close relationships that they have with members of the Father’s family. And in a similar vein, nothing was argued to the effect that to prevent the Mother from returning to (country omitted) would in fact deprive the children of this opportunity to forge close relationships with the Mother’s side of the family.
There is no question, as already noted, that the parents have participated in relevant decision-making in relation to the children, and similarly spent time with them whenever possible, and similarly communicated with them. Nor, for the purposes of s.60CC(3)(ca), is there any question about the parents fulfilling (or rather, failing to do so) their obligations to maintain and look after the children. Again, the parents have been next to exemplary in this regard. The same comments apply for the purposes of s.60CC(3)(i).
Counsel for both parties, but especially for the Father, would know well the famous, colourful and blunt description by Hayne J of “the killing ground” of a matter, meaning the area most central to its resolution.[91] In the current matter, “the killing ground” is centrally located in the “considerations” found in s.60CC(3)(d) and (e) – considerations of the “likely effect of any changes in the child’s circumstances” and “practical difficulty and expense.” These constitute, together with the Mother’s mental health and its likely or possible [negative] impact on the capacity to parent the children (s.60CC(3)(f)), the jurisprudential “killing field” to which Hayne J referred.
[91] See Pape v Commissioner of Taxation [2009] HCA Trans 60 (31st March 2009). The same term was used by French CJ, referring to the earlier description of Hayne J, in International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) & Ors [2012] HCA Trans 146 (20th June 2012).
Summarily, the evidence indicates that in relation to the likely and more prominent [negative and positive] effects of a relocation upon the children and their circumstances will be: (a) an obvious difference in the time they will be able to spend with the Father (and other members of the Father’s extended family; but the benefit of forging new and deeper relationships with members of the Mother’s family which has not been possible to date); (b) equally a change and adjustment in leaving current friends (but the corresponding benefit of making new friends); (c) the adjustment to living in a new country (accepting that they have spent reasonable periods of time in (country omitted)(country omitted)) and starting at a new school. Subject to what is stated shortly, I accept that there is an obvious difference between spending time face to face with a parent and doing so via some electronic platform, such as Skype. That said, electronic platforms of this kind are of significant assistance.
Also summarily, the cost and expense (as well as matters of logistics generally) in travelling between (country omitted) and Australia are significant. They cannot be under-estimated. Both parents gave evidence in relation to these matters, such as the Father saying that saving [for travel costs] would be a priority if the Mother was permitted to move to (country omitted)(country omitted), while the Mother said that she would provide accommodation and a car for the Father whenever he visited the children. She also said that her parents would assist financially with the cost of flights.
However, in relation to the matters just canvassed in the previous two paragraphs, it is important to recall that while the Father stated clearly that he does not intend moving back to (country omitted)(country omitted), when pressed, he said that if the children pressed him, he might re-consider his position. It is also important to recall the Mother’s various offers, which I take to be genuine, to provide assistance (e.g. accommodation for the Father when he visits (country omitted)(country omitted)). Other matters that would be more of an impediment to others do not apply to the Father because (a) he has some family in (country omitted) and in the area to which the Mother seeks to return; (b) he has a (country omitted) passport; and (c) he has lived and worked in (country omitted) previously.
The Father also said, which I accept, that he would take every opportunity to visit and spend time with the children if they returned to (country omitted) with their Mother. He also said that he would make a priority his saving schedule to ensure, as far as possible, that he had sufficient funds to make trips to (country omitted) to visit the children as often as he could. I accept his further evidence that there is likely to be some logistical and other issues in relation to when and how he could manage sufficient leave from his job to make various visits and the length of any possible stay in (country omitted) with the children. In this regard, I also accept the Mother’s evidence that all visits between the Father and the children did not have to be in (country omitted)(country omitted). She said that, especially with the financial assistance of her parents, she would be more than content to bring the children to Australia for one of the visits with the Father during the year.
And so we come to the issue of the Mother’s mental health. As earlier noted from Taylor v Barker, in finely balanced matters of which this is a classic example, often one factor will be decisive. In this matter, the decisive issue, in my view, clearly is the Mother’s mental health, which has been an “issue” for her (and relevantly for the Father since early in the relationship) since 1999.
I accept that thus far she has generally been able to shield the children from her ongoing issues in this regard, noting that more recently there have been behavioural issues in her household, particularly with [Y]. Crucially, on the evidence of Ms A, the Mother has tried earnestly a range of treatments to assist her to deal with her sense of isolation and mental health issues identified in Ms A's Reports. She has made some gains. Nonetheless, in my view, of particular significance is Ms A’s clear evidence (accepted by the Family Consultant) that the Mother’s mental health has deteriorated such that she has moved, clinically, from a diagnosis of “adjustment disorder with anxiety” to “persistent depressive disorder.” And this is after her consistent treatment with and assistance from Ms A.
Accepting that absolute certainty in a science such as psychology is necessarily more of an ideal than a day to day reality, nonetheless the Court has before it cogent expert evidence of (a) the deterioration in the Mother’s mental health, (b) the risk of greater or further deterioration should the Mother be required to remain in Australia with the children, and (c) an opinion that the mental health of the Mother is likely to improve if she is permitted to return to (country omitted) with the children. Because of earlier episodes, there remains a risk of further episodes of depression. As stated earlier, I accept the evidence of Ms A in this regard and otherwise. I also accept the evidence of the Family Consultant, Mr H, including his later and revised view that is in favour of the Mother and the children being able to return to (country omitted)(country omitted).
The evidence of Ms A and Mr H supports a finding that the risk to the Mother’s mental health is more likely than not to impact negatively on her capacity to care for the children. Accordingly it is in their best interests that the Mother (with the children) are permitted to return to (country omitted) where the Mother’s family reside and who will, in all likelihood, be able to provide the important emotional (and psychological) support that the Father readily has because his family surrounds him in Australia but which the Mother has not had for quite some time. Among other things, it will be recalled that the Father confirmed that the Mother telephoned her family in (country omitted) multiple times every week.
The only further matter, which may properly be considered under s.60CC(3) (m), relates to the ICL’s submission to the effect that these children have had not insignificant exposure to international travel. They are also plainly aware that they have part of their family on the other side of the world. While not decisive, it is in my view, a not unimportant matter to consider, especially in relation to the children’s awareness and likely earlier adaptability to new surrounds in (country omitted) and having family back in Australia.
[Further] Consideration & Disposition
First, for convenience, I record again (noted at the outset of these reasons) the comments of the Full Court in Taylor v Barker at [109] (emphasis added):
… this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. … it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate …
Secondly, at [109] in Taylor v Barker, the Court detailed the reasons why “happiness” and “contentment” were signal factors and which, in that case, could be “inferred” from the evidence.
In the current matter, no “inference” is required in the light of the detailed evidence from the experts, Ms A and Mr H, as well as the Mother.
As I have stated often in these reasons, this matter is similarly “difficult and finely balanced.” However, the critical and decisive factor is the Mother’s clear and consistent evidence in relation to her depression and mental health, the risk of it worsening, and her reasonable belief and expectation that it will be ameliorated by a return to her native (country omitted), and more particularly to the village and environs she knows well, and where her family live.
The Mother’s evidence in this regard is well supported by the expert evidence of Ms A and Mr H.
Accepting the necessary and obvious factual differences between this matter and the facts in Hutcheson & Meli, in my view, that decision of the Full Court further supports the Court’s assessment in the current proceeding of (a) the expert evidence, (b) the Mother’s evidence, and (c) the conclusion that it is in the best interests of the children that the Mother be permitted to return to (country omitted) with them. There was no challenge to the Mother having been, and currently being, the children’s primary carer, accepting that the Father sought to have his time with them increased if they remained in Australia.
I prefer and accept the further/supplementary submission of the Mother in relation to the relevance and applicability of Hutcheson & Meli to the current matter before this Court.
In B and B, Warnick J (sitting as the Full Court) said, at [1]: [92]
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are [sic] the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases.” That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[92] B and B [2006] FamCA 1207. Cf.AMS v AIF (1999) 199 CLR 160 at p.207 [142], Kirby J said: “…the facts of each case are unique. Those facts call forth a “careful and delicate analysis.”” (Internal references have been omitted.)
Respectfully, I readily accept and adopt his Honour’s carefully phrased and nuanced description. They resonate with the equally careful, common sense and utterly humane observations of Hayne J in AMS v AIF at [204] and [205] (internal citations omitted):
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order – usually an order that says yes or no to some application. “[A] complicated mass of human experience has to be reduced to the simplest possible terms.” Because the problems are human problems, because they are as varied and complicated as they are, the legislation speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in the future but also of what will be “best” for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
These descriptions well capture the “imbroglio of principles” and the “chaotic complexity of real life” that are on display in the current matter.
It is important also to note some comments from two earlier decisions that have involved “relocation”. Curiously, perhaps, no one referred to the following decisions in their submissions or otherwise.
In M v S, Dessau J said, at [45]:[93]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful.
[93] M v S (2008) 37 Fam LR 32.
M v S was a case that also involved a proposed relocation to (country omitted)(country omitted). At [17], [19], [36] and [37], her Honour considered the operation of s.65DAA of the Act. She observed, at [37], with obvious agreement with the submissions presented to her:
Counsel for both parties in this case agree that whether O lives in Melbourne or (country omitted)(country omitted), neither the concept of equal time nor substantial and significant time is a reasonably practicable outcome …
In such circumstances, in accordance with the comments of the Full Court in Goode v Goode (at [65]), the issue of “time with” arrangements is “at large” and is to be determined by reference to the “considerations” in Part VII of the Act.[94] The same comments apply here regarding whether an equal time arrangement or substantial and significant time, in accordance with s.65DAA, is apposite. The simple reality is that the “tyranny of distance” makes such matters irrelevant or totally impractical – unless the Father (as noted by the ICL) also moves to (country omitted)(country omitted). Then those considerations relevantly return.
[94] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422.
Finally, it is very important to recall the comments of Kay J (sitting as the Full Court) in Godfrey & Sanders, at [36] (emphasis added):[95]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[95] Godfrey & Sanders [2007] FamCA 102.
His Honour’s comments have since been applied in a number of later decisions, including the Full Court judgments in McCall v Clark and Sigley v Evor.[96] In the latter case, the Full Court said, at [182] (emphasis added):
It was submitted to us on behalf of the Mother, which we accept, that the court expert made clear that ideally the child should be seeing the Father more often that he had in the past. However, the child has a meaningful relationship with the Father already and in circumstances where there were other considerations that had to be taken into account it has to be remembered that a meaningful relationship does not mean an optimal relationship: (see Kay J in Godfrey & Sanders at 33 and 36).
[96] McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439.
In my view, much of the Father’s argument, which I do not criticise at all, seemed very heavily predicated upon the maintenance of an “optimal relationship” in circumstances where there was no doubt that he has always had a very meaningful relationship with the children, and that a return to (country omitted) by the Mother was not going to jeopardise the nature of the relationship. It would remain meaningful.
For the reasons given, in my view the Orders sought by the ICL, with some slight adjustment for matters such as birthdays and the like) which are supported by the Mother, are in the children’s best interests. I should also be taken to accept the Mother’s and the ICL’s submissions in preference to those on behalf of the Father. The Orders of the ICL as adjusted, should be, and will be made.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 26 July 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Expert Evidence
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Appeal
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