PARKER & PARKER
[2017] FCCA 1455
•30 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARKER & PARKER | [2017] FCCA 1455 |
| Catchwords: FAMILY LAW – Parenting – relocation principles – separation of siblings – child’s views – capacity of parents. |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: AMS & AIF (1999) CLR 160 Taylor & Barker [2007] FLC 93-343 Journal of Divorce and Remarriage (Vol 16) (1991) - ``Issues of Split Custody; Siblings Separated by Divorce", by Kaplan, Ade-Ritter and Hennon |
| Applicant: | MR PARKER |
| Respondent: | MS PARKER |
| File Number: | LNC 84 of 2017 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 22, 23, & 29 June 2017 |
| Date of Last Submission: | 30 June 2017 |
| Delivered at: | Launceston |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Higgins |
| Solicitors for the Applicant: | Bishops |
| Counsel for the Respondent: | Mr M Turnbull |
| Solicitors for the Respondent: | Rae & Partners |
ORDERS
That the mother and father have shared parental responsibility for the child X born (omitted) 2009 (“X”).
That X live with the father.
That X spend time and communicate with the mother and the father as follows:
(a)With the mother each alternate weekend from Friday at 6.30 p.m. until Sunday at 4.30 p.m. but such times to be suspended during school holidays;
(b)Over the Christmas school holiday period commencing in 2017 and each alternate year thereafter:
(i)With the father from Christmas Eve until 26 December;
(ii)With the mother from 26 December until 1 January;
(iii)With the mother for an additional period of seven (7) consecutive days with the mother to provide the father with three (3) months’ notice of the proposed dates; and
(iv)With the father for the balance of that school holiday period.
(c)Over the Christmas school holiday period commencing in 2018 and each alternate year thereafter:
(i)With the mother from 24 December until 1 January;
(ii)With the mother for an additional period of seven (7) consecutive days with the mother to provide the father with three (3) months’ notice of the proposed dates; and
(iii)With the father for the balance of that school holiday period.
(d)With each parent for one half of all school term school holiday periods with the mother’s half of the holiday period to commence on the Friday that the child would otherwise enter her care.
In 2018 and each alternate year thereafter with the mother from Thursday prior to Easter Sunday until the following Tuesday.
In 2019 and each alternate year thereafter with the father from the Thursday prior to Easter Sunday until the following Tuesday.
That in the event that the child is not otherwise in the care of the mother on Mother’s Day the child will spend time with the mother from the Friday prior to Mother’s Day until 6.30 p.m. on Mother’s Day.
That in the event that the child is not otherwise in the care of the father on Father’s Day the child will spend time with the father from the Friday prior to Father’s Day until 6.30 p.m. on Father’s Day.
That changeover occur at the (omitted) store in (omitted) at 6.30 p.m. unless otherwise specified in these Orders and unless otherwise agreed.
Such other times or variations of the above as agreed between the parents from time to time.
IT IS NOTED that publication of this judgment under the pseudonym Parker & Parker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 84 of 2017
| MR PARKER |
Applicant
And
| MS PARKER |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the parties’ daughter, X born (omitted) 2008 (“X”).
The father is the applicant by an initiating application filed 13 March 2017. He proposes that X live with him in northern Tasmania at (omitted). He offers generous school holiday time for X with the mother as well as time on each second weekend. He proposes an order for equal shared parental responsibility.
The mother seeks ‘mirror’ orders to those proposed by the father. She asks for an order that X live with her at (omitted) in southern Tasmania but also offers generous time-with for X with the father.
This is what is colloquially known as a 'relocation' case. It is generally agreed that the mother withheld X at the end of an agreed period of time in the most recent 2016/2017 summer school holidays. The mother unilaterally enrolled X at (omitted)’s girl’s school in Hobart.
The father sought an interim hearing and the return of X to his care. That application was listed before me on 19 May 2017. After discussion with Counsel, and given the nature of the application, it was agreed that the father would not pursue his interim application on the basis of the substantive application being brought on for an expedited hearing in the nature of the pilot 'relocation list' which operated so successfully in the Melbourne Registry of this Court 2014 and 2015. As such, the matter was allocated a trial with priority to commence in the sittings of the Court on Monday, 19 June 2017.
An order was made for a short-form family report to be prepared pursuant to section 11F of the Family Law Act 1975 (“the Act”). That report was prepared by family consultant, Ms S, and after interviews conducted on 6 June 2017 with both the parents, X and the mother’s older daughter Y.
Background
The father lives at (omitted) in northern Tasmania. He is a (occupation omitted) by trade. His employment was interrupted by a serious heart condition requiring surgery in mid 2016. He has apparently received the benefit of some disability insurance and is otherwise occupied only for a few hours a day in the (employment omitted).
The father has re-partnered with Ms J. She currently lives in (omitted). Ms J has three children aged 12, 9 and 3 years. Mr Parker and Ms J both state they are in a committed relationship and intend to live together.
The mother is a (occupation omitted). She lives in rented accommodation at (omitted). There is no evidence that she is currently re-partnered. The mother did, however, re-partner in early 2016. That woman apparently lived in the greater Hobart area. Ms Parker moved to Hobart in about June 2016 to take up residence with her partner. Her relationship with that woman broke down in about January 2017.
The parties commenced cohabitation in 2007 and were married on (omitted) 2011. They separated on 23 November 2015. They lived generally in northern Tasmania and apparently in the (omitted) area.
X attended the (omitted) Primary School in Launceston.
The mother has an older daughter being Y born (omitted) 2002 (aged 15 years). Y lived in the family unit and for all intents and purposes treated Mr Parker as her father and referred to him as such.
After separation in November 2015 the mother and the children remained living in the family home. Both Y and X spent time with the father at least each second weekend.
In about June 2016 the mother secured employment with the (employer omitted) in Hobart and moved to Hobart to take up residence with her romantic partner.
The father moved back into the family home. The parties agreed that both X and Y would remain living with the father in northern Tasmania but, according to the mother, subject to review after six months.
About a week after the mother had moved to Hobart, the father suffered his heart condition and underwent surgery. X and Y moved to southern Tasmania to live with the mother for approximately 2 weeks. In late June 2016 they returned to northern Tasmania to live with the father who was assisted by the paternal grandmother in caring for the children. The children, Y and X, commenced spending each second weekend and half school holidays with the mother in southern Tasmania.
In late December 2016, Mr Parker advised Ms Parker that Y preferred to live with the mother and there followed discussion as to the difficulty in separating the siblings.
On 31 December 2016 the mother told the father that she will not be returning X to northern Tasmania 'until and unless issues are addressed'.
It is apparent that that the communication between the parents broke down substantially in 2016 and became virtually non-existent from January 2017 until this application was bought before the Court.
As mentioned above, the application was listed for a first mention on 19 May 2017 and the father anticipated an interim hearing on that day hoping to return X to his care in northern Tasmania. The parties agreed to forgo the interim hearing in favour of an expedited trial.
Both parties are represented by solicitors and Counsel at the trial.
The Father's Case
The father argues that X expresses a strong, consistent and informed view that she wishes to live with him in northern Tasmania. He says that his capacity to care for X is unimpeached by reason of the mother delegating that responsibility to him (together with Y) in June 2016. In any event, he says that he is able to care for X and is not compromised by his health concerns. He says he will have the benefit of the assistance of Ms J and that X will enjoy being a part of a family unit involving Ms J and her three children.
The father says that both Y and X understand the nature of them being potentially separated but that they have such a relationship which can endure that separation and will, in any event, spend substantial time together.
The father says that X’s wishes are grounded on her preferring to live with him, missing her school and school friends, and missing the lifestyle that she had previously enjoyed in northern Tasmania.
The Mother’s Case
The mother argues that it would be contrary to the interests of both X and Y to separate them as they are a close and dependent unit.
The mother says that X’s wishes are influenced by her immature desire to take on the responsibility for the care of her father's health.
The mother says that she harboured concerns as to the father's care of both Y and X during the latter half of 2016. She says that X was sharing a bed with the father. She says that X’s dental health was not attended to. She says that X was gaining weight. She says that X’s behaviour at school deteriorated. She says that the breakdown of Y's relationship with the father is indicative of his lack of capacity. She also argues that his health detracts from his capacity to care for a young child.
The mother has arranged counselling for X at both her school and privately and says that whilst X still exhibits some behavioural problems, they will settle in time and that she has otherwise settled socially and academically at (omitted) College.
The Evidence
The father relied on his affidavit affirmed 7 June 2017. He presented as an honest, candid and child focused witness. He was able to make admissions against interest and to appropriately compliment the mother personally and on her parenting of the children. I observed the father to be a simple man and easily able to tell the truth. His evidence was factually sound and consistent. Whilst he was generally able to be objective in respect of X’s best interests, understandably he at times exposed his personal emotions. When asked on one occasion why X should live with him in (omitted), he responded:
… Because she is my only child and I want to be there for her. It’s hard, your honour, and I go home and she is not there.
At other times the father displayed some surprising insight and objectivity. When confronted with the possibility that X would be required to blend into a household of four children and two adults if she were to live with the father he responded with:
If she came into a household with three other children then she might be able to become a child again herself.
Ms J gave evidence and was cross-examined. Her affidavit was sworn 7 June 2017. Ms J showed herself to be committed to the relationship with the father. She presented as a capable and altruistic parent. In cross-examination, she was able to recognise the potential difficulties of the proposed blended family. My assessment, however, is that she would be an able and empathetic female role model in that home.
The father adduced evidence from Dr K who is the cardiothoracic surgeon at the (omitted) Hospital. Dr K report is dated 13 June 2017 and was taken into evidence. Dr K report observes inter alia:
Mr Parker does have a condition which is a Chronic Type B Dissection involving his native Aorta and also major branches supplying the Lower Limbs
Due to the nature of the Chronic Type B Dissection of the residual native aorta, he should avoid manoeuvres which can increase his BP suddenly even if for a brief period, as it does increase the risk of sudden rupture of the weakened Aorta or result in enlargement of the Aorta which can eventually lead to increased risk of rupture. Activity such as lifting heavy objects, pushing against heavy objects are likely to cause the undesired effect.
As long as there is no need for activities as mentioned above there are no restrictions upon him on the role of primary carer for a child.
Dr K was cross-examined by telephone. He essentially confirmed the contents of his report provided under affidavit of 22 June 2017.
The Mother
I observed the mother also to be a good and honest witness. Nevertheless, her evidence was more equivocal and selective than that of the father. I expect, understandably, that the mother’s own life has been tumultuous in the last year and a half. She separated from the father. She commenced a relationship with a woman from Hobart. She moved to Hobart whilst voluntarily leaving her two children in northern Tasmania. She commenced new employment with the (employer omitted). Her relationship with her romantic partner broke down. She has been required to obtain rental accommodation for herself and girls. She has been dealing with the financial implications of the relationship breakdown. Against this background, I observed the mother to struggle with the reconciling of her daughters’ best interests and her own desires and ambitions to re-establish a family unit with those children. Nevertheless, I have no doubt as to the mother’s love for her daughters and her maternal instincts and expect that these were tested and accentuated by the choices she made during 2016.
The mother, not surprisingly, was keen to emphasise that there had been a communication breakdown between she and the father and attempted to attribute as much blame as possible in this respect to the father.
Also understandably, the mother was at pains appease the Court and at times this caused a sense of contradiction in her evidence. Notably, she volunteered on a number of occasions that she ‘might return to northern Tasmania' but was unable to commit or even put a time frame on such a move.
Overall, I detected a sense of continuing turmoil in the mother’s own life and ambitions. She was, however, an honest and candid witness also able to make admissions against interest and notably in respect of X’s poor behaviour in her home.
Dr A
The mother adduced evidence from Dr A whose affidavit was sworn 23 June 2017 and annexes a report dated 21 June 2017. Dr A is a clinical psychologist. She had seen X on three occasions prior to the preparation of report. Dr A gave evidence by video and was cross-examined.
Dr A took the family and X’s history from the mother at the first consultation. She also spoke with the father by telephone on 14 June 2017.
I found Dr A to be an impressive and informed witness. Her evidence was directed to the peculiarities of X and not contaminated by social theory cliché. Dr A had the benefit of her clinical assessment behaviour forms prepared by X’s school. She had a similar document prepared by the mother. Her report, as with her evidence, appears to be prepared comprehensively and with care.
Dr A recognises adjustment difficulties for X and notes the parents’ separation in 2015, the mother’s relocation to Hobart in June 2016, her father’s coronary episode, and the unilateral retention of X in late December 2016, together with the commencement of a new school and a time of not seeing her father in the early 2017.
In the report at page 3 Dr A observes:
X’s prognosis is dependent not simply in the provision of a stable and predictable home life. Her anxiety and other adjustment difficulties relate to her father's health and a misplaced sense of responsibility that she should be close to him and care for him. I believe X’s stated wish to live with her father is bound up in multiple losses, i.e., her father, dogs, school, friends, horses, and lifestyle/environment in northern Tasmania. Whilst X has settled into her new home, school, and friendships in Hobart, her heart is in Launceston.
In cross-examination, however, Dr A admitted that her notes prepared at the interviews with X and now exhibited in these proceedings, do not expose X’s preferences to be referenced on any desire to 'care for her father'. Dr A also conceded that there is nothing unusual for a child to have concerns as to a parent’s health and the fact of concern is not synonymous with hierarchical confusion as to assuming a carer role for her father.
In her evidence in Court, Dr A stated that X is “still grieving for her life in Launceston” but said also that if X was required by Court order to live with her mother in (omitted) then “this wouldn't be her first choice but she would manage.”
Clinically, Dr A noted X to be:
…all clinical and adaptive scale and cluster scores were in the normal range accept Anxiety, Depression and Internalising Behaviours which placed X in the mild clinical risk stage.
Dr A was understandably wary of X thinking that she should take on a carer role for her father and observed on page 4:
Significant adults in X’s life should encourage her to be a child and shield her from adult matters, discussions, and responsibilities. Ms Parker and Mr Parker have to work cooperatively to co-parent X whatever the Court’s decision. X knows she is loved and wanted by both parents. She has a secured attachment with both parents but has expresses (sic) a closer attachment with her father, I believe it is based on part on anxiety / over concerned and/or her perception of her father’s needs.
Finally, in respect of X’s preferences which are unambiguously are to live in Launceston, Dr A opines:
The guiding focus in this matter is the needs of the child, even above the rights or wishes of the child. This is because X is only 9 years old and below the level of maturation/experience/critical reasoning necessary to make a residency decision. It is difficult for X to accept that adults will be making this decision on her behalf: I respect her right to state her wishes/preference. The key aspect is that X has a chance to be a child and not a carer or co-carer. X recognises that her father will never have the robust health he once had, his health may be variable, and that there are things he is unable to do.
Family report – Ms S
Ms S interviewed both parents together with X and Y. She made observations of the children and each parent together. Ms S was cross-examined by Counsel for each parent.
On page 3 of her report, Ms S highlights the following:
X stated a firm desire to return immediately to live with her father. She stated that she has significantly missed him, relates better with her father than with her mother, that she likes doing outside activities with her father “he has more money and can afford to go on trips” with her. She said “I really want to live with him.”
Significantly the mother reported to Ms S that she herself is prepared to look at returning to live in Launceston after she has established herself in her current employment. She said that there is a prospect of working in another (employer omitted) once she has worked for 12 months in her current position. I note that the mother commenced work with the (employer omitted) in Hobart in June 2016.
Ms S explored the relationship between X and Y and with the possibility of the children being separated. She reports on page 3:
Both X and Y stated that they would not miss living with each other. They both indicated they have a ‘love/hate’ relationship.
Ms S expanded on this issue during cross-examination. She described Y as having a “nothing” role with X and it seems that this sibling relationship is perhaps stronger than on first reading of Ms S’s report. However, when then challenged as to a likely negative impact for both girls on being separated, Ms S opined that living apart might in fact benefit or strengthen a relationship that is currently conflicted and probably due to X’s poor behaviour in her mother’s household.
As the Court is mandated to do in such matters, Ms S, helpfully isolated the advantages and disadvantages of each parents proposal as follows:
Advantages for X remain in the mother’s care:
·X will live with her mother for her pre-puberty/puberty years.
·X will live with her only sibling and therefore have the advantages of developing a significant relationship that may exist on and into adulthood. This also gives X the opportunity to learn to share and adjust to the give and take of a sibling relationship.
·X will not have to adjust to the inclusion of another family into her life and primary living arrangements.
·Her mother stated an intention (and has historically demonstrated a commitment) to X maintaining significant and meaningful time with her father. This includes weekly telephone and majority school holiday time.
·The mother indicated a willingness to consider relocating back to Launceston to provide X with more time with her father. The mother also indicated that she would consider X living primarily with her father once X commenced high school.
Advantages for X to live in her father’s primary care:
·X will be doing what she states she wants to do.
·X will be returning to live in the area, (omitted), she has always lived.
·Returning to the school she has always attended and to her known friendship groups.
·The father stated an intention, and has historically demonstrated a commitment to X maintaining significant and meaningful time with her mother. This would also now include meaningful time with Y.
Ms S recognised that the “knowns” for X are in her mother’s home in Hobart whilst the potential return for X to Launceston essentially presents “unknowns” but if pressed then she might favour X remaining in Hobart but whilst also agreeing that the current “known” in Hobart are problematic for X.
Relevant Law
It is important to emphasise that the jurisdiction of this Court deriving from the Act is first and foremost in respect of children. That is, s.60CA of the Act stipulates that the Court must have the child’s best interests as its paramount consideration. Consequently, whilst the Court can allow or prevent the relocation of the child as part of a parenting order, it cannot usually, per se, prevent the freedom of movement of an adult. Such has been recognised by the High Court in AMS & AIF[1] which obliges trial judges to consider the ‘right of freedom of movement’ of an adult but subject always to the best interests of the child. The Act itself is silent as to the notation of relocation. It follows that relocation is neither expressly prohibited at law nor is there a presumption against it. That is, a proposal by a parent to relocate a child is simply one factor to be considered among numerous others in arriving at orders which, on the balance of the probative evidence and the parties’ proposals, are in the best interests of the child.
[1] (1999) CLR 160
Following the significant amendments to the Act in 2006, the Full Court in Taylor & Barker[2] confirmed the prior authority of Paskandy & Paskandy[3] that there can be no dissection of a parenting matter into discrete issues of firstly, who the child shall live with and then a further and separate issue as to whether relocation should be ‘permitted’. That is, a party’s proposal to relocate a child or not is simply a matter to be considered overall in the greater determination as to a child’s best interests. The Court in Taylor & Barker (supra) observed:
In our view, His Honour dealt with the relocation proposed in the context of his considerations of s.60CC and s.65DAA, at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to the s.60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s.65DAA.
[2] [2007] FLC 93-343
[3] (1999) FLC 92-878
The peculiarities in matters involving the potential relocation of a child have more recently been considered in the High Court in MRR & GR[4] where the Court emphasised the dual requirements of the Act in that parenting orders must be both in a child’s best interests and are reasonably practicable.
[4] [2010] 240 CLR 461
Such considerations are crucial where trial judges are legislatively mandated, upon the finding of equal shared parental responsibility in parents, to follow a statutory and intellectual course of consideration, including firstly, whether the child spending equal time between the parents is both in the child’s best interests and reasonably practicable, and, if the answer to either question is in the negative, then whether the child spending ‘substantial and significant time’ between the parents is both in the child’s best interests and reasonably practicable.
The notation of ‘substantial and significant time’ involves a child spending time with a parent on both weekends and week days and time that allows the child and the parent to be mutually involved in each other’s activities and interests. Clearly, considerations of both equal time and ‘substantial and significant time’ are not available to a Court dealing with a proposed relocation of the child where each of the parents remains steadfast in living in a different location.
Significantly the High Court in MRR & GR (supra) observed at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s.65DAA(1) (Parental Responsibility) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both the parents remained in (the same location), (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
Put simply, the mother in this case, despite her equivocation, intends to remain in southern Tasmania at least in the short term whereas the father intends to remain living in northern Tasmania. Consequently it is inevitable that X will live primarily with one of the parents and spend time with the other parent during weekends and school holidays.
An examination of relevant Full Court decisions since the important amendments since 2006 show, in my view, that historical principles extracted by superior courts in relation to matters involving the proposed relocation of a child remain valid. They can be summarised as follows:
·Relocation matters are to be determined generally with reference to Part VII of the Act;
·The child’s best interests remain the paramount but not the sole consideration;
·A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child’s best interests (s.60CC matters) and, where appropriate s.65DAA (reasonable practicability);
·The court must consider the parties’ proposals including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child;
·Neither party bears an onus to establish a relocation or a continuation of an existing regime would best promote the interests of a child;
·An applicant for relocation need not show ‘compelling reasons’ in support of the relocation but must give and adduce probative evidence that permits the court on balance to find that a parenting order involving a relocation of a child is in the best interests of that child; and
·The child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement but that such an adult ‘right’ must ultimately defer to the child’s best interests.
As mentioned above the starting point of a court’s consideration is the presumption at s.61DA of the Act that parents have equal shared parental responsibility for their children. Parental responsibility can be defined as all of the duties, powers, responsibilities and authority that parents hold in respect of their children at law. Such responsibilities are often manifested in the long term and important decisions for children in respect of matters such as education, religion, medical procedure and the like as opposed to the more mundane day-to-day decisions that parents make for their children.
Each of the parents here proposes an order for equal shared parental responsibility and, on the evidence before me, I can easily find that the presumption applies and is in the best interests of X.
The court must then turn to a consideration of what parenting orders and regime is, on balance, in the best of X and a regime that is ‘reasonably practicable.’
The legislative framework for determining X’s best interests is provided at s.60B of the Act by way of the objects and principles of the legislation in the following terms:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court is then obligated to reference each of the statutory considerations set out in ss.60CC(2) and (3) of the Act. They are divided into ‘primary’ and ‘additional’ considerations but without any hierarchy of importance and each to be more or less relevant in respect of the probative evidence and the proposals of each of the parties in a particular matter.
The section 60CC factors
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child's parents.
Both the parents together with both experts in this matter recognise an established attachment for X with each of her parents.
Both parents propose frequent and generous time for X with the other parent.
X is now 9 years of age. The indications are that she is relatively mature, articulate, able to assert her own views and preferences, and it is likely that her relationship with both her parents will endure in their strength and attachment regardless of whether she lives with the father or the mother.
Significantly the Full Court in McCall & Clark[5] has recognised and endorsed that the adjective ‘meaningful’ is to be considered in qualitative rather than quantitative terms where the enquiry for the court is a ‘prospective one’ into the future but obviously one that stems from a consideration of the current nature of the relationship between child and parent.
Section 60(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[5] (2009) FLC 93-405
Fortunately for X, matters of family of family violence do not feature in this matter.
Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
X consistently and unambiguously expresses a preference and desire to live in northern Tasmania and with her father. She is able to express her views to each of her parents. She has expressed her views to Dr A and to the family reporter, Ms S. Importantly, superior Courts have long emphasised that a child’s wishes, views, or preferences are not determinative of where they live and the nature of their relationships. Children’s views must be assessed as to their levels of maturity, rationality and voluntariness.
X is just 9 years of age and the report of Dr A suggests caution for a court in giving credence and weight to the views of one so young. Nevertheless, in cross examination Dr A agreed that her interviews with X exposed her preferences to be based on numerous factors and not on that feared by the mother and the experts in this matter being that X chooses to live with her father based only on a desire to ‘care for him’. Indeed, both Dr A and Ms S agree that X did not directly give this as a reason for her preference despite some intrusive questioning by each.
Significantly, in my view, X and Y have been able to reconcile their own relationship and the possibility of being separated. Such was recognised by Ms S that had the advantage of interviewing both girls and apparently seeing them together. There is, of course, an age difference between Y who is 15 years old and X is just 9. They have always lived together and a separation is something of an unknown. Nevertheless, the father proposes frequent contact including lengthy block periods in school holidays and also invites Y to spend time with he and X in northern Tasmania.
I must also consider the impact, if any, of making orders which are contrary to X’s expressed wishes. Her relationship with her mother is currently conflictual as it is with Y. The mother gives evidence of behavioural problems and ‘meltdowns’ for X. The school and Dr A recognise X to be anxious and unsettled and to understand that she was retained by her mother.[6] X’s wishes are firm, consistent and have continued despite now living with her mother since December 2016. As such, an order contrary to her preferences may negatively impact further on her relationship with the mother by a sense of blame and resentment of the mother. Such a response, however, may also be indicative of immaturity and/or irrationality in the child.
[6] see exhibit R1 - Dr A notes 8/5/17
It is notable, in my opinion, that when questioned as to her preferences X gave a broad range of reasons for her desire to live in northern Tasmania. She mentioned established friendships at school and socially (and despite apparently making friends at (omitted)’s). She mentions her lifestyle including her interest in animals. She mentions that she would like to pursue sporting or extra-curricular activities. She says that she feels closer to her father. Nevertheless, the experts have elicited, and X has stated, her views and preferences without factoring in the evidence now given by Mr Parker and Ms J that they intend to establish a blended family inclusive of Ms J’s three children at the end of this year. I must therefore consider X’s stated preferences having regard to this contingency.
Section 60CC(3)(b) - the nature of the relationship of the child with each of the child's parents and any other relative.
The evidence of the mother herself suggests a difficult relationship between she and X. The mother speaks of tantrums or ‘meltdowns’. The mother says that X has shown behavioural difficulties at (omitted) College. It is likely that X blames her mother for her not seeing her father between December 2016 and April 2017 and for being retained in Hobart against her wishes although the evidence does not satisfy me that the mother acted with any mala fides. In addition, both X and Y currently see their relationship as conflictual. Nevertheless, I must again look at the maturity of X who is described by Ms S as a child used to getting her own way and perhaps more so with the father than with the mother.
In her report Dr A opines that X has a secure attachment with both parents but ‘has expressed a close attachment with her father’. The evidence suggests a high degree of comfort and familiarity for X in her relationship with her father.
There is no evidence before me that X’s behavioural problems and ‘meltdowns’ occur in her father’s care or in Launceston. The evidence of Dr A suggest X’s anxieties are directed to living in Hobart and being away from Launceston and her father although the mother alleged behavioural difficulties in 2016.
However, the relationship between X and her father must also be considered as to whether X is indulged by the father and given relatively less discipline and order that in the mother’s home?
Section 60CC(c) - the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate and make decisions about major long-term issues in relation to the X or to spend time with the X or to communicate with the X or section 60CC(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain her.
The mother argues that the father would not communicate with her following her unilateral decision in December 2016 to retain X. The father brought his application on 14 March 2017 and it is safe to assume that he consulted lawyers prior to that time. My observations of the father suggest that he would tend towards being non-conflictual. I find no merit in this implied criticism but prefer that for a number of reasons the previous co-operative relationship between these otherwise good parents broke down in late 2016. This was more a factor of personality and circumstance rather than culpability.
The mother undoubtedly acted unilaterally in December 2016 in withholding X from an agreed period of time - with her. She said that she did so because of concerns as to the father’s care of X and that she required ‘issues’ to be dealt with before she would return X. The mother also, unilaterally enrolled X at (omitted) College in Hobart. She unilaterally took X to Dr A. Dr A’s notes clearly indicate that X herself understands that she was held over by her mother and it is trite to observe that parents acting unilaterally in respect of children often do so oblivious to the emotional impact on those children.
In all other respects, these parents have been responsible in their care and support of X and Y.
Section 60CC(3)(d) - the likely effect of any changes in X’s circumstances, and the likely effect on X of any separation from either of his or her parents or Y, or any other person whom she has been living.
[7] (1995) FLC 92-599
An obvious concern for the court is the separation of X from her sister Y on the father’s proposal. Nevertheless, it is clear that this relationship is an established one and to the stage where both girls indicate to the family reporter that their relationship could endure them living in different primary homes. However, it is generally understood that children glean support from each other when dealing with the breakdown of their parents’ relationship. It is arguable whether or not supportive relationship would be able to continue should X and Y be raised in different parts of Tasmania. Relevantly, Nicholson CJ in
H & H[7]considered the difficulties confronting courts where a separation of siblings is proposed by one of the parties. His Honour quoted extensively from an article published in the Journal of Divorce and Remarriage (Vol 16) (1991) - ``Issues of Split Custody; Siblings Separated by Divorce", by Kaplan, Ade-Ritter and Hennon. Given the nature of the dispute now before me, it is pertinent in my view, to transcribe for these reasons that part of the article relied on by his Honour and as follows:
Courts are often reluctant to separate siblings based upon the presumption that children benefit from growing up with brothers and sisters and should remain together (Elrod, 1985). Further, to separate them would mean that they would grow up as strangers and ``create a household divided against itself"… A marital break-up is a traumatic event to all members involved and is experienced by siblings individually, and also together as a unit. According to Nichols (1986), there are three conditions which permit formation of a sibling bond; high degree of physical and emotional access among siblings, need for meaningful personal identity, and shortage of parental influence. The most pertinent issue of the three in regards to split custody is that separating siblings after divorce will decrease their access to each other, thereby affecting a previously formed bond, or limiting the formation of a bond.
Further, during early childhood, children frequently spend more time interacting with their siblings than with their parents. The frequency of interaction with siblings does not diminish until emancipation in adolescence or early adulthood when the child leaves home (Waters, 1987). Therefore, sibling relationships constitute one of the more common interpersonal relationships among humans. Not only do siblings influence the development of each other's sociocognitive skills, but their relationship can be described as primarily a positive one, with high frequencies of altruistic, affectionate, co-operative (Foster, 1987) and concerned behaviour (Waters, 1987).
In times of divorce, the natural support system existent among siblings often strengthens as a way to convince the children that nothing catastrophic is going to happen and that they do, at least, have each other. Siblings not only cling together in hopes of hanging on to what they perceive to be stable and reassuring in a time of change (Nichols, 1986), but also draw strength from their own coalition, finding in each other comrades who help weather the difficult post-separation period (Eno, 1985). Further, there are important differences among siblings' reactions to parental divorce. Older siblings are better adjusted than younger siblings; older siblings have a better understanding of the divorce, fewer problematic beliefs regarding the divorce, a better understanding of conflict resolution, a more internal locus of control, and are less dependant on adults (Kurdek, 1988). Older siblings can often help younger siblings to accept the loss as inherent in divorce, as well as to make a more realistic assessment of what is occurring than the younger child can make alone (Nichols, 1986). Implications of these findings suggest the need to keep siblings together, especially for the benefit of providing role models (older siblings) to younger siblings.
The importance of continuity of an attachment relationship is another reason split custody occurs so rarely. Not only is it important to keep the parent/child relationship intact, but also it is necessary to stabilise other factors in the child's life. For this reason, split custody seems undesirable because it not only breaks the continuity of a relationship with an adult, but also breaks the continuity of relationship with a sibling (Maidment, 1984).
I am of the view that these observations remain as relevant in 2017 as they were in 1991. I must, however, also consider the current strength and nature of the relationship between X and Y where both speak of some conflict but where I can assume a highly established and secure relationship. I must also consider the responses of each of X and Y to the breakdown of the parent’s relationship. It is clear that Y has gravitated emotionally towards her mother but that X, despite an opportunity to settle in southern Tasmania, still grieves for her father and Launceston and consistently states a preference to return to him. A further change for X, of course, is that orders for acceding to the mother’s application would accentuate her sense of loss in respect of her father and one identified by both experts in this matter.
I also note the significant age difference between Y and X and a likelihood that Y will remove herself, at least partially either emotionally or actually from her mother’s household over the next few years.
I also take into account what I can easily find to be the altruistic and generous proposals of each parent for time/with on weekends and school holidays which will serve, at least to a large degree to maintain relationships for X.
Section 60CC(3)(e) - the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis.
The mother lives in (omitted). The father lives in (omitted). The travel time between the two locations is something in excess of two hours. The parties have already agreed a mutual meeting point and I am satisfied as to their commitment to travel so as to maintain X’s relationship with the other parent wherever she lives.
Section 60CC(3)(f) - the capacity of each of the parents to provide for X’s needs including physical, emotional and intellectual needs.
Each of the parents have some difficulties in attending to X’s physical needs. The mother works for some hours after the completion of school. X and Y spend those after school hours at the mother’s workplace. The mother herself volunteered evidence as to her difficult financial situation. It seems that neither Y nor X enjoy any extracurricular activities and notably X has expressed to the experts a desire to pursue sporting and her other interests which she still associates with her father in northern Tasmania. My observations of the mother and the often equivocal nature of her evidence suggests to me that she herself may be unsettled in her personal life and noting her voluntary comments to the effect that she may return to live in northern Tasmania but has no firm plans. I also note in this sense the unfortunate breakdown of the mother’s romantic relationship which was established only after her separation from Mr Parker in November 2015.
The father also has some difficulties. His health is not strong. His doctor advises against any strenuous physical activity. He cannot pursue his preferred employment. The indications are that X herself is robust in her interests outside of school and home and this may test the father’s capacity.
The father is in the throes of establishing his own relationship with Ms J. She has three young children and it would be naive to suggest that the establishment of a blended family inclusive of X would take place without some adjustment difficulties for both father and child and particularly where X seems to crave the direct emotional connection with her father.
I am satisfied, however, each of these parents is devoted to X and would prioritise X’s care. The mother has cared for both X and Y since December 2016. The father cared for both girls between June and December 2016. In this sense, they have both demonstrated capacity.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The family reporter raises the fact that X would shortly be travelling through puberty and may glean more comfortable support from her mother. However, Ms J gave evidence and I observed a woman of calm and understanding disposition and expect that she would be able to properly assist in any matters where X preferred female support.
X is just 9 years of age and an issue for the Court is in respect of the maturity and rationality of her wish and preference to live with her father in northern Tasmania. The experts urge caution in this respect and as to whether X has a misplaced sense of being a replacement for her mother as to the medical care of the father.
Section 60CC(3)(h) – whether the child is Aboriginal or Torres Strait Islander.
Not relevant.
Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
The father’s evidence is notable in its absence of criticism of the mother leaving both Y and X in his care mid 2016 in order to pursue either or both of her career and romantic ambitions in southern Tasmania. What is clear, however, that the father was prepared to accept the responsibility of being a sole parent to both X and Y at that time. He continued to do so after his serious health issues. As with his affidavit material, the father’s evidence in the witness box was essentially devoid of criticism of the mother and with the focus on X’s best interests.
The mother was more inclined to criticism of the father. She continually accused him of being non-communicative after she had unilaterally retained X in December 2016. The mother says that she over held X because of ‘issues’ in respect of the father’s parenting including such matters as X’s dental hygiene and the fact that X was sharing a bed with her father. Whilst these ‘issues’ have apparently been easily resolved, I found it difficult to understand what remaining issues were of concern to the mother where she herself says that she informed the father that she would be only retaining X until such ‘issues’ were resolved. Perhaps with an over simplicity of deduction, my observations of the mother in the witness box suggested that she may have had a change of heart in leaving X with the father after she became settled in her own employment in Hobart and after the demise of her own romantic relationship. In any event, she remains non-committal to any long term or permanent residence in Hobart and continues to throw out the suggestion of a return to northern Tasmania. The implication of her evidence remains that it is only the ‘issues’ which are now resolved which cause her to retain X. However, the mother herself has also shown a responsible attitude to her children. She was able to leave them in the relatively settled environment of Launceston in 2016. She says that, circumstances permitting, she would consider returning herself to Launceston. In the witness box she generally impressed as a good and responsible parent.
Sections 60CC(3)(j) & (k) – issues of family violence or family violence orders.
Not relevant.
Section 60CC(3)(l) – the orders that would be least likely to lead to the institution of further proceedings in relation to X.
An order in terms of the father’s application would give credence to X’s own wishes and preferences. She is, however, only 9 years of age and her motivation for those wishes remains untested as does her ability to settle back to a lifestyle in northern Tasmania which in all likelihood would include the blended family with Ms J and her children. The change in X’s preferences in the coming years might well lead to further litigation, as would her inability to settle into a new family unit.
Conversely, X has been consistent in her wish to return to her father’s care in northern Tasmania. She has been able to articulate a number of reasons for her preference and, as such, orders contrary to those preferences may result in the continuation of X’s behavioural problems and ‘melt downs’ and further litigation.
Findings and Conclusions
I am satisfied on the evidence that X has established and attached relationships with both her mother and her father and with Y. I am satisfied that X’s current relationship with her mother is problematic and based to a degree on, or contributed by, the fact X is aware that the mother has over held her in southern Tasmania from an agreed period of time without the consent of the father. This has resulted in behavioural problems for X at home and at school to the serious level of frequent ‘melt downs’. There is no evidence before me that X suffers these behavioural difficulties when in the care of the father noting that she lived with the father between June and December 2016 but having limited time with him in 2017. I am comfortably persuaded however that X not having her views acceded to is a major cause of her conflicted behaviour.
I am satisfied that X has a consistent and articulated wish and preference to live in northern Tasmania and to live with her father. I find a degree of maturity and rationality in her state of views. She has been able to give the experts, Dr A and Ms S a variety of objective reasons for her wishes and preferences. A number of those reasons are empirical and relate to her understanding of relativity between her parents in matters such as finance which also have an empirical foundation. A number of her reasons relate to lifestyle factors. I am satisfied that X’s wishes to be with her father are of such strength that they must outweigh any concerns as to a relationship with her father being challenged by “sharing” him within a blended family.
Importantly, I am not persuaded that X’s wishes are based on some misguided or immature loyalty towards her father and a feeling that she is required to be a substitute for her mother or to care for her father’s health. Notably, the notes of Dr A now exhibited in these proceedings do not show this to be one of the reasons articulated by X and enquiries by the experts, understandably concerned as to this possibility, did not disclose any such immature or misplaced loyalty in X. She has maintained these views even after living with her mother for six months and establishing friends at school in Hobart.
I am satisfied that X and Y have a close relationship but one that might endure their separation. There is a substantial age difference and it is expected that their interests and friends would be diverse. They would continue, in any event, to have regular weekend and holiday contact. Neither girl expressed any hesitation to the family reporter of being separated. I give some weight to Ms S’s view that some distance between the two girls might assist their relationship which is currently conflicted.
I am not persuaded, on the balance of probabilities, that the mother is yet settled in southern Tasmania. She has on a number of occasions in her evidence suggested a return to northern Tasmania.
I am satisfied that the father has the capacity to attend to X’s physical, emotional and intellectual needs. Whilst accepting the cautions urged by the experts that X might have some difficulties assimilating into a blended family together with Ms J and her children, it is equally plausible to accept the father’s suggestion that such a blended family unit with other children and two adults might allow X to return to her childhood which was also suggested by the experts. I find Ms J to be an empathetic adult who would be understanding and adaptable to any difficulties for X in joining a larger family unit.
I am satisfied that both parents are committed to maintaining X’s relationship with the other parent and with Y.
Conclusion
It is trite to observe that matters involving the proposed relocation of a child are among the more difficult ones coming before this court. Ideally, children should continue to have frequent, easy and spontaneous access to each of their parents despite the separation of those parents. The relocation of a child brings into play all the geographical negatives such as the loss of flexibility and spontaneity in parent/child relationships. Opportunities are lost for parental involvement in school and extracurricular activities and the mutual enjoyments contemplated by the concept of ‘substantial and significant time’ in the Act. Relationships are tested by logistical considerations including travel and associated costs. A high degree of commitment is required by each parent to maintain important relationships. Children’s relationships themselves are often tested and conflicted with peer group relationships and extracurricular activities in their new location.
Matters involving the relocation of a child will almost inevitably leave the remaining parent aggrieved and with a strong sense of loss. Alternatively, the refusal of relocation can cause a parent a loss of life, career or relationship ambitions. As in most matters involving the relocation of a child and where each of the parents has established, attached and loving relationships with the child and where each parent has a strong demonstrated capacity, the decision for the court here is a finely balanced one.
There are a number of advantages to the mother’s proposal including that X is now relatively settled in (omitted) College after the change from Launceston and she has established friendships. The mother’s proposal allows her to continue the important relationship with Y in the same household. There are the potential advantages for X in travelling through puberty in a comfortable and proximate relationship with her mother. X would be relieved of any suspected hierarchical problems in thinking that she is required to care for her father. She would also be relieved of any potential difficulties in assimilating into the blended family unit and household proposed by the father and Ms J.
There are, however, a number of advantages for X on the father’s proposal. Firstly, orders in such terms would give credence and acknowledgement to X’s wishes and preferences. It is likely then that the behavioural problems witnessed by the mother in her household would be alleviated. X would be able to return to the familiarity of her childhood family, school and friends. As mentioned above, there may be advantages for X in experiencing the proposed blended family in that she would be able to ‘retrieve her childhood’. The father’s proposal would give X a degree of stability in that she has only been removed from her previous school and friendships for some 6 months, whereas the mother’s evidence gives some uncertainty as to whether or not she will return to northern Tasmania and, if so, a later return for X after becoming even more settled in southern Tasmania may present difficulties.
On balance, I am persuaded that X’s best interests are served by her living with her father in northern Tasmania. In doing so, I place some considerable weight on X’s views and preferences and despite her being just 9 years of age. I am impressed by the consistency of her statements and her ability to tell both her parents and the experts that she prefers to live in Launceston. She has been able to rationalise her preferences and I do not believe that she is influenced by some misplaced sense of responsibility to her father’s health. Rather, the evidence suggests that X’s behavioural problems in southern Tasmania might be directly linked to her not feeling that her own wishes and views have been heard and that X’s relationship with her mother and Y might benefit from her return to Launceston.
I am satisfied and comfortable that the father has the capacity to care for his daughter and find that Ms J would represent as a supportive and proper role model in any family unit. I am not persuaded that the father is unable to care for a nine year old by reason of his health conditions and again note Dr K’s evidence in this regard.
I am satisfied that the father is objective, understanding and insightful of the need for X to maintain a relationship with her mother and Y and that he would commit to contributing accordingly and that he and Ms J will appropriately and sympathetically deal with the transition of X into a blended household.
As Ms S insightfully observed, there are “knowns” for X if she remains with her mother. However, those “knowns” currently comprise conflict, unhappiness, grieving and behavioural problems all requiring assistance of a counsellor fact X. It is difficult to identify only current “benefits” for X in the current arrangement. True it is that the father’s proposal offers may “unknowns”. However, a Court can be assisted in such matters by evidence such as the demeanour, insight, and empathy of the adults charged with dealing with such “unknowns” and I am confident that all three adults here of the father, the mother and Ms J have those qualities.
I am satisfied therefore that X’s best interests are served by living primarily with her father. The parents, consistent with their potential to co-operatively parent X, have agreed a regime of time-with orders for X and the other parent whatever my determination.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 30 June 2017
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Family Law
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