Pfaff and Rilling
[2018] FamCA 904
•8 November 2018
FAMILY COURT OF AUSTRALIA
| PFAFF & RILLING | [2018] FamCA 904 |
| FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where a party seeks to be permitted to relocate to another country with the children – Where relocation is opposed – Best interests of the child – Meaningful relationship – Where the relocating is the primary care giver – Whether the relocating parent’s ability to parent the children would detrimentally impacted by remaining in Australia – Where the tyranny of distance could endanger the children’s relationship with the non-relocating parent – Whether the relocating parent can appropriately support the children’s relationship with the non-relocating parent. |
| Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Beckham & Desprez [2015] FamCAFC 247 Blanding & Blanding [2016] FamCAFC 21 Godfrey & Sanders [2007] FamCA 102 Mazorski & Albright [2007] FamCA 520 MRR v GR (2010) 240 CLR 461 Starr & Duggan [2009] FamCAFC 115 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Pfaff |
| RESPONDENT: | Ms Rilling |
| FILE NUMBER: | ADC | 4247 | of | 2015 |
| DATE DELIVERED: | 8 November 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 17 - 21 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bowler |
| SOLICITOR FOR THE APPLICANT: | Martin Robinson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
Orders
That all previous parenting orders be discharged.
That the parties have shared parental responsibility for X born … 2010 and Z born … 2013 (“the children”) subject to paragraph (3) hereunder.
That the mother have sole parental responsibility in respect of health issues and the education of the children subject to a requirement that she will advise the father in writing (electronically or otherwise), provide her views about any major issues affecting the children’s health (including dental) and their education and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
That the children live with the mother.
That the children spend time with the father as follows:-
(a)During the school term: on each alternate weekend from the conclusion of school (or childcare/early learning) or 3 pm if a non-school day on Friday to the commencement of school (or childcare/early learning) or 9 am if a non-school day on Monday;
(b)During the school term: in the intervening week from the conclusion of school (or childcare/early learning) or 3pm if a non-school day Thursday to the commencement of school (or childcare/early learning) or 9 am on Friday;
(c)For one half of the short end of term school holidays and for one half of the Christmas long school holidays.
That the children spend time with the parties on special occasions as follows:-
(a) On Mother’s Day and Father’s Day in each year:-
(i)Between 5 pm on the Saturday preceding Mother’s Day until 5 pm on Mother’s Day the children will spend time with the mother;
(ii)Between 5 pm on the Saturday preceding Father’s Day until 5 pm on Father’s Day the children will spend time with the father.
(b) On the children’s birthdays in each year:-
(i)If the child’s birthday falls on a day that is not a school day and the father would not otherwise be spending time with the child then the child will spend time with the father from 2 pm until 7 pm;
(ii)If the child’s birthday falls on a day that is not a school day and the father has the care of the child then the child will spend time with the mother from 2 pm until 7 pm;
(iii)If the child’s birthday falls on a school day and the father would not otherwise have the care of the child then the child will spend time with the father from the conclusion of school until 6.30 pm;
(iv)If the child’s birthday falls on a school day and the father has the care of the child then the child will spend time with the mother from the conclusion of school until 6.30 pm.
(c) At Christmas:-
(i)In 2018 and in each alternate year thereafter the children will spend time with the father between 3 pm on 24 December until 3 pm on 25 December and with the mother between 3 pm on 25 December until 3 pm on 26 December;
(ii)In 2019 and in each alternate year thereafter the children will spend time with the mother between 3 pm on 24 December until 3 pm on 25 December and with the father between 3 pm on 25 December until 3 pm on 26 December.
(d) Such other times as may be agreed between the parties.
That each party shall be at liberty to take the children on an overseas holiday at least annually PROVIDED:-
(a)The party requesting the holiday time provide forty two (42) days written notice to the other party;
(b)Both parties consent in writing to the holiday occurring if some or all of the proposed period does not coincide with school holidays;
(c)That in the Christmas school holidays commencing 2019 and each alternate year thereafter the mother at her election can seek that the children’s time with her shall be extended to thirty (30) days;
(d)That in the Christmas school holidays commencing 2020 and each alternate year thereafter the father at his election can seek that the children’s time with him shall be extended to thirty (30) days.
When giving notice of any intended overseas holiday each party shall provide the other with the following information:-
(a) An itinerary;
(b) Flight and/or accommodation details;
(c) Contact details for the duration of the overseas travel.
That the mother shall inform the father of the identity and contact details of any health professional (including dental) involved with the children’s care and shall authorise the health professionals to communicate with the father and to release any information to him as he may request.
That the mother authorise any school at which the children attend to provide copies of school reports, school notices, school newsletters and school photos of the children (at the father’s expense) to be provided to him and such other information as he may request.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pfaff & Rilling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4247 of 2015
| Mr Pfaff |
Applicant
And
| Ms Rilling |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Further Amended Initiating Application filed 19 June 2018, Mr Pfaff (“the father”) seeks parenting orders in respect of X born in 2010 and Z born in 2013 (collectively “the children”).
By Further Amended Response filed 16 August 2018, Ms Rilling (“the mother”) opposes the orders sought by the father and seeks to relocate to Country D with the children.
DOCUMENTS RELIED UPON BY THE FATHER
The father relies upon the following documents:-
a)Further Amended Initiating Application filed 19 June 2018;
b)Trial Affidavit of father filed 19 June 2018;
c)Affidavit of father in reply filed 12 September 2018.
DOCUMENTS RELIED UPON BY THE MOTHER
The mother relies upon the following documents:-
a) Further Amended Response filed 16 August 2018;
b) Trial Affidavit of mother filed 16 August 2018;
c) Affidavit of Mr A Rilling filed 16 August 2018;
d) Affidavit of Ms B filed 16 August 2018;
e) Affidavit of Dr C filed 16 August 2018.
The father was represented by counsel who provided a Case Outline document filed 14 September 2018. The mother was a self-represented litigant and she also relied upon a Case Outline document presented to the Court at the commencement of the proceedings.
ORDERS SOUGHT BY THE PARTIES
The father seeks orders as set out in his Further Amended Initiating Application. His orders sought can be summarised as follows:-
a)That the parties have equal shared parental responsibility;
b)That the care of the children be shared between the parties on a week about basis;
c)That either party be permitted to take a child or the children out of the Commonwealth of Australia for the purposes of holiday travel providing that:-
i)the period of travel may not exceed 30 days and should be taken during school holiday periods on one occasion in every two years;
ii)the travelling party shall give the other party at least 60 days’ notice of the intended destination and proposed dates of travel;
iii)the travelling party shall provide a copy of the full itinerary;
iv)that in any event overseas travel for the children shall be limited to no more than one occasion in each calendar year;
v)that the travelling party will ensure that the children communicate with the other party on at least one occasion per week by telephone, Skype or Facetime;
vi)that any time foregone by a party as a result of the children travelling overseas is to be made up by further time being taken during school holidays within a period of one year after the date of the children’s return;
d)Handovers shall occur either at school or in the event of it not being a school day then to and from the separate residence of each of the parties;
e)An appropriate exchange of information in respect of matters affecting the health and welfare of the children.
The orders sought by the mother can be summarised as follows:-
a)That the children live with the mother;
b)That the mother have sole parental responsibility for the children;
c)That the mother be permitted to relocate the primary residence of the children to Country D;
d)That the children spend time with the father in Country D at times to be agreed between the parties or in default of agreement:-
i)on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday;
ii)in the intervening week from the conclusion of school Thursday to the commencement of school Friday;
iii)for one half of school holiday periods provided that the children spend no more than six consecutive nights with the father;
iv)that if the father choses to remain in Adelaide then the mother will travel with the children to Adelaide at least once every two years with the father being at liberty to travel to Country D in the intervening year;
v)that the parties are at liberty to communicate with the children via telephone, Skype or Facetime;
vi)that the parties are to facilitate the children contacting the other parent if so requested at any reasonable time;
e)That if the mother is not permitted to relocate the primary residence of the children to Country D then the following orders are sought:-
i)that the children live with the mother;
ii)that the mother have sole parental responsibility for the children;
iii)that the father spends time with the children as may be agreed between the parties or in default of agreement as follows:-
a.on each alternate weekend from the conclusion of school (Friday) to the commencement of school on the following Monday;
b.in the intervening week from the conclusion of school Thursday to the commencement of school Friday;
iv)that holiday periods are to be shared equally between the parties provided that the children spend no more than six consecutive nights with the father;
v)that the mother be at liberty to change the enrolment of the children from their current private school to a school of her choice noting that any decision will be based on the quality of the curriculum, cost and distance to the children’s home.
f)That regardless of whether the mother is permitted to change the residence of the children to Country D or not that each party shall be at liberty to take the children on an overseas holiday at least annually for a continuous period of 30 days provided:-
i)the party requesting the holiday time give 42 days’ written notice to the other party;
ii)both parties consent in writing to the holiday occurring; and
iii)such consent not to be unreasonably withheld providing that in any event the travelling party will provide the other party with an itinerary, details of flight and/or accommodation arrangements and contact details during the duration of the overseas holiday.
PROPOSALS OF THE PARTIES
The mother better defined her proposal for the children if she is successful in the children being permitted to relocate to Country D. At the commencement of the proceedings, the mother provided a proposal which set out the arrangements for the father to visit the children in Country D commencing in the Country D summer holidays between 8 July and 16 August 2019. The mother proposes that for a period of up to six weeks the children would spend six nights with the father and two nights with the mother for the duration of the father’s stay in Country D.
In 2020 the mother would return to Australia with the children during the Country D summer holidays between 20 July and 28 August 2020. The children would spend seven consecutive nights with the father and two nights with the mother across the proposed period.
In 2021 the children would spend time with the father in Country D either during the summer holidays between 26 July and 3 September 2021 for a period of up to six weeks, or during the short Christmas holidays between 23 December 2021 and 1 January 2022 for four weeks. The children would spend one block of two weeks with the father and then resume an alternating pattern of seven nights with him and four nights with the mother.
In 2022 the mother would return to Australia with the children during the Country D summer school holidays and they will spend two weeks with the father followed by seven consecutive nights with the mother and the balance of the holiday period with the father.
In 2023 the children would spend time with the father in Country D for up to six weeks with the first two weeks with him, seven nights with the mother and the remainder of the time with the father.
As and from 2024 and each alternate year thereafter, the mother would bring the children to Australia during the Country D summer school holidays and they would spend time with the father for an initial period of two consecutive weeks followed by seven nights with the mother and the remainder of the period with the father.
The mother contemplates that there may be other occasions when the children would spend time with the father in order to celebrate their birthdays, his birthday or Father’s Day.
She is resistant to the children flying unattended until at least they are able to do so having regard to the relevant airline regulations.
The father opposes the more detailed proposal of the mother and remains opposed to any parenting order that would have the children living with the mother in Country D. He rejects a basic premise of the mother’s proposal namely, that he has the financial ability or the desire to travel to Country D in the alternate years. The consequence for the father is that if he does not travel to Country D to spend time with the children, other than by electronic communication, he may not see the children for a period of two years.
BACKGROUND
The father was born in Country D in 1966. The mother was also born in Country D in 1976.
The parties still have extended family in Country D. In particular, the mother has an older brother Mr A Rilling who remains living in her home town.
The parties met in Country D in 2003. The father has three children aged 24, 18 and 15 from a prior relationship. Those children continue to live in Country D.
At the time the parties commenced their relationship, the mother held a graduate degree and worked part-time in the community sector. The father holds a qualification as a tradesman.
In 2006, the parties moved from Country D to Australia. The father entered Australia on a sponsored 457 Temporary Residency Visa. He was subsequently granted Permanent Residency and became an Australian citizen in 2011. The father has renounced his Country D citizenship and does not hold a Country D passport. The mother gained entry to Australia as the father’s partner. She became an Australian citizen in 2012, but did not renounce her Country D citizenship.
The mother’s degree was not recognised in South Australia. She made attempts to qualify by application to a Masters course. She was not able to afford the expense of the course as she was considered to be an international student and not able to access a HECS loan.
The mother was offered a full-time position in community services.
The father readily obtained work as a tradesman. He has engaged in various businesses and in 2008 joined Company E where he remained until September 2017 when his employer went into liquidation.
The father is now a self-employed tradesman in a business that he set up in 2008.
The parties purchased their first home in July 2008 and then the mother ceased work in anticipation of the birth of X.
The mother expressed her desire to spend time in Country D. She travelled to Country D with X in September 2010 and remained for more than two months.
Upon her return there were difficulties with the relationship and she expressed a desire to return to Country D permanently.
Initially, the parties were content in Australia. It appears that the father readily adopted Australia as his home and has not expressed any desire to return to Country D on a permanent basis. The mother’s position is qualitatively different. Whilst not adverse to Australia and accepting that she has managed to find and retain full-time employment, she remains unhappy and homesick.
The mother booked tickets to go to Country D in mid-2013. She purchased one-way tickets for herself and the children and intended to spend Christmas in Country D and then to remain indefinitely. At first the father was initially reluctant to follow the mother, but travelled to Country D for six days from 24 December 2013 to 30 December 2013.
Following the father’s return to Australia, the mother and the children remained for three months. The mother looked for suitable employment and the father was initially supportive of the mother’s plan and acquiesced to the children remaining with her in Country D.
In March 2014 the mother decided that she would return to Australia. The father was prepared for the mother to remain for a longer period in Country D whilst she explored employment options and opportunities.
The relationship difficulties were such that upon the mother’s return to Australia the parties separated in July 2014, with a physical separation occurring on 20 October 2015 in anticipation of the sale of the former matrimonial home.
Following separation the mother again returned to Country D for a period of about one month in mid 2015.
Following separation the mother became more determined that her happiness and consequently that of the children was only likely to be supported by a return to Country D. For his part, the father decided to invest significant time in parenting the children having considered that his lack of involvement with his older children had likely brought about a substantial breakdown in his relationship with her.
The father concedes that his view and earlier preparedness to support the mother and the children returning to Country D changed dramatically in 2015. He has no desire to return to Country D and had considered a return only to support the family, the wife’s employment and to reconcile their differences.
The father also concedes that the mother has had the primary care of the children. He rejects the mother’s contention that the father was detached from family life, but it is likely that the mother fulfilled the role of homemaker with only modest assistance from the father.
THE EVIDENCE
The mother’s Outline of Case document was indicative of the mother having given careful consideration to the issues in dispute and the factors that the Court was likely to consider in determining the orders that were in the children’s best interest.
The father
The father’s evidence as set out in his trial affidavit material was supplemented by examination in chief. He had considered where the children should attend school if the mother’s application for relocation was unsuccessful. The father opted for the children to attend F School.
The father was asked whether the parties had discussed what would happen if either of them were no longer happy to remain in Australia. The father candidly admitted that it had been a topic of conversation with the parties over the years and at one point he had been prepared for the mother and children to remain in Country D. It is likely that if the mother and children had not returned to Australia in 2014 the father would not have taken any steps to force their return.
The opposition to the mother’s intention to relocate the children to Country D was a position adopted by him after separation and having considered that Australia was now his home and that he did not have any real desire to return to Country D.
He also concedes that whilst it was his preference to now remain in Australia, he accepted that since 2010 the mother has been homesick and it has been hard for her to remain here.
Since separation the parties have been wary of the other’s intentions. In 2016 the mother wanted to travel with the children to Country D to see her uncle. The father initially refused the mother’s permission to travel because he was frightened that she may not return.
The father accepted that there had been a general deterioration in the ability of the parties to cooperate in terms of the exigencies of the children’s lives. They were not able to agree on a soccer club for the children. The father wanted the mother’s permission to enrol the children in a Martial Arts course. The mother’s position was not forthcoming.
The parties have remained in dispute as to their differing views of what may constitute appropriate medical attention for the children.
The father acknowledges that he is a believer in alternative medicine. He adopts alternative therapies and places considerable store in the views of Louise L Hay, the author of the book “You Can Heal Your Life”. The degree to which father involves the children in his reliance upon and pursuit of alternative therapies is uncertain. He described his philosophy as needing to bring mind and body back into balance using meditation.
The mother’s evidence refer to ongoing medical issues with the children, in particular involving ear infections and their susceptibility to infection. The mother alleges that notwithstanding her instruction to the father that he needed to administer antibiotic ear drops, the father either failed or refused to do so.
The mother advises the father of any medication requirements. She relies upon a report of the children in July 2017 to the effect that the father did not administer the ear drops and told the children to keep it a secret.
The father confirms the mother’s evidence that in July 2017 he caused a sample of blood to be taken from Z which he now claims was necessary to identify the children’s blood group. The father did not seek the mother’s permission and but for X revealing to the mother that the procedure had been undertaken, she would not have known about it and would not have given her permission in any event.
The mother is concerned as to what she considers is the father’s unconventional views about medical illness and the appropriate treatment. The father claims that he can cure some cancer. Of relatively recent date, the children attended on their father with a donation tin collecting money for the Childhood Cancer Association. Rather than provide a donation, the father placed a note in the collection tin in the following terms:-
Dear Sir or Madam,
I can not donate money, but I can offer my help, without charge, that can heal cancer; by applying different practices of Yoga, Tai-Chi, Breathing techniques, Chanting and Pranik--healing to children that have hope and are willing to believe in what I can offer.
Atma Namaste
[The father]
[Contact telephone number]
A copy of the note is Exhibit “9” in the proceedings.
The mother is aware that the father places significant store in alternative therapies. The father does not resile from his strong views, but considers that there is much to be gained by engaging in alternative therapies and in any event he does not consider that they are the “exclusive answer for everything” and contends that where necessary, he will seek mainstream medical attention for the children.
The issue between the parties in respect of their differing views as to what may constitute appropriate medical treatment is a matter of ongoing contention. The mother is unlikely to reconcile her concerns and this will result in ongoing dispute. Of particular note is the extent to which the children are involved in the parties’ different approaches.
The mother was challenged as to the extent to which she had allowed the father to have an involvement in the children’s schooling and education. She denied that she had taken any steps to actively prevent the father from being involved in the children’s schooling but rather contends that the father showed no interest and that their education was left almost entirely to her.
There were some occasions when the father did attend but there was no certainty to his attendance and the mother did not consider that the father considered the children’s schooling with any great enthusiasm.
The father conceded that in 2010 that the mother was homesick and saw it as important for her to return to Country D. She wanted to pursue her career and he understood its importance to her wellbeing and as such was prepared to facilitate the mother’s return. The mother made the decision to return with the children and it was only then that the father realised that if he allowed the children to leave again, it was unlikely that they would return to Australia and his relationship with them would be fundamentally and adversely affected.
The father conceded that in May 2015 he assaulted the mother. She alleges that he was intoxicated and became upset and angry at being unable to tolerate Z’s crying. She says that he attempted to take Z outside and when she intervened he then hit her to the left side of the face and left ear. When she attempted to call the police he knocked the phone from her hand. She contends that she was fearful and humiliated. The mother alleges that there had been other occasions when the father had hit her in the face.
Whilst the father disagrees with the context in which the assault took place, he admits that he slapped the mother as alleged and considered that his level of intoxication was at least in part an explanation for his lack of self-control. To his discredit, the father seeks to attribute aggressive conduct by the mother. The father’s evidence on this topic was unimpressive. I accept the mother’s version of events and consider that irrespective of the context in which the father would wish to place the incident, the mother presented no justification for the father assaulting her.
The father did however accept that he recognised that it was a serious incident and justified the mother’s upset and distress.
The mother
The mother was challenged as to the purpose of her wishing to return to Country D to pursue her career prospects. She was confident that she would be able to find employment and she had the support of her father and particular her brother Mr A Rilling.
The mother however does not want to work in the area of her training, but in a related field.
She does consider that there are job opportunities in Country D, although she was not able to present any separate evidence of the availability of employment in Country D.
She acknowledged that at present she is in a managerial role and her employment is secure until at least 2020. She commenced at her current employment in 2011. Her income is modest.
She conceded that her job prospects in Country D were likely to be no different to her position in Australia and since arriving in Australia she has remained in constant and permanent employment.
She conceded that her prospects for employment are good in both countries.
The mother accepted that initially she was happy living in Australia. She considered that Australia was to be her home and accordingly applied for and was successful in attaining Australian Citizenship.
During the course of the proceedings the mother has filed affidavits that state she is very happy living in Australia. When asked to consider what has changed she provided a superficial response that linked her expressed happiness to living in Australia as a reflection of her relief at having been separated from the abusive relationship she had with the father.
The mother does not appear to have a difficulty with the father seeking to be further involved in the children’s schooling. She still has a mistrustful relationship with him, but she conceded in evidence that the parties are able to communicate at a better level than immediately was the position following separation.
The mother was challenged as to the extent to which she has spoken with X about her wanting to relocate the children to Country D. The mother denied that she had had any discussion with the children and was asked to consider the remarks of Ms G in her criticism of the mother discussing the litigation.
The mother strongly contends that she has an interest and intention that the children will keep contact with the father’s parents in Country D. It is a significant part of her proposal that by the children returning to Country D they will nonetheless keep contact with the father’s extended family. Counsel put to the mother that she had made up a story that the father’s parents had refused an offer to see the children.
At the conclusion of the proceedings the mother presented an email that she had received from the father’s parents dated 30 March 2014. The following text is not disputed:-
Hello [Ms Rilling],
thank you for [X’s] invitation to his birthday party.
As much as we loved being invited, it is with great regret that we cannot accept this invitation. The reason being that, at this point in time, we simply cannot see any basis for a relaxed birthday party. If it really was [X’s] wish to celebrate his birthday with his paternal relatives, we could understand that. However, we don’t believe that [X] was actually talking about us, but rather about his father.
-But we cannot be a substitute for him! –
And if it is impossible even for US to understand the reasons why [X] cannot celebrate with his father, then maybe at least you might be able to explain to him why you couldn’t grant him this wish.
…
from
[…]
The mother was asked to consider the children’s school reports for 2016, 2017 and 2018 school years. The reports are universally complimentary in respect of X’s attendance and the mother conceded that X is doing well.
At present the mother does not suffer from debilitating depressive symptoms or anxiety and after 10 therapeutic sessions no further therapy was considered by her to be required.
The mother impressed as being forthright in her evidence and well organised in understanding and coping with the children’s requirements.
There is little doubt that the mother presented as the more attuned parent. The father raises no criticism of the mother’s care of the children save and except that he considers she has attempted to minimise and restrict his relationship with them.
Mr A Rilling
The mother relied upon the evidence of her brother to support her contention that upon return to Country D both she and the children could take up temporary residence with him.
Mr Rilling impressed as a supportive brother and no evidence was elicited which would suggest that he is not an appropriate person to potentially assist in the care of the children for the period that the mother would wish to reside with him before she obtains her own accommodation.
THE FAMILY REPORT
The Court was assisted by the evidence of Dr H, family consultant, and her report dated 3 September 2018 prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) “the Act”).
The family consultant considered that the following options were available to the Court:-
(1)That the children are permitted to relocate to Country D.
(2)That the children remain in Australia.
(3)That the father relocates with the children and the mother to Country D.
(4)That relocation is delayed for two years.
She recommends that orders should be made which best protects the children’s relationship with their primary caregiver.
The recommendation was accepted by the mother and strongly rejected by the father.
The family consultant adequately sets out the background to the parenting dispute between the parties and summarises the father’s proposal by him seeking that the children reside in Australia and that the parties have equal shared care of the children. The mother seeks that the children be permitted to relocate to Country D and that they travel to Australia each alternate year for a period of six weeks to spend time with the father and in the interim the father is at liberty to travel to Country D and spend a similar period of time.
The family consultant observed that the children’s relationship with their father did not display the level of attunement that they enjoyed with their mother. She considered that the development of the children’s relationship with the father may well be adversely impacted should the children relocate to Country D.
Consistent with his evidence, at [25] of the family report it is recorded that the father admitted that he had assaulted the mother in response to her yelling at him and telling him not to take Z outside. He told the family consultant that he “gave her infant back and [he] smacked her one”. He made reference to a time that he went to go out with the children and the mother yelled at him:-
[The mother] was yelling at him and “pulling me back when I tried to leave. She should not complain that I hold my hand up, (i.e., as if to hit her) – ‘let me go and leave me alone’. I raised my hand and nothing else. She turned around and hit herself against the door. That was all – she thought I was going to hit her. It was the threat to leave me alone. Women seem to have that very often – they attack men physically. Why is she pulling me back? She was just screaming and yelling. I don’t know why”.
The father also conceded that during the course of the relationship he had consumed excessive alcohol but did not consider that presently he had any adverse issues with alcohol.
Notwithstanding that the parties were able to communicate by email, the father conceded that he had a poor relationship with the mother, that communication between the parties was difficult and understood that this may well be a relevant factor in determining whether there should be an equal shared-care order in place.
When asked, the mother reinforced her position that the relationship with the father had been marred by family violence both physical and emotional. She accepted that the father’s behaviour seemed to be fuelled by excess alcohol and the father’s controlling conduct and behaviour was a significant factor, in particular in terms of her perception that he had tried to minimise or restrict her relationship with her family in Country D.
The mother repeated her concerns that whilst the father was entitled to his own view on life and health involving alternate therapies, she did not consider that his conduct towards the children was either helpful or in their best interests. She candidly told the family consultant that she was going to stand her ground. It is likely that going forward the parties will not be able to reach a consensus as to the appropriate medical treatment for the children.
The family consultant asked the mother as to the basis upon which she wished to return with the children to Country D. The mother’s response was that since the birth of the children she had wanted to return and was increasingly homesick. She reported anxiety, panic attacks, mild depression and issues relating to sleep and eating disorders. The mother conceded that she had overcome these issues through hard work and whilst unhappy in Australia she did not “sit in a dark corner – I created a life here. It was hard work, but I did it”. The mother considered that she was a strong person and would remain so to provide stability for the children.
She highlighted her belief that whilst her financial position in Australia was parlous, particularly given the significantly reduced child support payments from the father, in Country D she would be better remunerated.
X presented as a shy young person who nonetheless understood the reason for the assessment. He enjoyed school and had a wide circle of friends. He was aware that the parents were in dispute over his continued attendance at his private school and understood that his father wanted to send him to a “wild school in the forest” but his mother wanted to move him “to a school not so expensive”.
He was clearly aware that his father wanted him to remain in Australia and his mother wanted him to live in Country D. He was asked to comment as to the current parenting arrangements. His response was to confirm that his father had spoken to him about a week about arrangement, however, he was comfortable with the current orders and did not see any advantage to a significant increase.
Under observation, the father was observed to be attentive to the boys and to engage them in appropriate activities. For their part, the boys reacted positively to their father. The family consultant observed that there was a level of forced joviality as between the father and the boys and at times appeared “dysregulated and silly”. Similarly, the children greeted their mother and she was able to interact with them appropriately. The family consultant formed the view that the mother was more attuned to the needs of the children and she was able to provide a sense of security for them.
The family consultant correctly acknowledged that “geographical distance and time create obstacles to the continuation of the children’s relationship with the non-relocating parent as it limits the degree of parental involvement of a non-relocating parent”.
The mother’s proposal provided for the father to spend a maximum of six weeks with the children each year, but more likely each alternate year. The family consultant conceded that it would be a very different relationship between the children and their father if relocation occurred.
The family consultant referred to the mother’s psychological functioning and considered that her unhappiness was accepted by the father. The family consultant held no concerns about the mother’s ability to assist the children to adjust to live in Country D, but was concerned as to the impact on the mother if she was not permitted to relocate.
There was significant emphasis on the ability of the children to relocate and I am satisfied that if such an order was made the mother would have the necessary skills to manage the children’s transition.
The family consultant was challenged by the father’s counsel that the report contains no assessment of the impact on the children of them not seeing their father but for a limited period in each alternate year. Moreover, the family consultant was not involved to undertake a psychological assessment of the mother but rather, to assist the Court in the children’s presentation and the potential to which each of the separate proposals of the parties may impact them.
The family consultant agreed that if the children did not see their father for two years, this was likely to be devastating to the father-child relationship.
At [78] of the report, the family consultant considered that the Court would need to be satisfied that the mother was able to support the children’s relationship with their father, in particular by the use of electronic communication. However, she conceded that it was not a viable alternative to the children being able to maintain a meaningful relationship by coming into regular physical contact with the father and his engagement in some of their day to day activities.
PRINCIPLES RELEVANT TO PARENTING ORDERS
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The test of what is in the child’s best interest is to be considered by the application of the objects and principles of Pt VII pursuant to s 60B.
I bring to account the primary and additional considerations of matters as set out in s 60CC(2) and s 60CC(3) of the Act. There are no allegations that the children are at risk from the behaviour of either party.
I propose to adopt the following approach:-
a)To give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
b)To have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);
c)To have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
d)To have regard to the primary considerations under s 60CC(2) namely, the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
e)To have regard to the additional considers under s 60CC(3);
f)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be considered to one or more of the matters raised then it must be the subject of delineation and comment.
Section 61DA of the Act requires the Court to consider whether to apply to presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In the circumstances of this case, the father seeks an order of equal shared parental responsibility, whereas the mother seeks an order of sole parental responsibility
In circumstances where the parties seek an order of equal shared parental responsibility and it is not rebutted, then s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. In MRR v GR (2010) 240 CLR 461 it was said that the considerations of whether equal time was feasible required a “practical assessment”.
Following the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247 there is now a focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
The principles applicable to relocation cases
In AMS v AIF (1999) 199 CLR 160 Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
[216] An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
[218] To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father ... or to be in the custody of the mother ... That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody ...
The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the co-existence principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC. The approach is not meant to be rigid such that:-
38. ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals; in this case the wife’s application that she be permitted to relocate to Country D with the children.
Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities both international and local and summarised the position as follows:-
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow & Callinan JJ said in U v U:
...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.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
Parenting considerations
Meaningful relationship
The family consultant considers that the children are strongly bonded to the mother and less so to the father. The father concedes that the mother has been the children’s primary carer throughout the relationship and following separation. He contends that the mother has attempted to distance the children from him, but by reference to the concessions made by him in his trial affidavit and the evidence which provided insight into the extent to which the father was involved in the children’s school and education, the father could be considered to be less involved in the children’s lives.
Pursuant to the orders of 14 September 2017 the children currently live with the mother and spend time with the father on each alternate weekend from the conclusion of school or childcare or early learning, or 3 pm if a non-school day to 5 pm Sunday and on each intervening Thursday from the conclusion of school or childcare or early learning to the commencement of school, childcare or early learning on the following Friday.
The children spent two blocks of extended time with the father during the school holidays in January 2018 of five and six days respectively.
The mother concedes that there is a benefit to the children of having a meaningful relationship with both parents and there is no doubt that it is desirable that the father’s relationship with the children be fostered.
Notwithstanding matters of family violence the mother considers has been perpetrated by the father, she does not believe that the children are at risk in his care.
In Godfrey & Sanders [2007] FamCA 102 Kay J said:-
[36]… 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.
The family consultant considered that there was a fragility to the children’s relationship with the father and that it was at least a significant factor for the Court to consider that if the children relocated to Country D and in circumstances where the father was not able to spend time with them more frequently than a five or six week period in each alternate year, a genuine concern must be raised as to whether a meaningful relationship could be maintained, particularly in respect of Z.
The mother consented to the tender by the father of a report of Ms G, clinical psychologist, dated 18 September 2016. Ms G was not called and whilst caution must always be exercised in respect of a document from a witness who is not available for challenge, the contents of the report are not without some relevance.
Upon the application of standardised tests to psychologically evaluate the strength of the relationship between the children and each of the parties, Ms G summarised the position as follows on page 14:-
7.On the Family Relations Test, [X] assigned the majority of dependency items to his mother, (tucked him in to bed, helped with his bath, cared for him if he was hurt or sick or scared). His father would get dinner, look after him if he was hurt and fixed his toys. In the past his father sometimes tucked him into bed but his mother told him stories at bedtime. He was able to dress himself. He assigned positive feeling in approximately equal numbers to both parents, (both made him happy, he loved and felt loved by both parents, considered both parents were nice, liked to play with them and share affection). [X] also assigned positive items to [Z], (played with him, smiled at him, made him happy, loved him and thought he was a nice boy). …
The observations of the children with the father were consistent with those as observed by the family consultant. The children were excited to see their father, referred to him in affectionate terms and readily engaged in happy and cooperative play.
Reports from the school again were consistent with those presented in evidence. The school personnel reported that X was a happy boy and he shared positive relationships with his peers and his teachers. He was noted to have “an extremely positive attitude towards his learning. He could focus on a task for an extended period of time and was quick to learn most information presented”.
There were no concerns expressed by the teaching staff as to the children’s presentation, their level of hygiene and cleanliness or their organisation. The mother’s presentation and her expressed proposal to relocate the children to Country D has been the position that she has consistently adopted over the last three years.
Ms G considered that the children’s needs have been well met by their mother’s care “despite the challenges experienced by [the mother], allegedly relating to the lack of support”.
The father was complimentary of the mother and considered her to be a “good mum” who provided appropriate support for the children.
There is very little doubt that the father’s awareness of the need to be more involved in the lives of the children was a position that he has come to only of recent date.
Ms G was asked to consider what issues might arise for the children if they were permitted to relocate. She summarised her concerns as follows on page 19:-
With respect to the impact of relocation on [the children], relocation away from a parent is generally not in the best interests of any child, due to the importance of maintaining a meaningful relation with both parents. Relocation presents greater challenges given [the children’s] age, the difficulties in maintaining a relationship with their father at a significant geographical distance and consequent expense incurred with travel. [The mother] has been the children’s primary carer over time and her continuing in this role presents as in the children’s best interests. The impact on [the mother’s] psychological well-being requires careful consideration if her application to relocate is not supported.
It appears that Ms G had some assistance from the mother’s psychologist. The evidence is that the mother sought psychological intervention which involved about 10 sessions of counselling and therapy being undertaken and thereafter felt that she had developed sufficient resilience to carry on with her life, continue her employment and provide a high level of parenting for the children.
The issues involved are well defined. Relocation is to support the mother and to alleviate her distress at wanting to return to Country D, feeling homesick, anxious and at times depressed. There is however a corresponding consequence to the children in terms of their emotional health in not benefiting from the regular input from their father.
It is a further consideration as to whether the evidence supports the father’s assertion that the mother does not currently support the children’s relationship with the father and if permitted to relocate the children to Country D that was likely to be even more problematic and not able easily to be remedied.
The evidence supports the benefits to the children of maintaining a close relationship with the father.
Children’s wishes
Z’s age prevents any meaningful enquiry as to his wishes being undertaken. X was more forthcoming. Acknowledging that X impressed as a mature and intelligent child, some consideration could be given to his perception that he would wish to remain in his mother’s care and have the current arrangements remain approximately the same as they are now, even though he was aware of his father’s position namely, that the children’s care should be shared between the parties.
Of more immediate concern to X was the knowledge that he would inevitably change school because his mother was no longer able to afford the fees. The mother considers that if the child is to be disrupted by changing schools for the beginning of 2019, then this disruption may well coincide with a relocation to Country D.
I propose to give some weight to the matters expressed by X to the family consultant and in particular that generally he recognises that his interests and those of Z are better served in the mother’s primary care than with his father. That view is supported by the evidence as to the history of care and the father’s acknowledgement that he has only recently determined to pursue a more expanded involvement in the parenting of the children.
Involvement of the parties in the children’s lives
The children have been in the primary care of the mother and are now in a settled arrangement in terms of the time and circumstances that they spend with the father.
The father properly concedes that the children’s needs have been appropriately looked after by the mother and the reports of Ms G and the family consultant highlight the strength of their emotional attachment with her.
The mother remains concerned as to the extent that the father is prepared to commit to more than a cursory involvement in the children’s education. The father argues that he wants to be more deeply involved in the children’s education, but the mother has resisted his attempts. I prefer the evidence of the mother to that given by the father. By his own admission, the father left the exigencies of parenting primarily to the mother. He has attended school on only a few occasions and it could not be said that he has had a significant presence.
The parties are also in conflict as to the manner in which the children’s health should be managed. The father attempted to minimise the importance in terms of health management of his belief in alternative medicine and alternative therapies. His unilateral decision to have the children’s blood taken was not a benign exercise with its only focus to establish the children’s blood groups.
I accept the mother’s evidence of her conversation with X that suggests the father wanted to keep secret from the mother that he had not properly administered the prescribed antibiotic medication.
The note in the collection tin had the potential to significantly embarrass the child and whilst not directly relevant to the parenting issues that need to be considered, it nonetheless served to reinforce the mother’s mistrust of the father that he is not genuine in his stated position that alternative therapies are at best only complimentary to mainstream medicine.
I accept that the father does seek to be more involved in the care and lives of the children than he was with his children from a former relationship. His evidence lacked insight as to how shared care and equal time would work to the benefit of the children in circumstances where the communication with the mother is poor, there has not been any change in the level of mistrust that each of the parties have towards the other and of greater importance, any acknowledgement that the transition from the current parenting arrangements to equal time may well be a bridge too far for the children.
The extent to which each of the parties have maintained the children
The focus of the proceedings has not been the financial circumstances of the parties. It is however an important issue. The father maintains his employment as a self-employed tradesman. The mother maintains her employment as a manager in the community sector. She has had secure and modestly remunerated employment since her arrival in Australia. For his part, the father has historically received substantial income, but of recent years he asserts that his income is now much reduced.
One of the basis for the mother’s application to relocate is that she considers that her financial position would be much improved in Country D. She hopes that she will be able to restore her qualifications and she is of the view that there is likely to be better recognition and therefore enhanced employment prospects of her degree being recognised in Country D, whereas it is of little or no value in Australia.
No evidence has been presented however as to any definite employment prospects, nor the level of remuneration that the mother could potentially receive. The Court is not able to assess the mother’s likely financial position were she to return to Country D in the absence of evidence as to a reasonable income expectation and an assessment of living costs. I have little doubt that because of the mother’s obvious work ethic and industrious presentation that she will find work, but it is not certain that her financial circumstances would be better improved in Country D than they are here.
The father’s evidence as to his current employment status and income did not instil confidence that he would willingly assist in the children’s ongoing expenditure. He was challenged as to his current income and questioned as to why he would persist as a self-employed tradesman rather than look for work that would be more remunerative.
I am not persuaded that the father approaches his financial obligations with respect to the children in the same manner as the mother.
The significant change in the amount of Child Support paid by the father pursuant to the assessment has at least in part meant that the children and X in particular will not be able to continue in his current school as and from 2019.
As the family consultant noted, X was particularly concerned, not about the future parenting arrangements, but rather, at the prospect at the change in school being required.
The mother impressed as having considered and explored all reasonable options that may have enabled the children to remain at their current school. The father was both unconcerned and lacked any interest in exploring possible avenues for continuity of the children’s education.
The necessary move of the children from their current school is a significant factor. The family consultant considers that stability for these children is important and was not supportive of the children’s care being shared by the parties, in particular where will also be a dramatic change to X’s circumstances in moving school.
It seems that the least disruption to the children’s lives is likely to better serve their best interests.
Likely effect of the change in the children’s circumstances
If permitted to relocate to Country D there will be a clear change in the children’s circumstances. The mother’s proposal is that the children would live with her and would see their father for a period of up to six weeks at least every second year and if he chose to travel to Country D, then every year. The mother also considers that there is a possibility that the father may well return to Country D.
I am satisfied from the father’s evidence that he has no present or future intention or plan to return to Country D. Both parties have been in Australia for a significant period of time and are Australian Citizens. The father accepts that the mother has been homesick since about 2010, but has nonetheless managed with employment and the primary parenting of the children. The mother concedes that the father has not expressed any wish to return to Country D, but possibly may have done so if she had determined that she would remain and not returned to Australia. The father has re-partnered and his evidence is strongly supportive of his intention to remain in Australia.
There will therefore be a dramatic change in the children’s circumstances if relocation is permitted.
The evidence does not support a finding that the father either has the financial wherewithal or the intention or desire to return to Country D with the frequency promoted by the mother.
I have little doubt that the mother would make the children available to the father on any occasion that he were to visit them. The concern is that the only reliable evidence of the extent of the relationship that would be maintained between the father and the children is during the period that the mother proposes to return with the children to Australia to coincide with the Country D long summer holidays.
It is reasonable to summarise the position of Ms G, but also the more direct concerns of the family consultant, that the mother’s proposal would represent and cause a substantial change in the children’s relationship with the father. He would not be able to engage in any day to day activities with them. He could not participate in their sporting, school-based or extra-curricular endeavours. He would not be involved in special events that may occur and would not be able to celebrate any academic social or sporting milestones that the children are likely to attain. Whilst he would not be a stranger to X, the extent to which Z would maintain a recognition of the father is an unknown. Z is five years of age and if an order were to be made as promoted by the mother, unless the father visited the children in Country D, they would not see him until 2020 when X would be ten and Z six years of age.
The deficiency in the family assessment is that the effect to the children of not seeing their father for an extended period of time was not explored. It is reasonable to opine that the children’s relationship with him is unlikely to be enhanced by a long period of absence of physical contact and the extent to which this may adversely impact on the children is not known,
In Mazorski & Albright [2007] FamCA 520 Brown J considered at [26] that a “meaningful” relationship was synonymous with a “significant” or “important” relationship.
I do not consider that the expression “meaningful relationship” is satisfied by a relationship whereby the children remember their father but with no more expansive level of involvement.
The mother’s proposition is that she is homesick and if permitted to return to Country D she will be less anxious, suffer from less depressive symptoms and given her perception that she is the children’s primary caregiver, her psychological wellbeing directly impacts and benefits the children.
To some degree I accept the mother’s contention. The evidence supports her position of having been the primary carer and I am of the view that the interests of the children are likely to be better served by the mother’s primary care continuing.
I am not however able to assess whether if the mother is not permitted to relocate the extent to which, if any, she will suffer psychological detriment and if so, how that will impact on her parenting of the children. The mother did not call evidence that would assist the Court in that determination. The family consultant was neither qualified nor was it appropriate for her to undertake any psychological assessment of the mother and the best that could be promoted by the family consultant is that if the evidence supported the view that the mother’s care of the children may be compromised by her not being able to relocate their residence to Country D, then, given that the children’s interests are best served by remaining in the primary care of the mother, careful consideration should be given to the mother’s proposal to relocate.
That evidence is not available. The mother did give evidence that she had gained assistance from a psychologist involving 10 therapeutic sessions. She stopped the therapy because she considered she had gained assistance from the counselling and had developed a level of resilience.
The objective indicators are positive. The mother is in full-time employment until at least 2020. Her evidence is that if required to remain in Australia she will do so and will fulfil her obligations to properly care for the children. She will not leave the children in Australia with the father. Moreover, the mother impressed as a high functioning individual. She was well organised and had a level of precision and organisation in terms of her presentation to Court.
It may be that there are significant psychological issues which impact upon the mother and may thereby impact on her ability to parent the children. If they are present, they were not the subject of evidence and where there are other indicators that the mother functions perhaps unhappily but nonetheless at a high level, I am not able to accept her evidence as to the extent to which she considers she displays psychological symptomology with resultant sequelae.
The practical difficulties and expense of the children spending time with each of the parties
If permitted to relocate, the mother considers that she is able to fund the children returning to Australia for a six week period every two years. She is not able to assist the father’s travel to Country D and left to his resources it is difficult to find that he would be able to travel to Country D in the intervening year and for the period of time that is proposed by the mother. The father also argues that the mother’s proposal would see the children in Australia during the Country D long school holidays, but this period in Australia represents a busy time for the father. It would therefore be financially difficult for the father to take up to six weeks off from his employment to look after the children, albeit that it would be in every second year. The same argument however applies to the ability of the father to spend up to six weeks in Country D in the intervening year.
The father has not presented evidence that would demonstrate he has the financial ability to support the children on an equal time basis.
The more certain financial arrangements for the ongoing care of the children are presented by the mother. She has reliably assumed the financial obligation for the children with limited future assistance by the father and accordingly this must impact on the children’s care arrangements and provide some support for the mother’s contention that she should retain their primary care.
Capacity of the children’s parents to provide for their emotional and intellectual needs
There is no suggestion in either the report of Ms G or that of the family consultant that the father is not important to the children and should play only a limited role in their lives. Whilst there are concerns that the father may be attempting to minimise the extent to which his belief in alternative therapies and lifestyle is a feature in his home, there is nothing in the interaction observed between the children and either of the parties which would suggest that the father’s relationship with the children is unimportant.
I am satisfied on the evidence that the mother maintains a significantly stronger emotional attachment with the children and whilst I consider that the father is also able to provide for the children’s emotional and intellectual needs, I suspect that this will occur with some reliance on his partner, but primarily on the assumption that the mother has created a stable and secure parenting base for the children.
I am not satisfied that the father has presented evidence that would establish his potential to appropriately parent the children should be considered as the equal of the mother.
Parental responsibility
The evidence was strongly supportive of the mother retaining parental responsibility for the children’s education and their health management. I have considered the primary and additional factors in s 60CC of the Act in determining what orders by way of parental responsibility should be made.
There can be no uncertainty or compromise in respect of the children’s health. The mother’s evidence left no doubt that she is a capable and responsible parent. The father acknowledges this to be the case. The father however did not impress that he was prepared to follow the reasonable direction of the mother and there is a strong suspicion that the father may engage the children in his view of what would constitute appropriate treatment of any health issues affecting the children not as an adjunct to mainstream medicine, but as a preferred alternative.
Again, the issue is one of certainty for the children and the Court being satisfied that they will not be placed in any position of unnecessary conflict.
I am also satisfied that the management of the children’s education has to date rested with the mother. She has discharged that obligation to the highest level. The information from X’s school is that he displays significant intellect, a high level of aptitude for his studies and has good social skills and relationships with his peers. There is no reason to suggest that Z will be any different from X as he grows older.
The father has not had the same level of involvement with the children’s schooling and there appears to be a somewhat cavalier presentation by him about the current predicament for the children, but in particular X in terms of the realisation that the child will need to attend a new school in 2019.
I consider that the children’s best interests are promoted by the mother retaining sole parental responsibility for their health and education, but in respect of other aspects the parental responsibility should be shared.
CONCLUSION
In the circumstance I do not consider that the mother’s proposal for the children to relocate to Country D is in their best interests. I am not satisfied that the mother’s ability to care for the children if her application is refused will be detrimentally impacted.
The children will benefit from an ongoing relationship with their father. Without the Court being able to assess the extent of detriment to the mother’s ability to parent the children if her application is refused, the evidence supports a finding that the mother’s proposal would fundamentally change the children’s relationship with their father and could not be considered “meaningful”, “substantial”, or “important”. I propose therefore to order that the parties have shared parental responsibility save and except for the children’s health and education which will remain the sole responsibility of the mother.
I propose to increase the children’s time with the father and to better define the arrangements during school holiday periods.
Neither party objects to the children travelling overseas with the other and I will fall in generally with the position adopted by the parties, although there is no reason why overseas travel cannot occur during any period of time that the children are with either parent.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 8 November 2018.
Associate:
Date: 8 November 2018
Key Legal Topics
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Family Law
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Consent
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