Phelps and Wood
[2017] FCCA 187
•15 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHELPS & WOOD | [2017] FCCA 187 |
| Catchwords: FAMILY LAW – Final parenting orders – mother – primary carer – children experienced significant disruption to the times they spent with their father – mother proposes relocation of three children to (omitted) NSW – relocation opposed by father who seeks children remain in (omitted) Victoria – children settled in (omitted) – children’s wishes to remain in (omitted) – neither parent wanting to stay in (omitted) long term – mother wishes to pursue relationship with new partner in (omitted) and intends to marry – father willing to consider a move – father’s inquiries about work in (omitted) not fully investigated – mother is competent and able parent – father lacks insight into impact of his absences on children – parties experience conflict in their parenting relationship – no open lines of communication – children have a loving relationship with each parent – both parents agree to an order for equal shared parental responsibility – Court’s obligation to consider children spending equal time – not sought by the parties and neither reasonably practicable nor in the children’s best interests – Court’s obligation to consider children spending substantial and significant time – neither reasonably practicable nor in the children’s best interests – concerns raised by family consultant regarding need for children to cement their relationship with their father in particular Z – need to delay relocation – consideration of section 60CC factors – adequacy of proposals for children to spend time with each parent – meaningful level of relationship – interim and final orders which are both reasonably practicable and in the children’s best interests. |
| Legislation: Family Law Act 1975, ss. Part VII, 65D, 60CA,60CC, 60CC(2), 60CC(2A), 60B(1), 60B(2), 61DA (1), 61DA (2), 61DA (4), 65DAC, 65DAA (1), 65DAA (5), 65DAA (2), 65DAA (3) |
| Cases cited: Sayer & Radcliffe and Anor [2012] Fam CAFC 209 |
| Applicant: | MR PHELPS |
| Respondent: | MS WOOD |
| File Number: | MLC 922 of 2011 |
| Judgment of: | Judge Tonkin |
| Hearing dates: | 11 and 12 January 2017 |
| Date of Last Submission: | 12 January 2017 |
| Delivered at: | Canberra |
| Delivered on: | 15 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoult |
| Solicitors for the Applicant: | Heinz & Partners |
| Counsel for the Respondent: | Mr Pavone |
| Solicitors for the Respondent: | Neville Wilkinson Frawley |
| Mr Combes |
| Kordell Lawyers |
ORDERS
All previous parenting orders with respect to the children X born (omitted) 2007, Y born (omitted) 2008 and Z born (omitted) 2009 (“the children”) be and are hereby discharged.
The parties have equal shared parental responsibility for the children.
The children live with the mother.
On and from the first day of the December 2017/January 2018 school holidays in Victoria, the mother be permitted to relocate the children’s residence to (omitted), New South Wales. Until then, the mother is restrained from moving the children’s residence from (omitted) Victoria without the father’s written consent.
The children spend time with the father as follows:
5.1Until the first day of the December 2017/January 2018 Victorian school holidays:-
(a)during school terms on each alternate weekend from 7 pm Friday to 7 pm Sunday with such time to extend to the commencement of school on Monday in the event that the father has a rostered day off on Monday;
(b)for one half of each of Terms 1, 2 and 3 school holiday periods in Victoria at times to be agreed between the parties and failing agreement the first half;
(c)such other time as agreed between the parties;
(d)alternate weekend time is suspended during all school holiday periods with the alternate weekend pattern resuming during school term as if the holidays had not occurred; and
(e)changeover shall occur at (omitted) Police Station unless otherwise agreed by the parties in writing, with the father to collect the children from the mother at the beginning of time and to return the children to the mother at the conclusion of time.
5.2From the first day of the December 2017/January 2018 Victorian summer school holidays:-
(a)in Terms 1 and 3 of the NSW school holidays from 12noon on the first Saturday of the school holidays until 6pm on the second Sunday of the school holidays with the mother to deliver the children to the father at her expense to the (omitted) Police Station (or such other changeover place as may be agreed in writing between the parties) at the commencement of time and with the mother to collect the children from the father at (omitted) Police Station (or such other changeover place as may be agreed in writing between the parties) at the conclusion of such time;
(b)in Term 2 of the NSW school holidays from approximately 6.40 p.m. (the time being approximate and subject to flight availability and arrivals) on the first Friday of the school holidays until 5pm on the second Sunday of the school holidays with the children to fly from (omitted) to (omitted) Airport and return, with the father to collect the children from (omitted) Airport at the commencement of time and return the children at the end of time to (omitted) Airport in sufficient time to catch the returning flight;
(c)in the long summer holidays in December 2017/January 2018 for the last three weeks of the NSW school holidays concluding on the last Friday of the school holidays and each alternate year thereafter with the children to fly from (omitted) to (omitted) Airport and return with the father to collect the children from (omitted) Airport at the commencement of time and return the children at the end of time to (omitted) Airport in sufficient time to catch the returning flight;
(d)in the long summer holidays in December 2018/January 2019 for the first three weeks of the NSW school holidays commencing at approximately 6.40pm (the times being approximate and subject to flight availability and arrivals) on the first Friday of the holidays and each alternate year thereafter with the children to fly from (omitted) to (omitted) Airport and return with the father to collect the children from (omitted) Airport at the commencement of time and return the children at the end of time to (omitted) Airport in sufficient time to catch the returning flight; and
(e)in the event that the overlapping week in the term holidays in Victoria and NSW is not the first week of the NSW school holidays then the father be permitted to elect to spend the second week of the NSW school holidays rather than the first week.
5.3During NSW school Terms commencing 2018:
(a)on the second and sixth weekends of each term from 7pm Friday until 5pm Sunday such time to take place in the (omitted) area with the father to collect the children from the mother at the commencement of time and return the children to the mother at the conclusion of time with changeover at the (omitted) Post Office (omitted), NSW unless otherwise agreed in writing between the parties;
(b)during the NSW school terms on the fourth weekend of each school term from approximately 6.40pm. Friday to 5pm Sunday (the time being approximate and subject to flight availability and arrivals) such time to take place in Victoria with the children to fly from (omitted) to (omitted) Airport and return with the father to collect the children at the commencement of time from (omitted) airport and return the children to (omitted) airport at the conclusion of time in sufficient time to catch the returning flight; and
(c)in the event that the father is able to travel to (omitted) at other weekends than specified in these orders he be permitted to spend such weekends with the children in (omitted) upon giving the mother 14 days’ notice of his intention to spend time.
The children will communicate with the father as follows:
(a)by telephone or skype each Sunday, Tuesday and Thursday at 7.00pm with the father to initiate the calls to the mobile phone purchased by the mother for the children;
(b)to facilitate order 6 (a) above the mother will purchase a mobile phone for the children and the mother will provide the father with the relevant number and keep him advised of the relevant number at all times; and
(c)at such other times as may be agreed between the parties.
The mother will purchase a book to be used as a communication book between the parents and the parents shall include in that book all matters relevant to the children including but not limited to medical issues and/or educational issues (such as notices about parent teacher interviews, assemblies etc) such communication book to be delivered to the father at the commencement of the time he spends with the children and to be returned to the mother at the conclusion of the time he spends with the children.
Prior to the children relocating to (omitted):
(a)the father and Z shall participate in non–reportable attachment based play therapy with Ms V or one of her associates at (omitted) Family Counselling in (omitted);
(b)the mother shall participate in Family Therapy with Ms V or one of her associates to support Z’s relationship with her father;
(c)the mother, X and Y shall participate in non–reportable Family Therapy with Ms V or one of her associates at (omitted) Family Counselling in (omitted) to enhance open communication in their relationship;
(d)X shall participate in non–reportable individual therapy with psychologist Ms M or one of her associates to learn to manage and express his emotions and the parents shall share the cost of any treatment.
Each party is at liberty to obtain from the children’s schools at that party’s expense copies of any reports, photographs, newsletters or other information usually provided to the parties.
Each party shall keep the other informed of his or her current residential address and contact telephone numbers and an email address.
The parties shall attend mediation in the event that they are unable to reach agreement as to which parent is responsible to pay for the travel and accommodation costs (including flights) for the father and the children to spend time together following the children’s relocation to (omitted) noting the mother’s commitment to the father utilizing his child support payments to facilitate spending time with the children.
The order appointing the Independent Children’s Lawyer be discharged.
The parties be at liberty to apply with respect to the implementation of these orders.
Otherwise all extant applications be dismissed.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable to brief Counsel to appear.
NOTATION:
A.To facilitate the father spending time with the children between (omitted) and (omitted), Victoria the mother agrees that “the father receive 100% credit against all money he spends by way of air fares and accommodation to see his children.”
IT IS NOTED that publication of this judgment under the pseudonym Phelps & Wood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 922 of 2011
| MR PHELPS |
Applicant
And
| MS WOOD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 11th and 12th January 2017 the Court heard competing applications for parenting orders. The primary issue between the parties was whether the Court should make orders allowing the three children of the relationship X born (omitted) 2007, Y born (omitted) 2008 and Z born (omitted) 2009 (“the children”) to relocate from (omitted) to (omitted) or whether the children should remain living in (omitted).
The parties commenced their relationship in (omitted) 2005 and separated on 18th November 2009. Throughout the relationship the mother was primary carer for the children and continued in that role following separation. The time the father spent with the children following separation was inconsistent, in part due to the father electing not to spend time with the children for various reasons and in part due to the mother suspending the father’s time. There were two extended periods where the father did not spend time with the children the first between September 2013 and April 2014 and the second between April 2015 and June 2016. The father initiated proceedings on 25th May 2016 upon learning that the mother intended to relocate with the children to (omitted).
At the commencement of the trial Counsel for the parties and the Independent Children’s Lawyer agreed that the main issues to be determined included the mother’s capacity to provide for the children to spend time with their father in circumstances where she sought to relocate some distance away, the mechanism for ensuring that the time the children spent with their father was workable, issues around child support and the attitude of each of the parents to parental responsibilities. Past concerns regarding the mother’s use of marijuana and the father’s consumption of alcohol were not in issue at trial nor was it suggested that these issues impacted on either parent’s capacity to care for the children.
Interim orders
Interim parenting orders were made by consent on 2nd June 2016 in the Magistrates Court at Ballarat for the children to live with their mother and spend time and communicate with their father and the matter was transferred to the Melbourne Registry of the Federal Circuit Court. On 18th July 2016 Judge Curtain made an order for the appointment of an Independent Children’s Lawyer, an order that the parties and children attend upon a Family Consultant and that a report be provided to the Court. Interim orders were made by consent which effectively extended the father’s alternate weekend time and continued his communication with the children by telephone whilst the children continued to live with their mother. On 30th November 2016 Judge Riethmuller listed the matter for trial and made orders for the children to spend time with their father during the Christmas school holidays in addition to extending his alternate weekend time in the event he was able to secure a rostered day off on the Monday. The parents had generally complied with Court orders.
The legal principles
Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with orders relating to children. Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper. Section 60CA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.” The matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the Act. Those matters include primary considerations and additional considerations. There are two primary considerations (section 60CC(2) of the Act) namely:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Subsection 60CC(2A) of the Act directs the Court in applying the primary considerations, to give greater weight to subsection 60CC(2)(b) which relates to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Having regard to section 60CC(2A) it is necessary to consider the objects of the legislation pursuant to section 60B(1) which include the following:
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The principles which underpin the objects are set out in section 60B(2) of the Act namely:
(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 additional considerations under section 60CC of the Act in so far as they are relevant to the current matter include a consideration of the views expressed by a child and the weight to be afforded to those views, the nature of the relationship of each child with each parent and any other person, the extent to which a parent has taken or failed to take the opportunity to participate in making decisions about major long term issues and to spend time and communicate with a child, the extent to which a parent has fulfilled or failed to fulfil parental obligations to maintain a child, the likely effect of any change in the child’s circumstances including any separation from a parent or other person, the practical difficulty and expense of a child spending time and communicating with the other parent and the impact of this on a child’s ability to maintain a relationship, the capacity of each parent to provide for a child’s emotional and intellectual needs and the attitude of each of the parents to a child and to his or her responsibilities as a parent.
In Sayer & Radcliffe and Anor [2012] Fam CAFC 209 Full Court comprising Faulks DCJ, May & Ainslie – Wallace JJ discussed the approach to be taken when a parent is seeking to relocate. The Court said at [47] “It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles [2007] FamCA 1230 at [72] to [73], Palmer & Hammer No 2 [2011] FamCAFC 196 at [28]). A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer No 2 [2011] FamCAFC 196 at [76] and Morgan and Miles [2007] FamCA 1230 at [80] to [81]). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.”
Equal shared parental responsibility
Both parents in this case seek an order for equal shared parental responsibility. Pursuant to section 61DA(1) of Act the Court is required to consider whether it is in the best interests for parents to have equal shared parental responsibility for a child. Under subsection 61DA(2) of the Act the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in (a) abuse of the child; or (b) family violence.
Under subsection 61DA(4) of the Act the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility.
There is no evidence in this case of abuse or family violence which would militate against an order for equal shared parental responsibility. Both parents see as important the engagement of the other parent in decisions which affect the children long term and seek an order for equal the shared parental responsibility. Section 65DAC of the Act provides that an order for equal shared parental responsibility requires the parties to consult with one another about major long term issues and to make a genuine effort to come to a joint decision about any relevant issue. “Major long term issues” is defined in section 4 of the Act and includes issues relating to a child’s education, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.
Notwithstanding that in the past the father has not been fully involved in decisions concerning the children and at the time of trial the parties’ communication was poor, both parents indicated that they were motivated to improve on this in the future. The Court intends to make an order for equal shared parental responsibility as sought by each of the parents given the parent’s express commitment to maximising the involvement of the other parent in the future.
There are a number of consequences which flow from the making of that order. Section 65DAA(1) of the Act provides that subject to subsection (6) if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide for the child to spend equal time with each of the parents.
Whether it is “reasonably practicable” is to be determined by reference to matters set out in section 65DAA(5) of the Act. That section provides that in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the Court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The High Court in MRR & GR [2010] 240 CLR 461 determined with reference to subsections 65DAA(1) and (2) of the Act that it was a statutory pre-condition that a Court consider both whether an order for equal time and/or substantial and significant time was both reasonably practicable and in a child’s best interest before an order for equal time and/or substantial and significant time is made. The Court said at [13] “It is only when both questions are answered in the affirmative that consideration may be given under paragraph (c) to the making of an order.”
The High Court indicated in MRR & GR (supra) at [15] that Courts were required to consider “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 section 61DA(1) is not determinative of the question arising under section 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
Neither parent is seeking an order for the children to spend equal time with the father nor is such an order reasonably practicable. The father historically has found it extremely difficult to juggle his work commitments with regularly spending time with the children. The father’s commitment to regularly spending time with the children is also in question. His long absences from the children have no doubt impacted adversely on them. The Court considers it is neither reasonably practicable nor in the children’s best interests to make an order for the children to spend equal time with their parents.
The pivotal issue for the Court in this case is whether the Court should make an order for substantial and significant time as sought by the father and referred to in his case outline. Under section 65DAA(3) of the Act a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends and holidays;
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The father’s proposal to spend time with the children will only be reasonably practicable if the mother remains living in (omitted). The mother has indicated a desire to move to (omitted). If she is permitted to move, the orders sought by the father are not reasonably practicable. Neither parent was wedded to the idea of remaining in (omitted) should the mother not be permitted to relocate the children’s residence to (omitted). The parents may agree to alter the arrangements for the children to live in another area in Victoria. That issue was not agitated before the Court both parents simply expressing dissatisfaction living in (omitted)[1]. The parents’ current and future capacity to communicate was also in issue at trial. The matters are discussed later in this judgment.
[1] . The mother indicated a desire to move out of (omitted) should she not be permitted to relocate the children’s residence to (omitted). The father indicated he too was not particularly keen on living in the (omitted) area and should the mother be permitted to relocate with the children to (omitted), he would consider moving to Melbourne and closer to his place of work. Neither parent sought any orders in this respect.
Although the best interests of a child is the paramount consideration this is not the sole consideration for the Court. How and where a parent intends to live and each parent’s proposals for the future are matters the Court is required to take into account in making a determination but the latter does not override the best interests of the child.
As Judge Brown said in Clement & Clement [2014] FCCA 1664 at [346] “the fundamental task for the court is to determine bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B what is the best outcome for any child concerned, now and in the future.”
Proposals
The father proposed that in the event that the mother and children remained in (omitted), he sought orders which allowed him to spend alternate weekends and holiday time inter alia with the children. In the event that the mother chose to move to (omitted) without the children the father sought an order that the children live with him in (omitted). If the mother was permitted to relocate the children’s residence to (omitted) he sought time during school holidays.
The mother proposed that she be permitted to relocate with the children and that the father spend time with the children mid-term and during school holidays. She gave evidence that she would not relocate to (omitted) without the children and in those circumstances the current orders should continue.
The evidence
Documents relied on
The applicant relied on the following documents: his initiating application filed 25th May 2016, two affidavits filed by him on 25th May 2016 and 3rd October 2016, an affidavit filed by Ms S on 25th May 2016 (the maternal aunt), an affidavit by Ms H filed on 12th July 2016 (the paternal grandmother) and a financial statement filed by him on 27th October 2016.
The respondent relied on the following documents: her response filed on 2nd June 2016, four affidavits filed by her on 2nd June 2016, 1st July 2016, 14th July 2016 and 4th November 2016, an affidavit from Mr P filed on 8th November 2016 (the mother’s fiancé), an affidavit from Ms R filed 29th June 2016 (the maternal grandmother), an affidavit from Ms M filed 29th June 2016, an affidavit from Ms E filled 30th June 2016 (the mother’s sister) and the mother’s financial statement filed on 3rd November 2016.
Given the manner in which the matter proceeded with Counsel for both parties indicating that only the parties and Mr P were required for cross examination in addition to the Family Consultant none of the affidavit evidence deposed to by other witnesses has been tested. As such, the affidavits of witnesses who were not cross examined will be given limited weight in the circumstances noting that there was a significant narrowing of the issues by the parties’ legal representatives at the commencement of this matter and that most of the issues raised in the affidavits of supporting witnesses were not agitated during the proceedings. This approach was of considerable assistance to the Court.
Facts not in dispute
The mother is 35 born on (omitted) 1982 and the father 43 born on (omitted) 1973. The parties began cohabiting on (omitted) 2005 and did not marry. They separated on 18th November 2009. The three children from the relationship all attend school in (omitted). X is 9 years old, Y is 8 years old and Z is 7 years old. The father has a daughter from another relationship A who will turn 14 in February 2017.
At the time of the proceedings the mother and children were living in a 5 bedroom house owned by her mother in (omitted), with the children attending school in that area. She was employed at a (omitted) for 15 hours per week from 9am to 3pm three days per week. She had commenced a relationship with Mr P in early 2016, they became engaged in (omitted) 2016 and intended to marry in (omitted) 2017. She had commenced plans to relocate to NSW sometime in 2016. The father had discovered the mother’s intention to relocate through the maternal aunt Ms S.
The father was renting a 6 bedroom home in (omitted) about an 8 minute drive from (omitted). He was a (occupation omitted) working in the (omitted) industry and his hours of work were variable. His work was largely based in Melbourne and required him to commute. He had recently commenced a new contract but prior to that had been out of work for a month. He agreed he commenced proceedings upon discovering the mother intended to relocate to NSW with the children.
Assessment of the evidence
The Court had the benefit of reading the affidavit evidence filed by the parties and their supporting witnesses and observing the parents and the mother’s fiancé in the witness box. The Family Consultant also attended in person and was cross examined by Counsel for the parties and the Independent Children’s Lawyer.
The father’s evidence
The father claimed to have spent time regularly with the children from 2009. This was denied by the mother. He admitted he was very distressed and depressed for a couple of years following the end of the relationship and he sent “too many messages to Ms Wood during that period and it would have been difficult for her to deal with.” He told the Family Consultant that he did not conduct himself well in the three years following separation as he was “confused and heart broken.” He described his behaviour in sending the mother too many messages and letters as “pathetic.”
In 2011 and 2012 he obtained employment in Western Australia in the (employment omitted) and worked 4 weeks on and one week off. He said he had a house in Melbourne and would try and see the children each time he was back but acknowledged he did not always manage this for various reasons.
He moved to (omitted) in 2013 in the hope of spending more time with the children. He alleged that the mother did not permit him to spend time with the children between November 2013 and April 2014 accusing him of not showing her any respect and leaving the children unattended which he denied. He claimed that about this time the mother was spending time with Mr J and he was concerned with the man’s constant use of marijuana. When his time was suspended this coincided with his protests to the mother regarding Mr J and this was the reason the mother stopped him from seeing the children.
The father agreed that the mother initiated mediation in 2014 and parenting plans were drawn up. By about July 2014 the father was spending time with the children on alternate weekends.
A central issue in the case was the father’s belief that the mother was alienating him from the children. He claimed in his affidavit that the mother refused to follow the parenting plan and did not allow any increase in time on the basis that the father had not paid proper child-support. The mother denied this was the case. The father agreed that there were some periods where his child-support payments were inconsistent when he was not in employment.
He did not see the children between 1st May 2015 until after orders were made in June 2016 except for one time when he visited the school in about August 2015. He wrote to the mother on at least three occasions the first being in May 2015 advising the mother that he had been unable to spend time with the children the previous weekend as he was pulled up for unlicensed driving. He told the mother he was unaware he had been suspended but thought it would be best if he did not see the children until his licence was restored. He said he sent the mother a second letter which he had been unable to locate and a third letter dated 28 November 2015 asking whether the mother was considering letting him see the children. In that letter he accused the mother of alienating him and his family from the children and referred to her as a “parental alienator”. He blamed the mother for the fact he was not seeing the children. He complained that the only response he ever received from the mother was a note on a diary which read “go fuck yourself loser”. The father deposed to sending another letter dated 23rd February 2016 to the mother alleging she had “denied him access to his children”. That letter (annexed to his affidavit) was an outpouring of the father’s grief in not seeing his children which he said was the fault of the mother. This issue was canvassed extensively in cross examination.
It was not until 25th May 2016 that the father filed his initiating application. He sought that the matter proceed on an urgent basis ex parte if necessary notwithstanding he had sent through his lawyer a letter to the mother in December 2015 seeking a reinstatement of time, but apparently had not pursued this. He sought orders restraining the mother from relocating with the children to (omitted) and for time with the children.
In the notice of the risk filed by the father on 25 May 2016 he alleged that the children had been at risk of family violence and that the mother’s former partner had smashed windows on her car and it was possible that this man had made threats to burn down the house the children lived in and that the children were exposed to the mother’s marijuana use. These matters were not pursued at trial.
In relation to the father’s irregularity in spending time with the children between May 2015 and June 2016, he claimed he had no means of contacting the mother as she would not answer his calls and had blocked him on Facebook however he told the Family Consultant he was aware his mother had a contact number for the mother. He complained that the mother was inflexible if he needed to make changes to arrangements for the children and she did not respond to him in a timely manner.
The father raised concerns about the mother’s new partner indicating that the mother “barely knows (him)” and that “she had met him recently on two occasions”. However he acknowledged that he really did not know Mr P at all and understood that the mother wanted to get on with her life. He raised concerns about the mother’s ability to facilitate his relationship with the children should she relocate to (omitted) and the practical difficulty and expense in spending time with them.
The father said and the Court accepts that he has a close relationship with his daughter A[2] who was soon to turn 14. He and A’s mother have been able to come to an arrangement regarding the time A spent with her father without Court orders which had been workable until quite recently. A lived with her mother in (omitted) and spent time with her father regularly. A was one of the reasons the father gave as not being in a positon to move to (omitted) as in his view that would make his relationship with A unworkable.
[2] A born (omitted) 2003
Mr Phelps was cross examined by the mother’s Counsel regarding his conduct at and following separation. He agreed that he threw a glass at a cabinet but said this did not occur at separation. He said on 18th November 2009 (the date of separation) there was a dispute between the paternal grandfather and the mother’s brother over the condition of a house the mother’s brother was renting from Mr Phelps Senior. The father claims he raised this with the mother and told her to get her brother to give Mr Phelps Senior access to the house and the mother threw a piece of meat at him and an argument ensued. The father left the house and when he returned he had been locked out. The father said he was going to drive her car away and the mother came running out and grabbed a car jack and was trying to smash the back window of the car. He then grabbed the car jack off the mother and threw it through the front window. He claims the mother smashed the back window of the car and he smashed the front window. The mother denies this version of the incident. The Court is unable to attribute responsibility for the incident to only one parent, both parties conduct was completely inappropriate. It remains unclear whether the children were privy to the incident.
The father agreed that following separation he drove the mother’s (omitted) Mitsubishi to Queensland where he stayed with family for about two weeks and gave the car to his sister. He denied he left the mother without a car (with three children to care for) and that she had to borrow money to buy another car. I find on the contrary he deliberately removed the car from the mother to inconvenience her without regard to the children who were then very young.
He agreed that for the next two to three years following separation he “bombarded” the mother with inappropriate messages and was obsessed with getting the mother back (reconciling). He agreed that in 2010 the mother took out an intervention order against him for 12 months as a result of his conduct.
It was suggested by Counsel that the father chose to take a job in the (omitted) in WA in 2011 putting distance between him and the children. He said his intention was to provide for his family and he advised the mother of this. He agreed that between 2011 and 2012 he saw the children irregularly and not during his “off week” as he had deposed to in his affidavit. He blamed the mother for this irregularity saying he was not allowed to see the children on his return from WA and would visit the children and an argument would ensue and he would not be allowed to see the children. He said the arguments were not related to financial matters but was unable to say what the arguments related to. I find the father’s evidence unconvincing on this issue. The mother’s evidence (which I accept) was that he rarely saw the children during the time he worked in WA and would often cancel due to “exhaustion” however he also took holidays away (to (country omitted)) without the children.
Whilst working in (employment omitted) he continued to send the mother messages about “wanting her back.” In about February 2012 he sent the mother messages about “walking away” with an intention to “get out completely” and said “I know the kids will search me out when they are ready.” The father agreed he had also sent the mother messages complaining that she had stopped him from seeing the children for three months however he did not include that in his affidavits. Though he blamed the mother for preventing him from seeing the children, on 16th June 2012 he sent her a message that he would not see the children “this time around” as he was exhausted and trying to save money.
Counsel for the mother questioned the father regarding the mother suspending time between November 2013 and April 2014 and asked the father what he did about this. He said the mother prevented him from seeing the children for the whole of November 2013. On 24th December 2013 she sent the father a message with her new phone number. There was an exchange of messages about when the father would be seeing the children with the mother responding that she thought he was working during the holidays and asked how long he planned to have them for. He did not reply until 2.13pm Christmas Day and said “Go to hell. Don’t ring. Don’t text. Just fuck off and die. You’re a selfish, miserable, ungrateful piece of shit.” He sent a further message “as much as you want me out of my kids life it’s not going to happen.” The father said he had always spent time with the children on Boxing Day and his parents were down from Queensland to join him. He and his parents did not see the children on Boxing Day. He subsequently wrote to the mother “from now on alternate everything Easter, Christmas, birthdays the whole lot. You can’t be trusted to be decent. Your sole (sic) is black as tar.” He sent a further message “thought about it long and hard. You’re an animal.”[3]
[3] See Exhibits M1 and M2
I formed the view that the father’s response to the mother on this occasion was abusive, immature and self-centred and disregarded how the children may have felt in missing out on spending time with him and the grandparents on this special day. The father generally lacked insight into how his conduct and the choices he made impacted on his children.
In his affidavit the father had said he had not seen the children at all between November 2013 and April 2014. He agreed however he spent two or three days with them from 27th December 2013 and again for a week in January 2014. He said he had forgotten about “the Christmas thing.” On 29th December 2013 the father asked to borrow the mother’s car so he could return A home. She agreed and dropped the car around to him. The father then kept the car failing to return it. I find that he did this primarily in retaliation to what he perceived to be the mother denying his contact on Boxing Day.
When asked what he did about seeing the children during this period he said he went to see a lawyer. It was the mother however who arranged for the parties to engage in mediation and a parenting agreement was drawn up[4] allowing the father to spend time with the children initially each Sunday. The father was consistent in spending time with the children and subsequently his time increased to overnight. A further mediation was convened and a second parenting plan was drawn up.[5] The plan provided the father with alternate weekend time with the children. The father spent time regularly with them until 1st May 2015 when he lost his licence.
[4] First Parenting Plan 24th March 2014 (Exhibit M4)
[5] Second Parenting Plan 31st July 2014 (Exhibit M5)
Regarding the next long period of absence between 1st May 2015 and June 2016 the father maintained that he had no way of contacting the mother though he told the Family Report writer that his mother had a contact number for Ms Wood. He was aware that changeover was to take place at (omitted) Police Station but did not think to leave a message at the station to advise the mother that he would not be there for changeover due to losing his licence. He agreed that the children would have been very distressed by his failure to turn up and collect them that day. He agreed he wrote a letter saying it would be best to wait until he got his licence back before re-instating time with the children.
It was put to the father that his letters to the mother had been returned unopened. He agreed that Ms S returned two of the letters he sent to the mother, unopened to him. He said he went to see a lawyer around Christmas 2015 who sent the mother a letter saying he was going to commence proceedings and the mother responded “bring it on.” He agreed he did not initiate proceedings until Ms S advised him that the mother was relocating with the children imminently so “I had to do something about it.” He agreed that he could have initiated another mediation during this period however he said “I’m physically and emotionally and mentally exhausted a lot of the time.” He accepted that there was a multitude of things he could have done but he did nothing at that time.
The father maintained in his oral evidence that the mother was alienating him from the children. He posted a comment on Facebook about parental alienation on 22nd January 2015[6] notwithstanding he had spent a week in the January 2015 school holidays with the children. On 26th August 2016[7] having commenced proceedings on 2nd June 2016 he posted the comment under the heading “Mr Phelps shared Father’s Justice photo” – “you can’t continue to lie to your child forever. One day you will have to explain to me why you hated the other parent more than you love them.” This was at a time the father was spending regular time with the children pursuant to Court orders. I find that there was no basis for the father’s allegations that the mother was a parental alienator.
[6] Exhibit M6A
[7] Exhibit M6B
The father explained to the Court that he did not know why he made the first post but acknowledged his intention was to suggest the mother was alienating the children from him. He agreed that he made the post to express how he felt. In relation to the second post he agreed that he held strong feelings about being the victim of alienation and that he still had those feelings at the time of the trial. The father was asked whether he had undertaken any of the courses recommended by the family consultant and he said he had not done so yet. He said he was hoping to “deal with this first and then look at all of that.”
He agreed that he had a fear that the mother was going to try and cut him out of the children’s lives. He had spoken to the children about the proposed move to (omitted) and said “if you want to go daddy will just let you go and I will try to get to see you as much as possible.” He said this is all laid at my feet because “if I don’t make it work then I’m pretty sure it will be dragged through the courts again and paying more money just to get – seeing my kids.” He said he told them “it’s going to be very hard but I will do my best.”
He confirmed that since he began spending time in June 2016 with the children after a long period of absence he had been able to re-establish his relationship with them. He accepted the proposition put by Counsel that his relationship with the children was now as strong as it had ever been, he added “it’s like it never happened.”
He said he had complied with Court orders and missed only one phone call when in fact he had missed three phone calls. He explained to Counsel that he did not know when the phone calls started or when he was supposed to call. He said he was not aware of the Court order as it was only emailed to him “last week” however he agreed with Counsel that he was actually in Court at the time the order was made and took part in negotiating the orders. The order provided for the father to call the children each Sunday and Tuesday between 6pm and 6.30pm.
The move to (omitted)
The father argued that the move to (omitted) would have a negative impact on his relationship with the children, that the reduction from eight nights to four to six nights a term was a “massive difference” and the children would no longer live “around the corner.” Counsel for the mother explored how frequently the father had participated in the children’s daily lives since moving to (omitted). He acknowledged that he did not know the name of any of the children’s school teachers and had never been to a parent teacher interview or made inquiries about when these were scheduled. He went to the children’s (hobby omitted) game on only one occasion. He said he was not allowed to be a part of their daily lives. When it was put to him that he blamed the mother for this lack of involvement he said that “well I work, it’s very hard when you don’t get home till 7pm or 8pm at night.” When asked about the time he was off work for three months he said he went to the school once and was not allowed to see the children and that he did not feel comfortable at the school because he considered it the mother’s domain. I reject the father’s assertion that the mother prevented him from being engaged with the children’s school or extra curricula activities. I find that the father made little effort to become involved with the children’s school and extra curricula activities at a time when the parents lived in close proximity.
Though the father applied for the children to live with him should the mother relocate alone to (omitted) he indicated that due to his current work commitments he left home between 4am and 5am and arrived back home after working in Melbourne between 6pm and 7pm. He said that if the children lived with him full time he would need to get a job in another town or find part time work. He had previously said to the Court that there was no work in (omitted). He agreed that he could not continue to work in Melbourne if the children lived with him full time. He did not agree that the children would be devastated if they were taken out of the care of their mother however he agreed Ms Wood was a good mother as far as the children were concerned.
Regarding the mother’s proposal that she relocate to (omitted), the father gave evidence that he had considered obtaining work in the (omitted) area however he said he had explored that option and there was no work there for him. He said that due to his financial circumstances he had not visited (omitted) or (omitted) to make inquiries about work. He had a friend in (omitted) who worked as a fly in fly out (occupation omitted). He said that was not a viable option for him as the (employer omitted) “is nearly bust.” I find that the father made only a cursory investigation into work available for him in the (omitted) area. He agreed however with the mother’s Counsel that he would consider going to (omitted) if he had to but he did not want to leave his daughter A. The father said he currently had the benefit of spending time with A on an ad hoc basis after work or taking her to a movie given the proximity of their homes. I note that A is not a child subject to the application before it. She will turn 14 in (omitted) 2017 and it is likely given her age peer relationships may become more significant to her than parental relationships. I find that the father will continue to ensure he has a meaningful relationship with A regardless of his circumstances as he has managed to do that to date.
The father said that if the mother was permitted to relocate to (omitted) he would be seeking holiday time and not weekend time. He indicated that having the children on weekends “is a bit cruel on them” given that the children suffer travel sickness and “the logistics.” Under cross examination he said he had always had difficulty arranging holiday time and in particular financially providing for the children during holidays. He agreed he did not press for school holiday time when the matter first came before the court in June 2016 though that formed part of his initiating application. He conceded in cross examination that whether or not the mother relocated to (omitted) that this would not impact on his ability to have holiday time with the children.
The father currently spent four or five weekends per term with the children (or about eight or 10 nights from 7pm Friday until 5pm Sunday) pursuant to Court orders. He agreed he could get to (omitted) Airport on Friday night by 6.40pm as he worked in Melbourne.
Counsel discussed the mother’s proposal with the father namely that she agreed to transport the children to Victoria on two occasions per year at her own expense. She offered to forego child support to enable the father to purchase return airfares for the children from (omitted) to (omitted) on two occasions per annum at a cost of $3,600. The father agreed that he had the capacity to purchase air fares if he did not have to pay child support. It was put to the father that without the obligation to the mother of child support in addition he would be able to fly to (omitted) on two weekends during term to spend time with the children for the weekend. He accepted this as a proposition however it was clear the father was opposed to that idea. The father is currently paying child support of $323 per week and if those payments were not made or a proportion of those payments used to fund the high costs of spending time, the father would be able to facilitate spending time with the children in (omitted). The father generally agreed with this proposition.
The father took issue with the mother moving to (omitted) based on her new relationship. He said the relationship was untested, and the mother’s new partner had never been in a relationship, had never had children and had two family members who were ill. He said “it sounds like a recipe for disaster.” However he agreed he did not know much about Mr P.
Concerns were raised by Counsel about the father’s attempt to influence the children regarding the relocation. He said he had told the children “Look if (you) want to go daddy will just let you go and I will try to get to see you as much as possible and I said it’s going to be – and I want them to understand because this is all laid down – down at my feet where I have to go and make sure that this works. Because if I don’t make it work then I’m pretty sure it will be dragged through the courts again and paying more money just to get – seeing my kids. And I did say to them it’s going to be very hard but I will do the best I can.” He agreed he told the children that if they go to NSW he would not be able to see them often because of money issues. He had confirmed this to the Family Report writer that “he had expressed a concern to them that he may not be able to afford to visit them.” The Family consultant indicated “Mr Phelps hadn’t prior but at the interview was able to consider this may worry and/or place pressure on the children.”
Child support
The issue of child support was hotly contested between the parties. The father claimed he had always supported the children financially the mother denied this. Following separation the father continued to run his own business. He said he paid the mother child support privately in the amount of $300 per week. In mid-2010 he filed for bankruptcy. From mid-2010 until October 2011 he deposed to working for (employer omitted) and living in his parents’ home. He said he continued to pay the mother child support by way of a private arrangement totalling about $4,890 or $175 per week.
In October 2011 whilst working in (employment omitted) he paid child support privately of $250 per week. This continued until 8th February 2013. He deposed to making payments at times when he was no longer working. He claimed he paid $18,750 to the mother by way of child support from October 2011 to April 2013. In addition he was making child support payments for A throughout these times. He said he did not work until later in 2013 and after he had moved to (omitted). He resumed paying child support privately of $150 per week once he obtained casual work.
He agreed that child support was irregular between December 2013 and December 2014 as he had very limited work. In December 2014 the parties registered an agreement with child support and the father said he has paid since that time however he had not filed a tax return since 2010 and was at the time of trial $14,500 in arrears. The father claimed the arrears were incorrect however he had failed to do anything about them claiming he could not afford for his accountant to complete his tax returns which had been outstanding for a number of years.
Counsel put to the father that he currently earned about $110,000 p.a. and appeared unable to manage on that income. The father generally accepted that proposition.
The mother proposed that the parties could enter into a child support agreement whereby the father received a credit for the costs of airfares and accommodation incurred by him in spending time with the children. As an alternative she suggested that the father could approach the Child Support Agency and make a claim for the costs expended by him in spending time with the children. The mother’s Counsel indicated she would agree to a notation to the effect that “the father receive 100% credit against all money he spends by way of air fares and accommodation to see his children.” The father agreed that this proposal was feasible.
The mother proposed that should the children be permitted to relocate to (omitted) they would spend half of all school holidays with their father in Victoria with the mother driving the children to Victoria and collecting them at her expense at the conclusion of time on two occasions and with the children flying to Victoria and returning to (omitted) by air on two occasions. The costs of those flights amounted to about $3,600. In addition the mother proposed the father fly to (omitted) to spend time with the children twice during each term of the NSW school terms on weekends he selected. The costs of those flights and accommodation she agreed he would receive 100% credit for from his child support liability. This would enable the father to fly to (omitted) mid-term and spend time with the children at little or no additional cost to him. Rather than 8 to 10 nights mid-term he would spend four nights with them in mid–term. The father’s response to the mother’s proposal was “how the hell is that fair?” I formed the view that the concept of “fairness” pre-occupied the father during the proceedings.
After many questions from Counsel the father reluctantly conceded giving the mother credit for her offer to forego child support to enable him to spend as much time with the children as was reasonably practicable.
Cross examination by the Independent Children’s Lawyer
During cross examination by the Independent Children’s Lawyer the father agreed that if the mother relocated to (omitted) he could live and work in Melbourne which would facilitate access to the airport to collect the children and eliminate the additional driving time to (omitted). He indicated he would not remain in (omitted) if the mother relocated with the children to (omitted).
The father discussed his concerns about the mother moving including a worry that he may be out of work and unable to meet the costs of spending time with the children and if this occurs the mother is likely to stop facilitating his time. The father said he might give the mother an excuse for not complying with the orders, so that rather than the mother not complying with the Court orders (he did not suggest she would not comply), he would not take advantage of the orders and spend time with the children for financial, geographic and other reasons. He also raised concerns about Mr P though he conceded he did not know him.
There was further discussion between the Independent Children’s Lawyer and the father regarding his inappropriate posts about alienation at a time he was seeing the children. The father provided no adequate explanation for his conduct in this regard.
The Independent Children’s Lawyer raised with the father that there was an occasion in January 2010 when he removed the children from their mother without her consent. He agreed however he justified this in saying he wanted to spend time with them and the maternal grandmother kept taking the children from him. He agreed that when he was in WA in 2011 and 2012 he saw the children “rarely”. The father disagreed that he did not see the children from September 2013 to April 2014 he said it was later in 2013 as he took the children to (omitted) sometime in 2013 to see his family. He resiled from his previous evidence about seeing the children for a few days after Boxing Day 2013 and in January 2014 for a week. He conceded that he did not see the children from about 1st May 2015 until orders were made in June 2016. He again blamed the mother for his 14 month absence from the children’s lives.
The father maintained his view that if the mother remained in Victoria she should continue to be the primary carer for the children.
Credibility
The father’s oral evidence was inconsistent in a number of respects from his affidavit evidence (as discussed above). He provided no adequate reason for the part he played in his long absences from the children and remained pre-occupied with issues relating to the mother including blaming her for the infrequency of his time. He held a fixed belief that the mother was an alienating parent and that following the move to (omitted) he would no longer spend time with the children. I find that the father’s belief about the mother as an “alienator” is not rationally held. There was no evidence that the mother had actively undermined the father’s relationship with the children. Moreover the children were not alienated from him on the contrary they all had a positive relationship with him save that Z was a little ambivalent towards him.
The father displayed little or no insight into the impact his behaviour had on his children and his relationship with them including the decision to work in WA and decision not to spend time with the children for long periods of time. He failed to consider the impact on the children emotionally including feelings of sadness they may have had in not spending time with him regularly, the disruption to their routine, and perhaps feelings of abandonment. The father is most fortunate that the children readily re-established their relationship with him once orders for time were implemented in June 2016.
The mother’s evidence
The mother’s version of the incident at separation differed from the father’s. She deposed to the father smashing a glass leadlight in the kitchen dresser and glass spraying over 6 month old Z. She denied that she cohabitated with Mr J and denied that she suspended the father’s time over issues with this man. She agreed she had a relationship with Mr B during 2011 but broke that off when he smashed a window on her car. She said the children were not in her care at the time. I was unable to make any finding about what occurred between the parties at separation save that there was an incident. I find that both parents behaved inappropriately on this occasion.
The mother said she moved from (omitted) where the parties lived at separation to (omitted) to be closer to her mother to obtain her support for the three children then under 3 years of age. Her concerns were about the father’s inconsistency in spending time with the children and indicated that at no time following separation did the father form any pattern for spending time with the children. He initially moved away after separation. She said he was absent from Victoria for long periods in 2010, 2011 and 2012. On one occasion she and the children spent time at Easter with the paternal grandparents however she said “the father did not show up.” In her view the father was irresponsible.
In 2013 he made contact about the children on about 16 occasions between January 2013 (when he took X to Queensland) and September 2013. She had concerns about the father’s care of the children in September 2013 as he would leave them unsupervised in the care of 10 year A. The mother agreed that she was the one who suspended time between September 2013 (the father says it was November 2013) and April 2014 due to her concerns regarding the father’s parenting. She said in about March 2014 she organised mediation and time with the children recommenced. She said the father again began to be inconsistent and posted offensive remarks about alienation on Facebook even though he was spending time with the children.
In 2014 the parties attended mediation and entered into a parenting plan. She complained that the father continued to be inconsistent with time saying he had to work and could not see the children or returned them early or cancelled his time.
She said that for a period the father had consistent alternate weekends from 2015 until 2nd May 2015 when he did not arrive for changeover. She attended changeover a couple of times after that and said she was “sick of taking the children to changeover as when the applicant did not turn up the children became upset” so she stopped. She denied receiving the three letters deposed to by the father (referred to above), but said that her aunt returned a letter the father had sent her, unopened. She received a letter from the father’s lawyer in December 2015 but “he didn’t follow that through “. She said she then received a Facebook message from the father’s current solicitor in May 2016 stating the father would be instituting proceedings.
A contentious issue for the mother was the father’s failure to adequately maintain the children. She argued that she received $32,169.80 in six and a half years and the father was currently in arrears of child support in the amount of $14,597.69. She did not receive regular payments until she lodged an application for child support in 2015 and disputed the number of cash payments asserted by the applicant.
The mother said she had become engaged to Mr P in May 2016. She said they intend to marry in 2017. She had known Mr P at primary school when she lived in (omitted) as a child. They reconnected when they were in their twenties. In 2015 they sent Facebook messages to each other and from 2016 had spent time together about once a month. The children have met Mr P and get on well with him.
The mother said since interim orders were made the father had failed to answer telephone calls on six occasions. She said that she and X tried to telephone the father on 1st and 2nd September 2016 to invite him to Book Week but he did not answer.
She currently works on a (employment omitted) in Victoria and has made inquiries about a number of (employers omitted) in the (omitted) area where she could obtain work. In her view the move to (omitted) would not affect the children’s relationship with their father. Until July 2014 the father had never requested to spend holiday time or block periods with the children.
The mother gave evidence that she would drive the children to Victoria at her expense for half of the first and third term NSW school holidays. She would stay in Victoria and then drive them back to (omitted). She proposed that for the second term and the long Christmas holidays the children would fly down from (omitted) to (omitted) airport and return. In addition she proposed the children could fly to Victoria once a term. The father was welcome to spend two weekends a term in (omitted) with the children so he would be seeing the children three weekends per term. She said through her Counsel that she was prepared to forego “whatever is necessary to enable the father to get a credit in respect of all fees he pays in respect of travel arrangements against his child support liability so effectively he wouldn’t be paying child support he would be paying the fares.” She had made inquiries and each flight for all three children would be $1,800. To allay the father’s fears that she would not continue to support his relationship with the children should she relocate, the mother indicated through Counsel that she would agree to an order that in the event either party wished to vary the orders then the parties must file any application in the Melbourne Registry of the Federal Circuit Court.
The mother’s Counsel discussed the father’s view that she was alienating the children from him and his fear that she would not comply with Court orders. The mother said that she did not speak badly about the father to the children “they don’t need to hear that.” She said she had complied with Court orders and attempted to implement consistent time for the children with their father. Her concern was his inconsistency in spending time or not spending time with them. She said the children currently enjoy spending time with their father and currently things were “pretty good.” She said sometimes after spending time with him they raise the issue of not being able to see him if they move and she reassures them saying she “wouldn’t let that happen.” In her view the children would adjust to the change in arrangements should she move. She said the father’s time has been inconsistent over the years and the children have adjusted each time. She agreed that the children loved their father and enjoyed spending time with him. I reject the father’s assertion that the mother has engaged in parental alienation.
When cross examined by Counsel the mother did not agree that the children were very anxious about not seeing their father. She said “Y and Z are a bit more easy with it but X is a lot more sensitive…..(however) the children have adjusted every other time even times when he hasn’t turned up when he said he would. …a couple of weeks later they do adjust and as long as we try to keep the communication open with phone calls and stuff like that.”
When asked what she would do in the event that the father said he had no money to facilitate spending time, she said she hoped they could agree to swap and she would drive the children to Victoria for the holiday and perhaps they would fly next time. She said he may contribute something otherwise she would fund the trip or rely on her fiancé to assist. She agreed that the father was not a good money manager. She said this problem would exist whether she was in Victoria or (omitted). She agreed that the cost of spending time was greater should she relocate. She agreed that the father was unlikely to change and contact problems may continue.
Regarding the long absences when the children did not spend time with their father she accepted that both parents were to blame. She agreed there was a history between them of not being able to resolve disputes about spending time or changing arrangements and she had told the father to “get fucked” on an occasion. Counsel for the father suggested that the entire history of contact between the parents had been starting and stopping with the mother blaming the father and the father blaming the mother. The mother accepted this proposition. She agreed that her greatest complaint had been the inconsistency in arrangements for the children and lack of routine. She agreed that the current arrangement for the children with both parties in (omitted) had been consistent and that the current Court orders were being complied with. She accepted that she and her fiancé had managed their relationship to date however she said “I’m about to marry the man and we’re planning on having children and I would like to start a new life.”
She said her fiancé could not relocate to Victoria as his father was terminally ill and his grandmother had been diagnosed with cancer and he was responsible for running the family property. She said they had discussed the prospect of her fiancé relocating to Victoria. She said her fiancé assists both his grandmothers who live on a 40 acre property in town and he also works the 300 acre property out of town. She said they would be renting somewhere for about 6 months until they work things out. She said she did not want to uproot her fiancé from his home in (omitted). She said that in the event the Court did not allow the children to relocate she and Mr P would carry on the way they have been and see where things go. She said he may stay with her for a while in Victoria and then return home.
The mother said she would like the father to be more involved in the children’s lives. Counsel suggested this was more likely if the parties continued to live in (omitted) so that the father could attend school functions, take the children to (hobbies omitted) and the like. The mother said he had been invited to numerous activities and he is “just too busy to be part of it.” She said “I don’t think he can actually do it.” She disagreed that the father coming to (omitted) to spend time was a poor suggestion. She said there were lots of things for the children to do there. In her view the father did not do much with the children during the Christmas holidays as he was working shift work so he slept through the day and worked at night while his father cared for the children.
The mother proposed a continuation of the current orders in the event that the children were not permitted to relocate. As to the impact on the children in reducing their time with the father the mother said that “Y is very resilient…..X … is a sensitive type but he’s a lot stronger than people make out…. they’ve gotten through everything we’ve gone through in the last seven years and they will adjust.”
Cross examination by the Independent Children’s Lawyer
In answer to questions from the Independent Children’s Lawyer that the children felt they could not tell the mother how they felt (that they had missed their father during his absence and they wanted to stay in Victoria and see more of him) she denied this was the case and said that the children could talk to her about anything. When asked about the most recent long period of absence from their father, the mother agreed she did not do anything about it but believed the father would eventually make an effort. When asked why she was not more pro-active, given her evidence that it was important for the children to have a relationship with their father she expressed frustration and upset and said “you eventually give up.”
The mother agreed that she and her fiancé had limited finances and it was likely that the children would spend only holiday time with the father however if he did not pay for travel, she would ensure the children spent time with him by driving to Victoria. She was vague about Mr P’s income and thought he earned about $400 per week from the sale of (omitted).
The mother foreshadowed that there would be a change for the children in any event as she said she would like to move away from (omitted) and her current rental premises was going to be sold.
Credibility
The mother came across as a frank witness generally. I formed the impression that she was child focused and had genuinely wanted the father to spend time with the children in the past on a consistent basis but had on many occasions become frustrated with the father’s inconsistent approach to parenting. She also had to deal with the children’s upset and distress when their father failed to arrive for changeover. She had eventually given up on him.
It was apparent to the Court however that the mother’s current primary focus was to leave Victoria for (omitted) to start a new life with Mr P. In her view the children would adjust, just as they had done over the last 7 years. The mother had no expectation that the father would pursue time with the children on a regular and consistent basis regardless of whether she remained in Victoria or not, however she was prepared to forego child support to facilitate travel arrangements to ensure the children spent regular, consistent time with him. The father conceded that she was a “good mother” and did not suggest that she would not comply with Court orders.
The Court has concerns about the mother’s relationship with Mr P. It is in its very early stages. She and Mr P had not discussed the mother’s proposal to forego child support and the impact this would have financially on their household. Further their future together including the practical arrangements for accommodation and Mr P’s ongoing financial support of the mother and the children should she relocate had not been discussed in any meaningful way. In particular the assertion by the mother that she and Mr P were trying to have a baby together appeared to be news to him. There were additional stressors for Mr P due to his father’s terminal illness and his grandmother’s cancer diagnosis.
Mr P’s evidence
Mr P said he had known the mother since primary school and they made contact in their twenties and communicated regularly in 2014 and became good friends. He said they formed a relationship in 2016 and became engaged in May 2016.
He had lived in (omitted) all his life. Both his father and his grandmother had been diagnosed with cancer and he said he was close to both of them. The prognosis for his father who is terminally ill was poor. Mr P said it would be a “matter of weeks” before his father passed away. He works as a (occupation omitted) on (omitted) in (omitted) and enjoys a friendly relationship with the mother’s children having come to Victoria on occasion to spend time with them and the mother. He said he would be able to assist the mother with finances and was willing to support the children’s relationship with their father. He said that if the children were not permitted to relocate then he would travel to Victoria however he and the mother would still marry.
Mr P was currently living at his grandmother’s house and proposed that he and the mother and children would rent though they had not organised a rental as yet. He said rents were likely to be $300 to $370 per week outside town and it would be more expensive in town. He said he and the mother had not discussed finances nor the mother’s proposal that she would not receive child support. Nor did he know about any arrangements for the children to spend time with their father for example how frequently they would holiday with their father and where that would take place. He said “she hasn’t said anything at all about the case.” They had not discussed having a baby together recently the mother raised the idea with him in November 2015 but “we never really talked much more about it.” He accepted he didn’t know the children well nor was he aware of the relationship the children had with their father.
Cross examination by the Independent Children’s Lawyer
Mr P said he earns $400 to $500 per week, the most he earned was $860 but said his average income was about $50,000 p.a. however he was unable to accurately say what he earned in the last financial year and he had been on Centrelink for half of that year. He told Counsel for the mother that when he sold (omitted) his income could be about $50,000. Mr P agreed there was a bit of uncertainty in what he earned from week to week basis. He said he had about $200 per week excess after payment of expenses.
Mr P agreed with the Independent Children’s Lawyer that on his current income he could not afford to support himself, a wife and three children. He said he had applied for “higher paid work” but had not been successful. He agreed that perhaps it was appropriate that the move be postponed until he was in a position to properly finance it.
Credibility
Mr P was an honest and forthright witness who expressed his commitment to supporting the mother and her children. He had no experience of his own with children and his relationship with the mother was still very new. He was dealing with both his father’s and grandmother’s very serious health issues which no doubt added an extra burden upon him. He accepted that he would currently have difficulty supporting the mother and her children financially should the Court make an order for the children to relocate. The practical proposals for relocation had not been well thought out by him or the mother.
The Family Consultant suggested that Z and her father’s relationship needed work in the form of therapeutic intervention for a sustained period of about 6 months. She accepted that a 12 month delay prior to relocating to (omitted) would give the children the opportunity to further cement their relationship with the father and if therapy was undertaken improve on his relationships with the children and in particular Z.
She advised the Independent Children’s Lawyer that in her view Z had had a disruption to her attachment relationship with her father and was avoidant. She was desperate to seek him out and then pushed him away. She was of the view that regular treatment and therapy with an attachment based play therapist for six months would assist Z and her father. She indicated that this could be undertaken by Ms V in (omitted). She said “if work could be done (around therapy) and communication between the parents improved this would “absolutely change and shift my position (on the mother relocating to (omitted)).” Both the mother and Mr P indicated that if the children were not permitted to relocate to (omitted) they would have to come up with other alternatives to ensure their relationship was maintained.
Discussion
Between separation in 2009 and June 2016 (when interim orders were made) the father’s time with the children had been inconsistent and unpredictable. For years following separation the father was pre-occupied with relationship issues between himself and the mother and not committed to spending time with the children on a regular basis. He at times alleged the mother prevented him from spending time though it was apparent that many absences were due to his decision not to spend time (due to work commitments, exhaustion etc). He at times spoke of “walking away” permanently from the children and at other times accused the mother of being a “parental alienator.” Further his allegations of alienation by the mother continued during times he was actually spending time with the children. I find that in the past the father failed to prioritize the children’s needs for stability, security and predictability of time over his own needs. He was for many years pre-occupied with relationship issues focusing on himself rather than the children’s needs. I find that he continues to have only limited insight into the impact his inconsistent engagement with the children has had on them.
The mother has also been responsible for the children “missing out” on spending time with their father. She initiated a re-instatement of the father’s time in March 2014 by organising mediation however she allowed the children to go without spending time with their father for a significant period of time (5 or 7 months). She did nothing to encourage the father to re-engage with the children during his 14 month period of absence from them between May 2015 and June 2016. In December 2015 she told the father’s lawyer that she had “no intention of resuming the parenting plan or undertaking mediation” and “he was free to start proceedings.” She failed to have any regard to the impact on the children emotionally and psychologically in not spending time with their father, their feelings of loss and their concerns and worry about him. X reported that during this period his mother did not say anything about his father. Both parents appear to be equally at fault in this regard.
The children have a strong and positive relationship with their father notwithstanding their long absences from him and in addition they have a close, loving and secure relationship with their mother. I find that the mother has for her part as primary carer provided the children with love, care and support in all aspects save for their relationship with their father. Contrary to the father’s assertion, there is not a scintilla of evidence that the mother has attempted to alienate the children from him. The children love their father and love spending time with him.
Best interests of the children – the primary considerations
Section 60CC(2)(a) the benefit of having a meaningful relationship with both parents
Both parents agree that it is important for the children to have the benefit of a meaningful relationship with the other parent and clearly recognise the importance for the children that both parents participate fully in the children’s lives. Both accept that the children love each of their parents and enjoy spending time with them. Both have in the past failed in their commitment to support the children in their relationship with the other parent. Ensuring that the children’s time with both parents is consistent and predictable is likely to give the children the opportunity of developing stronger connections with each parent and experiencing “rupture and repair”[9] of the relationship on a regular basis. Should the children spend regular time with their father irrespective of whether they live in Victoria or in (omitted) this is likely to ensure that the children continue to have the benefit of a meaningful relationship with him.
[9] This description was used by the Family Consultant to connote child parent interactions.
Section 60CC(2)(b)
In this case, although both parents gave evidence that each of them had been concerned about the conduct of the other in the past[10] and there had been incidents of violence between them that potentially could have impacted on the children (referred to above) there was no ongoing concern that any of the children were in need of protection from family violence or any form of abuse nor was there any risk to the children from family violence should the Court make orders as sought by each of the parents.
Additional considerations
[10] The mother alleged that the father did not adequately supervise the children whilst the father alleged the mother had formed a relationship with a man who was intimidating and a heavy user of marijuana.
The children’s views
The Court is required to give the views of the children proper and realistic weight rather than regard their view in a token way[11]. A myriad of factors bear on a child’s view as to how he or she perceives what is best for him or her however the Court is not in a position to articulate all relevant factors. Suffice to say the children’s experience of disrupted contact with their father, their recent re-establishment of relevant time, their age, their mother’s perception of their father are all matters which are likely to have influenced each child in his or her perception of what is best for him or her. It is clear that both X and Y were adamant that they did not wish to relocate to (omitted). Their stance went beyond spending time with their father however this was the most important aspect for them. X indicated that he wanted more time with his father. Y was concerned about any diminution in the time he currently spent with this father. Both boys indicated they were secure in their current community in particular at school and with their friends. They preferred the security of the known to the many unknowns they were likely to encounter in relocating to (omitted). Z on the other hand though clear about not wanting to relocate was able to see some positives in moving to (omitted) however she was still very young only 7 years old. I give weight to the children’s wishes and note that this is but one relevant consideration and is not determinative of what orders are in the children’s best interests.
[11] H v W (1995) FLC 92-598 at 81,944
The nature of the relationship of the child with each parent and other persons
It is apparent that the children have close and loving relationships with each parent. The mother has been the primary carer for the children for the whole of their lives. It is likely that each of the child’s primary attachment is with their mother. Notwithstanding that the father has spent long absences away from the children, at present the children have a close and positive relationship with him. His relationship with the children is a testament to both parents and at odds with the father’s assertion that the mother has positively alienated him from the children. Notwithstanding that the mother did not pursue the father to resume his relationship between May 2015 and June 2016 none of the children currently exhibit any negative feelings towards him. Moreover though the children were saddened by his absence, none of the children indicated that they felt abandoned by him. On the contrary X acknowledged that he knew his father cared about him. Concerns were raised by the Family Consultant about Z’s relationship with her father which needs some development. Z in particular identified positive feelings towards A and referred to her as “her sister”. The boys are a little more detached from A. The relationship between the children and Mr P is very new though has potential. The children made many positive remarks about Mr P. I have taken into account these factors and put significant weight on the children’s current relationship with their father.
Whether the parents have taken or failed to take the opportunity to participate in making major long term decisions in relation to the child, and/or taken the opportunity to spend time and/or to communicate with the child
These matters have been substantially canvassed in the body of this judgment however there is no doubt that the father has failed to participate in making major long term decisions through his absences away from Victoria and his passive approach to parenting and the mother has to date failed to ensure that his views are considered. Though she gave evidence that she would have informed the father of her intention to relocate to (omitted) the Court remains sceptical about this. Both parents are equally at fault in this regard however I note that once open lines of communication are established, both parents will be required to consult in relation to any major long term issue given the order for equal shared parental responsibility.
It is unnecessary for the Court to repeat the history of the parent’s failure to take the opportunity to spend time with the children and communicate with the children. I find that the parents are equally responsible for this. Neither parent escapes responsibility for the long absences when the father was not spending time with the children. Both parents are equally at fault for the poor communication currently between them, both being pre-occupied with the conduct of the other which appears to have brought about a “stand – off” between them, where neither parent is willing to communicate with the other. Regardless of whether the children remain in Victoria or relocate to (omitted) the parents will be required to communicate to give effect to the Court orders sought by each of them.
The extent to which the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The issue of child support loomed large in the proceedings. It is reasonable for the Court to conclude that the father has been a very poor financial manager over the years and failed to provide adequate support for the children from time to time though the evidence would support a finding that he did pay a significant amount towards the children’s upkeep when funds were available to him. I find however his payments were irregular and inconsistent and the mother’s frustration in not receiving regular financial support for the children was reasonable in the circumstances. I am unable to make any finding about whether there are currently arrears of child support in the amount of $14,500. The father has failed to lodge his tax returns and claims this assessment is incorrect.
The mother’s view that the father is an unreliable provider is supported by the evidence. She expressed concern that the children required predictability of routine in spending time with their father. To this end she proposed that the parties enter into a Child Support Agreement allowing the father to utilize 100% of his child support liability payments as a means of funding the high costs of spending time should the children relocate to (omitted). Alternately she proposed that the father seek a departure from administrative assessment through the Child Support Agency allowing the father to claim the high costs of spending time with the children. The father did not agree to enter into a Child Support Agreement which reflected the mother’s proposal. He indicated his preference was to continue to pay periodic child support for the children. I note that it is the mother’s intention that the father utilize 100% of his liable child support payments to fund the cost of spending time with the children should she relocate to (omitted). I accept that the mother’s offer is genuine particularly so where she currently receives only a few hundred dollars a week for part time work and otherwise relies on Centrelink benefits. She indicated she would seek work in (omitted) should she relocate however it is unclear at this point what work would be available to her. In addition there was uncertainty surrounding Mr P’s income. He agreed in cross examination that he would not be able to financially support the mother and children given his current financial circumstances. All of these matters cause concern for the Court and have been taken into account in arriving at orders which are in the children’s best interests. I do not intend to make any orders about who is responsible for the costs of the father spending time with the children. This is ultimately a matter for the parents who will have to work out between themselves how this is managed. The father currently earns about $110,000 p.a. and pays $323 per week in child support. He accepted that if he used his child support to fund the cost of spending time, he would be able to afford to meet the mother’s proposal in the event the children relocated to (omitted).
The likely effect on the children of any changes in their circumstances including separation from a parent or any other child
It is apparent that the move to (omitted) will be disruptive for the children. Both X and Y expressed a desire to continue to live in (omitted), continue to attend the same school and maintain their current friendships. Both boys expressed sadness at the prospect of a reduction in spending time with their father. It is likely they are anxious that in moving away from their father, they may experience a recurrence of long absences from him. The mother has given an assurance that she will ensure the children maintain their relationship with their father. Certainly any further disruption to the regularity of the children’s time is likely to have a negative impact on the children and undermine their confidence and self–esteem and in the long term affect the quality of their relationship with their father. Z seemed more positive about the move but preferred to remain in her current school with her friends. She indicated she would miss spending time with A which she enjoyed very much.
The reality for the children is that there is an element of uncertainty surrounding the children’s current arrangements. Neither parent wished to remain in (omitted) long term. The mother’s home is to be sold. The father works in Melbourne and would consider moving closer to where he works. The time that the mother proposes that the children spend time with their father should she relocate includes half of all school holidays in addition to 4 or 5 nights mid–term. It is significant that it was not until December 2016 that the children spent a significant amount of school holiday time with their father. Prior to this, the father did not spend school holiday time with the children regularly. The father conceded in cross examination that whether or not the mother relocated to (omitted) that this would not impact on his ability to have school holiday time with the children. The reduction in time for the father would be moving to 4 or 5 nights mid–term and a requirement that he travel to (omitted) rather than continuing the current arrangement of 8 to 10 nights mid–term. The father indicated that the current orders allow the father to be fully involved with the children in a substantial and significant way however the Court notes that to date the father has not availed himself of that opportunity for example attending school functions, sport and the like. The impact of change is an important consideration for the Court and bears upon the Court’s decision to delay relocation.
The practical difficulties and expense of the children spending time and communicating with each of their parents
Whether the current orders continue or whether the children relocate to (omitted) and the time they spend time with their father is reduced, the children will continue to have the benefit of a meaningful relationship with him contingent upon the father ensuring he spends time with the children and there are no further long absences of time.
The mother’s proposal for the children to spend time with their father should the children relocate to (omitted) is reasonably practicable given that the children will spend half of all school holidays in Victoria and she is prepared to forego child support to facilitate that arrangement. The mid–term proposal for time in (omitted) is feasible but not ideal however it places the burden on the father to avail himself of those opportunities rather than requiring the children to travel to Victoria mid–term. Again the mother has offered to allow the father to utilise his child support payments to fund the cost of spending time with the children. The order for equal shared parental responsibility sought by the parties require the parties to consult regarding major long term issues. Regardless of where they are living the parents will need open lines of communication to give effect to the Court orders.
The capacity for the parties to provide for the children’s emotional and educational needs
The mother has been the children’s primary carer throughout their lives. The father described her as a good mother in so far as the children are concerned. She has provided for the children practically and at times supported the children having a relationship with their father. The mother has of late found it difficult to provide the children with emotional support regarding their father’s long absences from their lives. Concerns were raised by the Family Consultant about the children’s reluctance to tell their mother how they felt about the proposed move to (omitted). The mother requires some assistance to address this issue. The father lacks insight into his role in not spending time with the children for long periods and the impact this has had on the children emotionally. He appeared to have little reflective capacity preferring to focus on his own feelings and relationship issues with the mother. In addition, he recently spoke to the children about the move to NSW and expressed concern to them that he may not be able to afford to visit them. He told the Family Consultant “he hadn’t prior but in interview was able to consider this may worry and/or place pressure on the children.” It is clear that the father needs assistance to develop some reflective capacity to be attuned to his children emotionally. Currently there is a need for the father and Z to undertake therapeutic intervention to assist Z to develop a more positive attachment to her father. I give significant weight to these matters.
The attitude that each parent has demonstrated to the responsibilities of being a parent
The parent’s attitude has been explored extensively throughout the body of the judgment. Neither accepted full responsibility for the long periods of time the children failed to spend time with the father each parent blaming the other. The father alleged the mother was an alienating parent even when he was spending time with the children. He was pre-occupied with issues about their relationship which prevailed over and above his relationship with the children. He did not trust the mother nor did she trust him. The mother acted upon her frustration regarding the father’s unpredictable engagement with the children and ceased supporting that relationship. To her credit she recognises the importance to the children of spending regular, consistent time with their father whom they love.
Family Violence and/or Family Violence orders
Issues of family violence have been discussed above.
Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
The father agreed that whether or not the mother relocated to (omitted) this would not impact on his ability to have holiday time with the children. Although he would not have the opportunity of being involved in the children’s daily lives including involvement with school and extra curricula activities, his current work commitments precluded this. Further during times when he was not working he did not take the opportunity to involve himself in these activities. Should the father take up the mother’s offer to forego child support to facilitate him spending time with the children, it is likely that the father will in future spend more time with his children than he has in the past. The orders the Court intends to make are least likely to lead to the institution of further proceedings.
Conclusion
There are advantages to the children remaining in (omitted). They will continue to attend the school they have attended during their young lives with the exception to X who may be moving school[12]. The children will be able to maintain their current circle of friends. They will spend more time with their father during mid–term assuming the father continues to avail himself of the arrangements under the current orders. The parents currently live in close proximity and the current arrangements for the children are reasonably practicable. The father will have the opportunity to be involved in the children’s school activities and sports however it is unclear whether he will take the opportunity to be more involved with them. The children will be able to spend time with A.
[12] This issue was not canvassed at trial in any detail and I note that the order for equal shared parental responsibility requires the parents to consult regarding a change of school
There are disadvantages in remaining in (omitted). Both parents evinced an intention to move from (omitted) so the children’s current arrangements with school and friends has an element of uncertainty. The mother indicated that her current residence will be sold. The mother and her fiancé will be required to live separately and a significant distance apart from each other impeding the further development of their relationship with each other and Mr P’s relationship with the children. It is likely that the mother would be very unhappy with this arrangement should it continue long term. It is unclear whether her unhappiness will impact on her role as primary carer and as a consequence affect the children. The history of the matter would indicate that there is real possibility that the father may not continue to spend consistent regular time with the children in the future.
The advantages for the children in moving to (omitted) include that their mother who has been the children’s primary carer throughout their lives will be able to pursue her relationship with her fiancé. She indicated she wanted to start a new life. I accept that she is likely to be happier and more settled over time, should she be given this opportunity. The children indicated that they enjoyed spending time with Mr P on the farm and would have an opportunity of developing their relationship with him.
The disadvantages include a change for the children which will be initially disruptive for them and the reduction in spending time with their father on a regular basis mid–term in his environment with which they are familiar. There will be little opportunity for the father to be involved with the children on an ad hoc basis. The children’s relationship with A will change given there will be less opportunity for them to spend time with her. There is currently no agreement regarding the mother’s proposal to forego child support to facilitate the father spending time.
I find that it is in the children’s best interests that the mother be permitted to relocate the children’s residence to (omitted) however that the relocation be delayed until the end of the Victorian school year in December 2017. An important consideration for the Court is the need for the father and Z to engage in a therapeutic program to enable Z to improve on her attachment to him. The delay of 12 months is likely to give Z and her father time to work on their relationship. Similarly the parents need to work on their communication skills and develop a workable co-parenting arrangement which supports the involvement of each parent in the children’s lives in the future. It is likely that X, Y and Z will continue to attend their current school for another year. Counselling will assist the parents to help the children come to terms with the proposed future change in their living arrangements. The children will continue to spend time with A on a regular basis.
The children currently have a strong and positive relationship with their father. The delay will enable the children to further solidify their relationship with their father and will give the father the opportunity to demonstrate a commitment to regular predictable time with the children. In addition the delay is likely to provide the mother and her fiancé with the opportunity to practically plan when and how to move, to obtain suitable accommodation for the family, to investigate work opportunities and to allow Mr P to support his father through his terminal illness and through his grandmother’s ill health. Mr P indicated he would come to (omitted) from time to time to maintain his relationship with the mother and to develop his relationship with the children. The mother indicated she would cope if she was required to remain in Victoria. The delay will also give the father the opportunity of investigating work opportunities in (omitted) should he decide to relocate and/or further investigate accommodation in Melbourne where he currently works. The children will continue to spend time with their father each alternate weekend and for half of all the Victorian school holidays in their current environment until December 2017. It is both reasonably practicable and in the children’s best interests for that arrangement to continue for another year. The Court is guided by the evidence of the Family Consultant who moved away from her recommendation against the mother being permitted to relocate with the children to (omitted) and adopted a position under cross examination that “if work could be done (around therapy) and communication between the parents improved this would absolutely change and shift my position (on the mother relocating to (omitted)).”
Once the children relocate the arrangements for the children are likely to ensure that the children continue to have a meaningful relationship with their father. Notwithstanding the children’s express wish to remain in (omitted), the mother is of the view (and I accept) that the children will adjust. They have managed to retain a strong and loving relationship with their father notwithstanding the disruption to their time. The mother has to date provided the children with stability and security. She has indicated that she will support the children’s relationship with their father and has offered a practical financial arrangement to ensure they spend regular time with their father. I am confident that the mother will abide by Court orders which will ensure the children spend regular time with the father once she relocates their residence to (omitted). It will be incumbent upon the father to adhere to those Court orders.
I consider that it is in the children’s best interests long term that the mother be permitted to relocate the children’s residence to (omitted). Once they relocate the children will continue to spend time with their father about 4 to 5 nights mid–term and for half of all school holiday periods. I find that the orders for the father to spend time with the children once they relocate to (omitted) are both reasonably practicable and in the children’s best interests.
I conclude that it is in the children’s best interests for the current orders to continue until December 2017 and thereafter orders be made largely in accordance with the orders proposed by the mother. I note that the father through his Counsel indicated that if the Court determined that the mother should be permitted to relocate with the children to (omitted), the orders for the father to spend time as proposed by the mother were appropriate. The Independent Children’s Lawyer indicated that in his view the mother should be permitted to relocate the children’s residence to (omitted), the timing of that order being a matter for the Court.
I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 15 February 2017
Key Legal Topics
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Family Law
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Procedural Fairness
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