Pitt and Roscoe

FEDERAL CIRCUIT COURT OF AUSTRALIA

PITT & ROSCOE

[2017] FCCA 3189

Catchwords:
FAMILY LAW – Parenting – mother seeks relocation to Adelaide where child has intellectual disability – best interests of the child – relocation not permitted.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DAA

Applicant:

MR PITT

Respondent:

MS ROSCOE

File Number:

DNC 333 of 2013

Judgment of:

Judge Young

Hearing dates:

14, 15, 16 & 17 November 2017

Date of Last Submission:

17 November 2017

Delivered at:

Alice Springs

Delivered on:

17 November 2017

REPRESENTATION

Counsel for the Applicant:

Ms O’Conner

Solicitors for the Applicant:

WardKeller

Counsel for the Respondent:

Mr Barry

Solicitors for the Respondent:

Darwin Family Law

ORDERS

That the solicitor for the father is to provide a detailed minute of orders referring to the following:
(a)That the mother and father are to have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2007 (“the children”).
(b)That the children are to live with the mother.
(c)That the children spend 5 nights per fortnight with the father.
(d)That the mother is not permitted to relocate the residence of the children to Adelaide.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALICE SPRINGS CIRCUIT

DNC 333 of 2013

MR PITT

Applicant

And

MS ROSCOE

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a parenting matter involving two children: X, who is 13 – he will be 14 in January next year – and Y, who is 10 years old. The mother seeks to relocate the residence of the children from Alice Springs to Adelaide. The principal reason advanced by the mother for relocation concerns X’s needs as a child with disabilities. X has an intellectual disability resulting from abnormal brain development. He has a measured IQ of 61 and an academic ability around that of a five year old. In practical terms, that means he is still learning to read.
His teachers thought that his academic ability would plateau at around the level of year 3 or 4; Dr F, his paediatrician, thought perhaps around a level equivalent to year 5, that would be something like, on my calculation, the academic level of a normal seven or eight year old. X also has a physical disability. His right leg was lost as a result of complications from his very premature birth. He was very unwell. The mother says that the options for education and supportive arrangements in Adelaide are better than Alice Springs and that it is in X’s best interest that he relocate to Adelaide to take advantage of the greater opportunities there. I will deal with that issue in a little more detail in a moment.
The mother also raises other issues in favour of her relocation of the children’s residence to Adelaide. She is very critical of the father’s parenting capacity and says also that there is such a level of conflict between the parties that relocation is required to manage it, that is, it is a necessity, she says, for the parties to live in different cities. That is the mother’s primary position. She says that if that is not to be the case, then something like the existing arrangement should continue, which would involve, as I understand it, a slight increase of one night on the existing orders to five nights a fortnight.
The father opposes relocation and, in his application at least, or his amended application, seeks equal time. In the running of this trial he, for the first time, on the filing of his outline of case on 9 November, sought orders that he be the primary carer of the children should relocation not be allowed.
The background to the matter is as follows. The father is 46 years old. The mother is 33 years old. The parties began their relationship in 2002, married in 2006 and separated in 2009, although the mother did not leave the matrimonial home until 2010, as I understand it. At that time, she was engaged in a relationship with Mr Roscoe and began living with him in about mid-2011. They have, subsequently, married and had a child, A.
The evidence about the arrangements for the children immediately after separation is a little unclear. However, for a substantial period the children spent four nights a week with the mother and three nights with the father. In the first part of 2012, the mother went to Darwin for further training. She is a (occupation omitted), and, as I understand it, is also training to be a (occupation omitted). She was away from Alice Springs for a period of 14 weeks, and, during that period, the children were placed with the father for five nights, as she returned on the weekends. On the other nights, the children were with her or perhaps her family.
The father was employed throughout that period and remains employed in the (omitted) industry. On the mother’s return from Darwin, she learned that the father had formed a new relationship with Ms H. Ms H is a (occupation omitted), as I understand it, and a (occupation omitted). She is employed as a (occupation omitted) at the (employer omitted). It seems that the mother did not take well to the news of Ms H’s arrival on the scene. She said in cross-examination that the initial point of objection was that the father had introduced the children to Ms H in a precipitate and inappropriate matter. However, I do not see that that objection was raised in her trial affidavit.
I am really unable to see any difference of substance between the mother’s manner of introducing the children to Mr Roscoe and that adopted by the father in introducing the children to Ms H. I am not satisfied that there was anything inappropriate in how the father introduced the children to Ms H but I also acknowledge that a former partner introducing children to a new partner is always a sensitive topic and, usually, in retrospect, can always be seen to have been done in a better way.
From around the time that the father began his relationship with Ms H, the mother began to send a great number of text messages to the father. He has kept a record of them. The text messages run over a period of about three years. In the first year or two, the messages are made in a deeply angry, hostile and recriminating tone. It is difficult to see that they have any real content, other than anger and recrimination. They are often very insulting and offensive. They are also directed at objections to Ms H and her involvement with the children. At various times, the mother threatens to cease allowing the children to spend time with the father.
The mother complained that the father’s evidence did not include his replies but it seems to me it was always open to her via her solicitors to insist that those be produced and they were not. She also said – perhaps this is the explanation for why that did not occur – that the father knew that he was going to keep those text messages and was careful to adopt an appropriate tone in all of them and he kept his hostile or unpleasant communications to oral communications. That may be. I do not know. I do, however, observe that the text communications from the father, each of them that I have seen, was expressed in a calm and businesslike way, often refusing to respond to the mother’s provocative manner of communication.
The mother was cross-examined about these texts. She said she regretted sending them and she had since dealt with the issues that she was expressing in those texts. It is unclear if that is, in fact, the case. The evidence appears to be that the mother remains deeply distressed about the father and particularly Ms H’s role in the children’s lives. The mother has attended on a psychologist, Ms V, since last year. Ms V has offered a provisional diagnosis that the mother suffers from post-traumatic stress disorder as a result of conflict between the mother and the father over the entire course of the marriage.
The mother’s evidence in her trial affidavit and, indeed, as far as I can remember, in cross-examination does not deal with conflict between her and the father, other than post-separation conflict. There is, thus, not a factual substratum in evidence to support the diagnosis offered by Ms V. Given my reservations about the mother as a historian, I accept that the mother experiences, and continues to experience, psychological distress but I am not satisfied as to the causes or the origin of that distress.
The mother says she is stressed when she sees the father around Alice Springs as it is a relatively small town. This does not, however, prevent her from regularly attending (omitted) on Friday nights where the father and Ms H also attend. The mother’s husband, Mr Roscoe, said that generally they sat away from the father and Ms H, and, thus, minimised any contact. Ms V said that the mother attending (omitted) was not inconsistent with her provisional diagnosis but it is noteworthy that the mother had not told Ms V that she saw the father on an almost weekly basis at a sports ground.
The evidence appears to suggest that usually the parties can operate in a fairly businesslike way. However, there are outbursts of conflict from time to time. One example was that the mother had a dispute with Ms H who was at (omitted) in 2016. As a result of that the mother was found to have “brought the game into disrepute” by a disciplinary tribunal. Mr Roscoe said that changeover usually went without mishap although there had been two arguments between him and Mr Pitt, the father, over the past 12 months.
The text messages in recent times, which the mother and father continue to exchange, are much more businesslike in tone, generally speaking.
I have reservations about the mother as an historian. I will give an example. The mother told Mr R, the family report writer, that the father was disengaged from the children and indifferent. She said that he had never taken X to his medical appointments in Adelaide and that is recorded at paragraph 46 of the family report. During the period immediately after separation, from around August 2010 to October 2011, the father took X to Adelaide on three trips out of the four, and, on another occasion, apparently took him to a specialist appointment here in Alice Springs.
The mother said in cross-examination that she did not recollect the precise number of trips during that period and I accept that that may well be the case. She said, however, that she did recollect that the trips to Alice Springs during that period were “shared”, to use her word. That concession appears to me to be quite inconsistent with what she told Mr R. The father claims that after about 2012, when he began his relationship with Ms H, the mother stopped informing him about X’s trips to Adelaide.
The mother denies that but I think it is likely that the mother did not welcome the father’s involvement after that time, which is also the period which coincided with her most offensive text messages. In 2016 the father resumed taking X to Adelaide for his medical appointments and, as I understand it, has been responsible for most of them over that period. The evidence of the family report was that the father appears as an engaged and loving father. I make a finding that that is, in fact, so.
Let me turn to the medical and educational reasons offered by the mother for relocation. The mother’s affidavit material on this issue was scanty. She devotes only two paragraphs, 105 and 106, of the trial affidavit to the issue. She mentions an organisation called “(omitted)”, as an organisation that supplies tutoring for children with special needs, and she also mentions Disability Recreation and (omitted) South Australia. The last, apparently, organisation would permit X to play sports with other disabled children, perhaps, according to Dr F, through wheelchair sports.
It is noteworthy, I think, that these are the only two organisations mentioned by Dr F, X's Alice Springs’ paediatrician, when she gave evidence for the mother. I found Dr F’s evidence on the medical or educational reasons in support of relocation to be superficial. She did not, for example, consider what I consider to be a crucial issue, which is the need for scaffolding X’s transition from school to young adulthood. As I mentioned, he will be 14 in (omitted) of next year, and it is unlikely he will continue to any further or to higher education, although he may do some vocational study, I assume.
It appears to me that given his disability and perhaps the fact that he will not live independently, or at most semi-independently, the issue of parental support remains an extremely important one in his life and I would have expected that to be dealt with in any deep consideration of X’s future needs. The mother does not attempt to say how the opportunities that she says exist in Adelaide will meet any present unmet need. X is currently attending (omitted) school in (omitted). He is in a mainstream class, and he receives 20 hours a week one-on-one tutoring as part of an educational adjustment program which is a formal program designed for him and generally for children with disabilities. The funding, I understand, is channelled through the (omitted).
X appears to be making some progress. He has moved from a low year 1 level at the beginning of this year, when he first went to (omitted) , to an upper year 1 level in literacy and to a lower year 2 level in numeracy or maths during this year at (omitted). It also appears that X plays a great deal of sport in (omitted). There was evidence that he played (omitted). His father referred in evidence to other activities, such as (omitted). As I understood the evidence, he also plays competition sport, and the one example of competition sport that was given in evidence was (omitted). It was said that he competes against younger children as a way of compensating for his physical disability and perhaps his intellectual disability as well.
I think it is clear that X is not deprived of any opportunity to play sports in Alice Springs; on the contrary. Both parents are very sports minded. It is perhaps, apart from their children, one of the few things they have in common. And they are keen to involve themselves and their families in sporting activities.
X’s class teacher, Ms I, and the principal of the (omitted) middle school, Ms B, gave evidence. They were impressive witnesses. Their evidence showed that they were attuned to X’s needs and genuinely committed to offering X an appropriate education in a supportive school environment. I consider X is going to a good school closely attuned to his special needs.
Dr F, the paediatrician, or X's Alice Springs’ paediatrician, prepared an affidavit which raised some of the issues that I have mentioned but also raised the issue of the deleterious effects of X’s absences in South Australia for treatment. It seems that last year he went to Adelaide on seven occasions. This year, he has been on seven occasions and will also go on another trip to Adelaide to see his specialist later this year. Apparently, that frequency is not necessarily the norm. In, as I understood, 2013 and 2015, he did not travel to Adelaide at all. It may be that as he grows, and if his pace of growth increases, that there may be more trips next year, but it is hard to say.
X’s teachers, who I have referred to, Ms B and Ms I, also addressed that issue, and Ms I his class teacher, addressed it specifically. While she acknowledged that ordinarily prolonged absences from school would be deleterious, and I understand his absences are generally for a few days at most, given X’s very low academic standard and the limits on his ability she did not accept that it was necessarily harmful to be absent from school. I accept that view.
Dr F also suggested that the greater availability of “programs” in South Australia would be to his benefit as well, although I note, tellingly, in my view, she did not refer to any specific programs other than those I have already mentioned. As mentioned I accept the views of Ms I and Ms B about the limited nature of the deleterious effects of X’s absences in South Australia. It was also said that it ought to be possible to coordinate at least some of X’s trips with school holidays, and, curiously, I did not hear any evidence about whether that had been done to date.
The mother was asked about a proposed school for X if she were to be permitted to relocate. Her evidence on that issue was very vague. Initially, she had been to the (omitted) School and she said, at least in her affidavit material, that this was one of the schools that she was interested in, and she thought was appropriate for X. She also mentioned two other schools, including the (omitted) school. In cross-examination, she said that she had decided that a school run by the (omitted) in Adelaide was suitable. She had forgotten the name of the school and the suburb where the school was. She said that she had done some research on the web and telephoned the school to discuss whether or not it could accommodate X’s needs. None of that information was included in her affidavit.
In conclusion, I am not satisfied that there is any sound educational or medical reason for X’s relocation. On the contrary, I consider his education, social and emotional needs are well catered for at (omitted). I find that his travel to Adelaide, while less than ideal, does not merit for that reason alone any relocation away from his family and support in Alice Springs.
The second of the three issues raised by the mother was the mother’s criticism of the father’s parenting capacity. I have said something about this already. I do not accept the mother’s evidence about this. I have found that her history, as given to Mr R, was misleading. The evidence, particularly the observations of Mr R, were that the father was an engaged and loving father. I accept that observation.
The third issue that was raised by the mother was the necessity of relocation to resolve conflict. I might say at the outset that there was no evidence that the parental conflict in this matter was having an adverse impact on the children. It goes without saying that conflict does have an adverse impact on children and I am not for one moment suggesting that the absence of evidence means that there is no adverse impact. That would be very surprising, if it were the case. However, in the absence of evidence, it is difficult to make an assessment of how conflict is affecting the best interests of the children.
Often conflict will affect a parent’s parenting capacity and, for that reason alone, if the parenting capacity, particularly the primary parent, is undermined or diminished that may well be a fact that is given great weight in a relocation case. In this case, there was no evidence that the mother’s parenting capacity was being diminished. As I have mentioned, the mother’s treating psychologist, Ms V, gave evidence in the case although she did not provide an affidavit. She gave oral evidence. She said that while she considered the mother’s provisional diagnosis of post-traumatic stress disorder was merited, she also said that the mother’s levels of distress, which she monitored, were directly impacted by this litigation and the stage of this litigation.
She said, specifically, that when the trial matter had been adjourned, she said on two previous occasions, that the mother’s stress levels became elevated. She said that she considered that the mother’s stress levels would fall once the litigation was complete. She did not, tellingly, say that she considered that relocation would be a solution to what she saw as the mother’s continuing mental distress. Rather, she said she thought the solution was treatment which she would continue to offer.

The mother, at one point in her affidavit material, had asserted that the father could easily relocate to Adelaide. That position appears to me to be inconsistent with the position that she also advances that it is necessary for the parties to live in different cities to minimise conflict. I am not sure how that inconsistency was resolved. As far as I am concerned, it was not. I am not satisfied that the relocation of the mother and the children to Adelaide will reduce conflict in this case. I accept the view of Mr R that it is very possible that the conflict will simply take a new form with the same underlying negative dynamic.
There is also, of course, the issue of whether the children’s relationship with the father would be undermined. I will deal with that in a moment. On the question of the father’s relocation it is necessary to consider whether that is practical. He is married. He is employed in Alice Springs. His wife is employed. His aging mother lives in Alice Springs, as does his sister and her children. He is employed in the (omitted) industry. He says he has no formal qualifications and would find it difficult to find work in Adelaide. The mother’s primary assertion, as I have said, is that she wants to get away from the father, and, in those circumstances, I do not accept that her proposal that he relocate is a genuine one.
Turning to the family report, the author Mr R recommended that the children not relocate. He recommended that the children continue living with the mother and spend five nights a fortnight with the father. Mr R made some significant observations, particularly at paragraph 96 of his family report. In forming the opinion he did and the recommendation against relocation he cited the following matters as forming the foundation for the opinion:
(a)There is reason to believe that the mother’s proposal to relocate is founded upon a desire to minimise the children’s involvement with the father and his family, and is driven by negative relationship dynamics, rather than solely focused on the best interests of the children.
(b)The father has a loving and positive relationship with the children, contrary to the views of the mother who describes him as lacking warmth and empathy, and is disengaged and disinterested as a parent.
(c)There is a high likelihood that the mother would not promote the father’s contact and communication with the children, if the children were permitted to relocate, given the strength of her enmity towards the father and Ms H.
(d)There is reason to believe, on the basis of comments provided by the children in interview and observations of them with their father, that the mother has possibly sought to sway the views of the children in support of her own proposal to relocate.
(e)The capacity of X to adapt to living in Adelaide and being distanced from his father and family and familiar routines is open to question.
I accept each of those observations as accurate and I find that each is strongly supported by the evidence.
Turning to the legislative pathway in determining the best interests of the children. Section 60CC requires me to treat as primary considerations:
(a)The benefit to the child –
or the children in this case –
of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child or children from physical or psychological harm.
There is no evidence that (b) is a concern in this case. In relation to (a), it is clear the phrase “meaningful relationship” is a legal construct and does not mean, or demand, day-to-day or even regular time between a child and a parent. It is directed to protecting the bonds between a child and a parent, assuming those bonds are in the child’s best interest.
In a case where children are 13 and 10 years old, it might be thought that the bond could be maintained over a long distance. That is often the view taken by this court in similar cases. The complication, particularly with X, is that he has an intellectual disability. He has an educational age equivalent to that of a five year old. It is also clear from the evidence that stability and routine is important to his welfare. In the long term, he may not achieve independence or independent living, or, at best, perhaps, semi-independent living, and will probably require a degree of parental support for the foreseeable future.
In such a case, the importance of a meaningful relationship is different, or the content, perhaps, of the meaningful relationship is different. I think the continued close support of both parties is very desirable for X now and probably into his adult life. I am very concerned that that would not be possible should X and, indeed, both children for that matter, relocate to Adelaide. I consider that both children, and particularly X, are closely supported in Alice Springs, not only by the parents, but by their parents’ partners and their extended families.
The additional considerations in the legislative pathway are at section 60CC, subsection (3). The ones that are most relevant, in my view, are (a) the children’s views. Y expressed a clear view in favour of moving to Adelaide. X was equivocal when interviewed with Mr R and said he would miss his father. There is evidence that Y was influenced by the mother, indirectly or directly, in expressing her view. There is little doubt in my mind that she would have been aware of the strength of her mother’s wish and felt obliged to support that view. I think that is probably a more likely explanation than the mother directly influencing or attempting to sway the child, or the children.
(b) Each of the children have a close and loving relationship with each parent and the extended family on both sides, including the maternal grandmother and the mother’s siblings in Alice Springs – three of whom live in Alice Springs, as I understand it – and the cousins. The paternal grandmother and the paternal aunt also live in Alice Springs. The children appear to have a good relationship with both Mr Roscoe and Ms H.
(c) Each parent has taken the opportunity to be engaged in the children’s lives. The evidence from the (omitted) teachers was that both the mother and father were engaged, not only in parent/teacher meetings, but in having the children do their homework and so on. There was no evidence of any real difference, from the school’s point of view, between the engagement of the parents and I find that they are both engaged in their children’s lives in an appropriate way.
(ca) does not appear relevant as that has not been raised as an issue.
(d) The likely effect of any change in the children’s circumstances. The likely effect of relocation to Adelaide of these children would raise the concerns expressed by Mr R, which I have already mentioned and which I accept.
(e) The practical difficulty and expense of a child spending time with or communicating with a parent. There is no practical difficulty, as such, in the children relocating to Adelaide. I am satisfied that the mother and the father are able to cover the cost of travel.
(f) The capacity of the parents and any other relevant person. The capacity of each of these parents is at least adequate. The mother’s desire to relocate to Adelaide is, I am satisfied, primarily motivated by a desire to remove herself and the children from the proximity of the father. To that extent, I am satisfied that, in that regard, she has placed her own interests ahead of the children’s best interests.
(h) The mother is of Aboriginal descent, on both her maternal and paternal side. As I understand it, the traditional country of the mother and her ancestors is around Alice Springs, or at least her maternal ancestors is around Alice Springs, and that of the father near the (omitted) in South Australia. The children are Aboriginal children and appear to be treated as such by the parents, and certainly in the case of X in school. I do not recall evidence about Y. The children will continue their right to enjoy their Aboriginal culture, primarily through the continuation of family relationships.
(i) The attitude to and responsibilities of parenthood demonstrated by the parties. I have considered and made some comments on that in relation to (f), but, in general, I consider that both parents are loving and capable parents who want what is best for their children, subject to the matters I have already mentioned.
(j) Family violence. Family violence is not a real issue. The mother has made an allegation that she was pushed by the father on one occasion during an argument. The father denied that occurred, and I am unable to make any finding about what may have occurred. As I understand it, there are no family violence orders.
It is not in issue that parental responsibility would be shared in this case. That being the case, I am required by s. 65DAA to consider whether it is in the best interests of the children to spend equal time with each parent and to consider whether spending equal time is reasonably practicable having regard to the criteria in s. 65DAA(5). I am satisfied that it is not in the best interests of the children for there to be equal time, primarily for the reason set out in the family report. That is, that there is conflict between the parents and, in the opinion of Mr R, opinion that was not challenged in submissions that in a situation of parental conflict such as this equal time is generally seen to be harmful to the children.
In terms of the criteria in s. 65DAA(5), I am not satisfied that the parents have the capacity to implement such an arrangement. The father submitted that, should I make that finding, it should follow that I make a finding that there ought to be an order that he be the primary carer, or at least orders reflecting a conclusion that he be the primary carer. That submission or suggestion was raised, as far as I can see, for the first time on 9 November when the father’s outline of case document was filed.
It was not something that was raised before that. It was not something that was considered in the family report. It was not something that was considered by Mr R. I am not satisfied that there is any evidence which supports such a change. In my view, the evidence is to the contrary, that there ought not be any change, or particular dramatic change, in the arrangements for these children. I am satisfied that substantial and significant time is practicable and in the children’s best interests. Accordingly, I propose to make orders for equal shared parental responsibility. I propose to make orders that the children live with the mother, and I propose to make orders that the children spend five nights a fortnight with the father, that was in line with the recommendations of the family report and also was the position adopted by the mother should she not be permitted to relocate.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 15 December 2017

[2017] FCCA 3189

17 November 2017

Key Legal Topics

Areas of Law

Family Law