Plant and Jowett
[2017] FCCA 204
•7 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PLANT & JOWETT | [2017] FCCA 204 |
| Catchwords: FAMILY LAW – Application by mother for final orders to be discharged and for order permitting her to relocate to Darwin with children – mother having commenced relationship with new partner – father settled in Adelaide with new partner and being self-employed – consideration of section 60CC factors – consideration of section 65DAA – consideration of mother’s right to freedom of movement – consideration of father’s ability to have meaningful relationship with children if mother’s application granted – final orders discharged – order permitting mother to relocate with children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61C(1) & (2), 61D, 61DA & 65DAA |
| Cases cited: Taylor & Barker (2007) FLC 93-343 U & U (2002) FLC 93-112 MRR and GR (2010) 240 CLR 461 AMS & AIF; AIF & AMS (1999) 199 CLR 160 Fragomeli & Fragomeli (1993) FLC 92-393 Clement & Clement [2014] FCCA 1664 Godfrey & Saunders (2008) FLR 287 |
| Applicant: | MS PLANT |
| Respondent: | MR JOWETT |
| File Number: | ADC 4089 of 2010 |
| Judgment of: | Judge Heffernan |
| Hearing dates: | 25 – 27 May 2016 9 June 2016 18 August 2016 |
| Date of Last Submission: | 18 August 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 7 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Dickson |
| Solicitors for the Applicant: | Tindall Gask Bentley |
| Counsel for the Respondent: | Ms J Cocks |
| Solicitors for the Respondent: | Duncan Basheer Hannon |
ORDERS
That the Orders of 20 November 2012 be discharged.
Parental Responsibility
That the applicant mother and the respondent father do have equal shared parental responsibility for the children X (“X”) born (omitted) 2006 and Y (“Y”) born (omitted) 2008 (hereinafter referred to as “the children”).
Living Arrangements
That the mother be permitted to relocate to Darwin, Northern Territory, with the children, such relocation to occur at the conclusion of Term 2 of the South Australian school year.
That unless otherwise agreed between the parties in writing, the father do spend time with the children as follows:
(a)During the Northern Territory gazetted Term one (1), two (2) and three (3) school term holiday periods at such times as agreed between the parties in writing and in default of written agreement, then commencing on the first Saturday of each school term holiday period and concluding on the last Saturday of each school term holiday period;
(b)For one half of the Northern Territory gazetted long summer school holiday periods at such times as agreed between the parties in writing and in default of written agreement:
(i)For the first half in 2017 commencing on the first Saturday after the last day of Term four (4) and inclusive of the Christmas period, and each alternate year thereafter; and
(ii)For the second half in 2018 and each alternate year thereafter.
(c)At such further and other times as agreed between the parties in writing.
That the children otherwise live with the mother.
School holidays for the mother
That the children shall live with the mother for one half of the Northern Territory gazetted long summer school holiday periods at such times as agreed between the parties in writing and in default of written agreement:
(a)For the second half in 2017 and each alternate year thereafter; and
(b)For the first half in 2018 commencing on the first Saturday after the last day of Term four (4) and inclusive of the Christmas period, and each alternate year thereafter.
Special Occasions
That unless otherwise agreed between the parties in writing, the parties spend time and communicate with (as applicable) the children at the following times:
Birthdays
(a)That the party with whom the children are not living at that time be at liberty to speak with the children on their birthday and on each of the children’s birthdays via Skype (or telephone if Skype is not available) at such times as agreed between the parties in writing.
Family Functions
(b)That in the event that either party proposes that the children attend a family function during a period that the children are not otherwise in that party’s care:
(i)The requesting party shall provide the other parent with a minimum of two (2) weeks’ notice of the event (save for in the event of a funeral in which case three (3) days’ notice is sufficient);
(ii)The requesting party shall be solely responsible for all costs associated with the children’s airline travel and shall provide the other party with a copy of the children’s return travel itinerary not less than forty eight (48) hours prior to the date of proposed travel; and
(iii)The other party shall not unreasonably withhold their consent to the requesting party’s proposal.
Airline Travel
That each party deliver the children to the Darwin and Adelaide Airports as necessary to effect the children’s time with the other parent and ensure that the children arrive no less than one (1) hour prior to their departure flight.
That the applicant mother be responsible for booking and purchasing the children’s air tickets to effect time pursuant to paragraphs 4(a) and 4(b) hereof.
That the respondent father be responsible for booking and purchasing the children’s air tickets to effect time pursuant to paragraph 4(c) hereof.
That for the purposes of the children’s travel pursuant to paragraph 4 herein, after the expiration of twelve (12) months from the date of these orders, the mother shall determine whether the children shall fly as either unaccompanied or accompanied minors, depending upon:
(a)The best interests of the children at that time;
(b)The policies of the particular airline with which they are flying with at that time; and
Prior to the expiration of twelve (12) months, the children are to be accompanied by the mother for the purposes of airline travel pursuant to orders 4(a) and (b) hereof.
That both the applicant mother and the respondent father are to provide the other parent with a written copy of the children’s return flight itineraries at least seven (7) days prior to their departure.
That in the event that the respondent father is unable to spend time with the children in the terms set out herein, then the respondent father is to provide to the applicant mother written notice of same at least twenty-eight (28) days prior to the commencement of that period.
In the event that:
(a)The father is unable to spend time with the children in accordance with the terms set out herein and has not provided the mother with 28 days written notice as provided for in paragraph 15 herein, then he shall reimburse the mother for all out-of-pocket expenses associated with the children’s cancelled flights within seven (7) days, unless otherwise agreed between the parties in writing; and
(b)If the father fails to deliver the children to their scheduled return flights then he shall be responsible for purchasing replacement airline tickets for the children.
Interstate and International Travel
That within sixty (60) days of the date of this Order, the parties do all such things and sign all documents necessary at their equal shared expense so as to obtain Australian passports for the children, with such passports to be initially retained by the mother.
That in the event that either party proposes to travel interstate with the children, then that party shall provide the other party with seven (7) days’ notice of their intention to travel together with a copy of the children’s return travel itineraries not less than forty eight (48) hours prior to the proposed travel.
That in the event that either party proposes to travel overseas with the children:
(a)The travelling parent shall advise the non-travelling parent of the proposed travel itinerary no less than eight (8) weeks prior to the proposed date of departure;
(b)The non-travelling party shall provide their written consent to the proposed travel or outline their objection to the proposed travel within one (1) week of receiving the written notification at paragraph 17(a) herein, NOTING THAT such consent shall not be unreasonably withheld and in the event that no response is received from the non-travelling party then their consent will be deemed to have been given;
(c)The travelling party shall not book or arrange any such travel for the children prior to obtaining the consent of the non-travelling party at paragraph 17(b) above;
(d)Within seven (7) days of obtaining the consent of the non-travelling party, the travelling party shall provide full particulars of the children’s return travel itinerary including dates of departure and return, destination(s), accommodation and contact details for the children whilst travelling; and
(e)If the non-travelling party is in possession of the children’s passports, then they shall provide them to the travelling party within forty eight (48) hours of receiving full particulars of the children’s return travel itinerary provided at paragraph 17(d) herein.
Communication
That the party with whom the children are not residing have liberal and unrestricted communication with the children by way of telephone, Skype and email at all reasonable times and the resident party shall do all things necessary to facilitate that contact.
That the party with whom the children are residing shall allow the children to communicate freely with the non-resident parent at all reasonable times by way of telephone, Skype and email.
That for the purpose of paragraphs 18 and 19 herein, both parties shall ensure that they have operational Skype, mobile telephone and email facilities at all times.
That each party shall advise the other of any changes to their residential address, contact telephone number, email address and Skype profile within forty eight (48) hours of the date of such change taking place.
Health
That each party be at liberty to communicate with and obtain any information concerning the children’s physical, mental and emotional health and welfare from the children’s treating practitioner(s) and promptly provide any authorisation necessary to enable the other party access to that information.
That each parent advise the other as soon as reasonably practicable in the event that either of the children become seriously ill, injured or admitted to hospital whilst in the care of that parent.
That each party shall provide the other with any prescriptions or prescribed medications for the children or either of them, and the other party shall administer those medications when the children are in their care.
Schooling and Education
That the parties shall, if required, do all such acts and things and sign all documents so as to:
(a)Provide all authorisations necessary to enable the other party to communicate freely with any teacher, school official, medical practitioner or medical facility involved with the children or either of them at any school at which they attend from time to time;
(b)Provide all authorisations necessary to enable the other party to access all information pertaining to the children’s schooling at that party’s own expense and direct from the school, including but not limited to newsletters, bulletins, academic reports and school photographs; and
(c)Jointly affect the enrolment of Y at (omitted) Primary School in Darwin, Northern Territory, and X at (omitted) Primary School in Darwin, Northern Territory.
Injunctions / Restraints
That the parties be restrained and an injunction be granted restraining them from:
(a)Exposing the children or either of them to inappropriate graphic representations of any kind that contain violent, sexualised, or demonic representations including but not limited to by DVD, video, electronic games or print in any form, that is classified at or above the rating of M15+;
(b)Affecting the enrolment of the children or either of them at any other school or educational program without the express written consent of the other party;
(c)Discussing adult issues including disseminating information pertaining to these proceedings or discussing these proceedings in the presence of the children, or allowing a third party to do so; or
(d)Denigrating the other party to or in the presence of the children or allowing a third party to do so.
Children’s clothing and belongings
That each party be responsible for maintaining a wardrobe of appropriate clothing and shoes and personal effects for the children.
That the party with whom the children are residing shall ensure that all items of clothing, electronic equipment and personal effects purchased by the other party and brought by the children shall be returned with the children at the conclusion of their time in that party’s care.
Daily living expenses
That each parent be responsible for the children’s day-to-day living expenses during their time with that parent.
Operation
That in the event that either party should refuse, fail or neglect to sign or execute any document required to give effect to the terms of this Order, then upon proof by Affidavit of such refusal, failure or neglect, then a Registrar of this Court is hereby authorised to sign any such document on that party’s behalf.
That all extant applications with respect to parenting matters currently before this Honourable Court be otherwise dismissed.
That the respondent father pay the applicant mother’s costs of and incidental to this Application.
The parties are to do all things necessary as soon as practicable to arrange for Ms M to consult with the children to explain the effect of these orders to them and the parties are to follow any recommendations made by Ms M to prepare the children for relocation, with Ms M being provided with a copy of these orders by the mother and the cost of such consultation or consultations with Ms M to be borne by the mother.
IT IS NOTED that publication of this judgment under the pseudonym Plant & Jowett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4089 of 2010
| MS PLANT |
Applicant
And
| MR JOWETT |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application by the mother to discharge the final orders of Judge Brown made on 20 November 2012 and for orders to be made in their place permitting her to relocate to Darwin with the children. The respondent father opposes the application and seeks that the final orders remain undisturbed as to his time with the children. Both parties seek an order for equal shared parental responsibility.
The final orders (“the current orders”) were made with the consent of the parties. I set them out below:
“1.That all previous orders be discharged.
2.That the parties do have the joint parental responsibility for the children X born (omitted) 2006 and Y born on the (omitted) 2008.
3.That the said children do live with the mother.
4.That the said children do spend time with father as follows:
a.During the school term from the conclusion of school on Thursday until the conclusion of school on Monday following (or 5pm on a non-school day) and each alternate week thereafter;
b.During school holidays from the last day of school term for a period of seven nights and each alternate week thereafter; and
c.For the period 14 December 2012 until 24 December 2012 inclusive whilst the mother travels overseas.
5.That the said children live with the mother at all other times.
6.Any handovers that cannot be affected by delivering and collecting the children to and from school shall take place inside the (omitted) Police Station.
7.The mother and father be restrained and an injunction issued restraining them from changing the children’s enrolment and/or attendance from (omitted) Primary School for the remainder of the children’s primary school years except in relation to child X who subject to the said school’s assessment of X may need to attend another education facility as prescribed by the said school.
8.That all arrangements be suspended from 4.00pm Christmas Eve until 4.00pm Christmas Day each year with the following arrangements in lieu thereof:
a.In 2012 and each alternate year thereafter the children be in the care of the mother from 4.00pm Christmas Eve until 1.00pm Christmas Day and in the care of the father from 1.00pm Christmas Day until 4.00pm Boxing Day;and
b.In 2013 and each alternate year thereafter in the care of the father from 4.00pm Christmas Eve until 1.00pm Christmas Day and in the care of the mother from 1.00pm Christmas Day until 4.00pm Boxing Day.
9.In the event that Father’s Day falls during the mother’s time the said children shall return to the father and spend time with the father from 10.00am until 3.00pm on Father’s Day.
10.That in the event that Mother’s Day falls during the father’s time the said children shall return to the mother and spend time with the mother from 10.00am until 3.00pm on Mother’s Day.
11.That all arrangements be suspended from 5.00pm Maundy Thursday until 5.00pm Easter Monday each year with the following arrangements in place in lieu thereof:
a.In 2012 and each alternate year thereafter the children be in the care of the mother from 5.00pm Maundy Thursday until 8.00am Easter Sunday and in the care of the father from 8.00am Easter Day Sunday until 5.00pm Easter Monday; and
b.In 2013 and each alternate year thereafter the children be in the care of the father from 5.00pm Maundy Thursday until 8.00am Easter Sunday and in the care of the mother from 8.00am Easter Day Sunday until 5.00pm Easter Monday.
12.That each party be restrained from changing the child’s permanent residential address from the metropolitan area of Adelaide.
13.That each party keep the other advised of any change of address within 48 hours of such change and each party do keep the other informed of an up to date contact number.
14.That the parties consult each other and keep the other informed of all school activities, childcare, medical and other significant issues relating to the said children.
15.The parties agree to pay 50% each of all educational expenses including school and/or kindergarten fees, clothing and books.
16.The father agrees to pay 100% of the cost of the children attending swimming on a weekly basis.
17.The father agrees to pay the mother by way of private arrangement the sum of $200.00 per fortnight in lieu of assessment through the child support agency. The mother agrees not to pursue her claim for arrears in child support through the Child Support Agency.
18.That the party whom the children are living ensures that the children attend all extra-curricular activities.
19.That the party whom the children are living take the children to all scheduled doctors and/or specialist appointments whilst in that parents care.
20.That the mother informs the father of all medical appointments for the children via a communication book.
21.That the parties exchange a communication book to be used to communicate in relation to the health, care and welfare of the children.
22.That in full and final satisfaction of all financial and property matters between the parties the father agrees to pay the mother a one off lump sum payment of $10,000.00 within 30 days of the date of this Order.
23.That all other matters otherwise stand dismissed.
24.Pursuant to Section 62(b) and Section 65(d)(a) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet and these particulars are included in these orders.
25.That this order is an order to which section 81 of the Family Law Act applies for the purpose of finally determining all property matters between the parties of the marriage and to avoid any further proceedings between them.”
As can be seen from the orders, the subject children are X, now aged 10 years, and Y who is 8 years of age.
At the time the consent orders were made, there appears to have been sufficient goodwill between the parties to enable an effective co-parenting relationship. That fortunate state of affairs no longer pertains and it is common ground that the co-parenting relationship has become very strained. Both parties claim that the other has behaved in ways that undermine each other’s relationship with the children and that have not been in the best interests of the children. In the case of the applicant, she claims that the psychological wellbeing of the children has been jeopardised by the conduct of the father in exposing them to computer games with inappropriate content.
Much of the background to this matter is undisputed. The applicant mother, Ms Plant, is 32 years old and was married to the respondent father, Mr Jowett, in (omitted) 2003. The respondent is 34 years old.
At the commencement of the relationship, the father was serving in the (employer omitted) (‘(omitted)) with the (employer omitted). The parties originally lived in Adelaide. In 2002, the father was posted to (omitted) in Darwin. This was a relatively long-term posting and both children were born there. The father was posted to (omitted), Victoria, in late 2008 and the mother and children resided there with him for a short period. The parties separated in early 2009. The mother claims that separation occurred on or about 30 January 2009, when she left the marital home and returned to Adelaide with the children. The father claims that it was some time after that, approximately 2 months after the move to (omitted). For present purposes, the exact date is unimportant. Understandably, the father remained at his posting. During the first 12 months of separation, the father travelled to Adelaide to spend time with the children. He says that the mother initially frustrated his contact with the children, but agrees that she did facilitate daily Skype contact and that he saw them on 3 weekends during the first 12 month period. Mr Jowett obtained a discharge from the (employer omitted) in (omitted) 2011 and returned to Adelaide.
On the father’s return to Adelaide, there was initially some disagreement between the parties as to the care arrangements for the children. Nonetheless, the parties were able to agree on the father having regular time with them. The mother initiated proceedings in this Court in January 2012 and, as I have already noted, Judge Brown made the current orders by consent in November of that year. In 2013, the parties agreed between themselves to minor variations to the consent orders.[1] Those changes allowed the father to have overnight time each alternate Wednesday whilst the children were undertaking swimming classes. Otherwise, the agreed changes related to practical matters and demonstrate that at that time, the parties were capable of engaging civilly with each other to make decisions about parenting matters in the best interests of the children and to their mutual convenience. The routine for the children, as altered by the parties, appears to have operated effectively for some time.
[1] Trial Affidavit of Ms Plant, dated 4 May 2016 at [36].
The father commenced a relationship in 2013 with his present partner, Ms R. At about that time, he commenced a business which now operates under the name of ‘(omitted)’. The mother also commenced a relationship in 2013 with her current partner, Mr D.
In 2014, the mother spoke with the father about her wish to relocate to Darwin with the children in order to pursue her relationship with Mr D. The details of that, and later discussions on the topic of relocation, are a matter of dispute between the parties and I will refer to them later in these reasons.
The child X has had learning difficulties associated with a severe language disorder.
If I permit the mother to relocate to Darwin with the children, the father intends to remain living in Adelaide. This is understandable as his business is here and his relationship with Ms R is well established. If I dismiss the mother’s application, she advises that she will remain in Adelaide to continue in her role as primary carer for the children. This will of course, continue her separation from Mr D, who will remain in Darwin. As always in matters of this kind, the position of the unsuccessful party will be invidious to them. Applications by one parent to relocate interstate with a child or children, in circumstances such as these, present the Court with a difficult task. It is fundamental to the proper consideration of such an application, fraught as it is with emotion and the reasonable desire of both parties to have a close and loving relationship with the children that I remind myself that it is the best interests of the children that are of paramount importance. In making that observation, it is important that I observe that there is no doubt that both parents love and care for the children. It is also clear that the children have a close relationship with both parties and at the very least, a positive relationship with each of their respective partners.
Orders sought by the parties and practical ramifications
Orders sought by mother
The orders sought by the mother are understandably voluminous given the change in circumstances that will occur if I grant her application. I shall paraphrase them rather than reproduce them in full.
Ms Plant seeks that the parties have equal parental responsibility for the children. This reflects no change from the current orders. She seeks that she be permitted to relocate to Darwin with the children, and that the father spend time with them during the Northern Territory short school holidays at completion of terms 1, 2 and 3, as agreed between the parties or in default from the first Saturday of each holiday period to the final Saturday each holiday period. In other words, the mother is promoting a regime that would seek to ameliorate the change in the father’s time by allowing him to spend all of the end of term school holiday time with the children. With respect to the long summer school holiday period, Ms Plant seeks an order that the father be permitted time with the children for half of the summer holidays, alternating between the first and second half between years to cater for the parties having Christmas time with the children. Ms Plant promotes this as a minimum arrangement for the father and seeks an order that the father be permitted to spend such further and other time with the children, as agreed between the parties.
With respect to special occasions, the mother proposes orders that would allow telephone calls and Skype contact between the children and the party with whom they are not living at the time of birthdays. She also promotes orders that would allow the parties to make arrangements for the children to attend at special family functions with a period of 2 weeks’ notice, or in the event of a funeral, 3 days’ notice. Ms Plant is prepared to pay for the children’s airfares with respect to all school holiday time, with the father to pay for airfares in the event that any further time beyond that catered for in the orders is agreed between the parties.
In order to cater for potential interstate and international travel with the children, Ms Plant seeks orders that the parties do all things necessary to obtain passports for the children and orders that cater for notice, consent, and the exchange of information with respect to both interstate and overseas travel.
With respect to communication with the non-residential parent during periods when the children are not residing them, Ms Plant proposes that the children have liberal and unrestricted telephone, Skype and email communication at all reasonable times with the parties doing all things necessary to facilitate such communication.
Her proposed orders include arrangements for exchanging information about the health of the children, contact with their schools, and enrolment in school and educational programs.
With respect to injunctions and restraints, she asks the Court order that the children not be exposed to inappropriate or graphic media of any kind, and the usual injunctions with respect to discussing adult issues and non-denigration.
Other orders are sought with respect to practical matters such as children’s clothing and belongings, day-to-day living expenses and the signing of documents by a Registrar of this Court in the event that a party refuses to sign any necessary documents envisaged by these orders.
Orders sought by father
Mr Jowett seeks orders that the present regime for time remain undisturbed, namely that he has time with the children 4 nights per fortnight and for half of the school holiday periods. He seeks an order for equal shared parental responsibility.
It is axiomatic that if Ms Plant is successful in her application, then Mr Jowett will see the children with much less frequency than is presently the case. This would no doubt cause significant emotional hardship to him. If Mr Jowett is successful in opposing the orders sought by the mother, she will be frustrated in her desire to start cohabitating with her partner and their plans to start a family will inevitably be placed on hold.
Whilst both Ms Plant and Mr D were in no doubt about the depth and resilience of their commitment to each other, their relationship would almost inevitably come under increased strain if she were to remain in Adelaide with the children.
The options facing the Court are as follows:
a)That there be no change to the current orders, with the children to remain living in Adelaide with the mother, who will remain the primary carer; and
b)That the children live with the mother in Darwin, with the children to spend time and have contact with the father in Adelaide as ordered by the Court, the father residing in Adelaide.
It is not open to me to make orders that would cater for Mr Jowett relocating to Darwin. He has indicated that it is not his intention to do so. He is obviously settled in Adelaide and has started a business here. I make no criticism of him for having made that decision.
In considering what orders I should make in the best interests of the children, it is necessary that I consider inter alia the strength of the relationship between the children and the parties and their respective partners. I must consider the nature and strength of the commitment between Ms Plant and Mr D. I must consider the needs of the children with respect to their schooling, health, established friendships, living arrangements, and take into account the impact such a relocation may have on them. I should consider the parties’ demonstrated capacity for parenting the children. I must also consider the impact a relocation may have on the children with respect to their relationship and involvement with Mr Jowett and the extended families of both parties. I should have regard to the views expressed by the children to Ms M, who prepared the Family Assessment Report on behalf of the parties, although given their respective ages at the time of the assessment, it would in my view be inappropriate to accord those views significant weight.
Case for the applicant mother
Evidence of the mother
The mother, Ms Plant, relies on her trial affidavit dated 4 May 2016.
Her trial affidavit was supplemented by some brief evidence in chief which responded to matters raised in Mr Jowett’s trial affidavit. It is convenient to summarise that evidence before I deal with the affidavit evidence. Ms Plant denies the assertion by the father that her departure from (omitted) was a snap decision that would have taken the father by surprise. She says they both cleaned the house and bought the tickets for her travel. She denies having refused to let Mr Jowett speak to the children over the phone in the early stages of separation. She denies that the current orders as to overseas or interstate travel reflect any intention she had in 2012 to relocate to Darwin. She had no such intention at that time. Whilst the father was involved in coaching X’s (hobby omitted), he stopped doing so after an altercation with one of the other parents that caused him to be removed from the school. The school then dispensed with him as coach. An incident occurred between the parties at a (hobby omitted) match in May 2016 where the father berated her over a dispute as to where X should change into his uniform on that day. She admits that she did not tell Mr Jowett about the first appointment for X with the Anglicare counsellor. This was because she hoped it would be a ‘one-off’ thing and she preferred not to have counselling. The second appointment was prompted by the incident between X and the relief teacher. It was the counsellor who told her not to tell the father about the issue of video games. She denies the assertion that she withheld the children from the father for 4 weeks at the end of 2013 at a time when she was in a relationship with a person called Mr A. That relationship ended in May 2013. By October 2013, she was in a relationship with Mr D. She admits to having withheld the children for 3weeks in early 2012, because the father threatened to take them and not hand them back. She denies the serious aspersion by the father that there might have been drugs in her house toward the end of 2013. She says the father well knew and satisfied himself that this was a false allegation made directly to him by her ex-partner Mr A. She says that she does not and has not used drugs. Ms Plant denies that her decision to revert to the current orders in 2014 was motivated by the father’s refusal to agree to her relocating. Contrary to the father’s assertion that she has had five relationships since separation, Ms Plant says she has had only two other serious relationships post separation before her present relationship. She acknowledges Mr Jowett has paid for private health insurance for the children.
She says there has never been an occasion when both of her brothers lived with her and the children, and that Mr Jowett’s allegations about the brother, Mr T, having explicit video games is false. In any event, she says he lives with her mother.
With respect to the current arrangements for the children, Ms Plant acknowledged that the father’s time is progressing reasonably well but that she has some ongoing concerns for the children’s welfare in his care.
She says that the children share a close relationship and generally get along very well together. X suffers from a severe language disorder. As a result, he has been attending classes to assist with his special needs since about half way through reception. He and his sister currently attend (omitted) Primary School. X’s class is designed for pupils with a variety of special needs and he has some access to a speech pathologist, as well as a special education support officer. X’s disability is such that he initially had trouble making friendships, but this problem has abated as his language skills have improved over the last couple of years. He requires assistance with his homework and this has helped form a bond between him and his younger sister, as she enjoys assisting him with tasks such as reading and pronunciation. As his confidence has increased, Ms Plant has noticed that his socialisation and general happiness appear to have improved. He plays (hobby omitted).
On Ms Plant’s account, it is she who has been primarily responsible for managing the various appointments and assessments relating to X’s disability. She says the father has shown little interest in attending at these appointments, although he has been advised of them. She also claims to be the primary contact person with respect to schooling for the children, and says that Mr Jowett has not engaged significantly with the school.
In early 2016, Ms Plant arranged for X to be assessed for additional support and funding under the National Disability Insurance Scheme (‘NDIS’). As a result, X has now been allocated multi-disciplinary funding to cover speech pathology, occupational therapy, psychology and counselling. A copy of the approved NDIS plan for March 2016 to March 2017 was annexed to Ms Plant’s trial affidavit.
Ms Plant describes Y in terms that suggests that she is happy, confident, well engaged with school and extra-curricular activities and has no developmental delays. I do not understand Mr Jowett to take issue with her description of Y.
The relationship between Ms Plant and her current partner Mr D commenced in 2013. She describes it as a loving and committed relationship. They share a mutual desire to marry and have children. Mr D has a 9 year old daughter, A, from a previous relationship and, on Ms Plant’s account, she has developed a close relationship with A akin to that of a step-mother. Ms Plant says that she and the children have bonded closely with Mr D’s extended family.
Ms Plant says that Mr D has developed a loving and deeply engaged relationship with both children and that his affection towards them is reciprocated. He has been in daily contact with the children and she says he was integral in making enquiries that identified the most appropriate school for X should relocation be permitted by the Court. Ms Plant says the children and A have bonded well together. The tyranny of distance has made it difficult for Ms Plant and Mr D to spend time together but a schedule annexed to Mr D’s trial affidavit and marked “D-2” accurately reflects the time spent with him, mostly in Adelaide over a 26 month period. During some of the time Mr D has spent in Adelaide, he has taken responsibility for preparing the children for school and caring for them whilst Ms Plant has been at work.
The school in Darwin identified by Ms Plant is (omitted) Primary School and X has been offered a place there.
Ms Plant says that she has provided information relating to both (omitted) Primary School and (omitted) Primary School to Mr Jowett at his request. She says that her attempts to discuss the suitability of these schools with the father have met with no success.
In cross-examination, Ms Plant said that X had been approved for enrolment at (omitted) Primary School and that if permission to relocate was granted, he would be given a position as soon as one becomes available. The proposal would involve X being at two campuses, a regime the mother acknowledged he had not previously experienced. She said there had not been a specific educational assessment as to how X would deal with this. She accepted in cross-examination that X had experienced some difficulties in coping with a mainstream classroom in 2015. Ms Plant acknowledged that at present the father attends at (hobby omitted) training and attends X’s matches on the weekends. She accepted, when it was put to her, that the children would miss their father if they moved to Darwin.
Ms Plant is currently employed as an (occupation omitted) and is confident that she will be able to find employment in Darwin having already made enquires at a time when she says she believed she had Mr Jowett’s conditional consent to relocate there.
If permitted to relocate to Darwin with the children, Ms Plant proposes that she would live in Mr D’s three bedroom home in the northern suburbs of Darwin. She says that the home is modern, well equipped, has air conditioning in all of the bedrooms and an in ground swimming pool. She proposes that X would have his own bedroom and that Y and A would share a room on those occasions when A is in Mr D’s care.
On Ms Plant’s account, both of her younger brothers with whom she has a close relationship have expressed a desire to move to Darwin. She also states that both she and the children have already developed friendships with families and children known to Mr D. The purpose of that evidence was to illustrate that if permitted to relocate, the children would not be moving to an environment which was completely foreign to them and to emphasise that she has already begun to develop support and social networks for herself and her family.
Ms Plant emphasised in her trial affidavit that she is committed to ensuring that both children maintain a close relationship with Mr Jowett. In that regard, she says that she is prepared for him to have all of the end of term school holiday period with the children and half of the long summer holiday period. She says that she is not opposed to Mr Jowett having further time with the children subject to agreement. She says that she has no opposition to the children travelling overseas and interstate with the father, subject to appropriate information and notice being given. She says she would encourage liberal and unrestricted communication via telephone, Skype and email at all reasonable times. Ms Plant says that she does not oppose the father receiving all relevant information in relation to the children’s schooling or him having liberty to contact the children’s schools or medical practitioners.
Ms Plant was cross-examined about whether she had frustrated or failed to facilitate communication between the father and the children. She acknowledged that at the time of the trial, the children did not communicate with the father by Skype or phone on an ongoing basis. She acknowledged that she had not made such arrangements since filing the application. She said that they do not request this form of contact with the father. She agreed that such communication would be a way of promoting the relationship between the father and the children, but stated that both she and the father neglected to get the children to ring the other as often as they should. She denied that the lack of calls was because she was refusing to facilitate them. Before 2012, she said that calls were not a successful means of communication and that Y, in particular, found them upsetting.
Ms Plant was cross-examined about the change of the children’s school in the context of her commitment to consultation and communication with the father. She agreed that she had not put the father down as an emergency contact for the children when enrolling them at the new school. She said that this was because she was providing the school with her details, and that all information was duplicated by the school because of their circumstances. She said that she was told by the school that the father could provide his own information and this was a matter she had discussed with him. It did not, she said, mean that she did not want the father to have contact with the school. She said that she would guarantee that the father would be kept advised about schooling matters if she were to move to Darwin with the children. She acknowledged that the father informs himself about the children’s education. This includes seeing the teacher at the school on days when he has the care of the children.
In cross-examination, Ms Plant said she had not returned with the children to visit the father in Victoria after separation because she had no money. She acknowledges, to her credit, that the father had been committed to having a relationship with the children since separation. She accepted that generally the father was good at parenting. She acknowledged that the children would likely miss B, the daughter of Ms R, if they were to relocate.
Ms Plant’s proposal attempts to address the significant difficulties presented by the distance between Adelaide and Darwin. In her proposal, she and her partner would pay all airfare costs for the children during school holiday times. She says that she is prepared to accompany the children on flights to Adelaide, if it is not in the best interests of the children to travel unaccompanied or if airline policy does not permit it.
A significant part of Ms Plant’s evidence was to the effect that the father’s predilection for playing violent video games with graphic content is having a deleterious effect upon the children, in particular X. She also raised concerns about the father’s ability to care for the children. I will deal with each of those in turn.
The father’s care of the children
Ms Plant complains that on two occasions, the children have returned from the father’s care with head lice. She says that on a number of occasions they have returned to her care from the father’s care unbathed and dirty. She expresses concern that the children appear to consume a lot of fast food and pasta whilst in the father’s care, rather than having an appropriately balanced diet. She says that there have been numerous episodes of the children being late to school whilst in the father’s care and expresses concern that he rarely assists them with their homework.
Exposure of children to inappropriate material
As Ms Plant describes it, during the course of the marriage, the father had an interest in online gaming that consumed a great deal of his time. It would often mean that he would return home from work in the late afternoon and play a game called ‘(omitted)’ into the early hours of the morning. She says that this occurred at the expense of his time with the children. She says that this passion for video games has continued and the children have reported the father spent many hours gaming while they were in his presence and that he had permitted them to play the games. Her concern is that many of the games are rated MA 15+ and in some cases, R 18+, containing extremely violent, sexual and demonic content. She says that X has told her that he has seen games that depicted content of this kind.[2] Ms Plant says that even describing the games had caused the child distress and that it was disturbing his sleep whilst at the father’s home. She says that he developed nightmares about zombies and that for a period of time he began to develop uncharacteristically violent behaviour. She identified three incidents of concern between February and March 2015. In one, X attacked a fellow student. In the others, he was suspended twice for threatening teaching staff and assaulting a teacher respectively.
[2] Trial affidavit, Ms Plant, at [119].
Ms Plant says that a text exchange with Mr Jowett on 30 March 2015 on this matter, met with a denial by him that he was exposing the children to such material.
Ms Plant says that on the recommendation of the school principle, she arranged for X to attend on Ms S, an Anglicare Counsellor. He attended on seven occasions and Ms Plant says that his behaviour improved. I will deal further with this matter later in these reasons. Notwithstanding an interim order of this Court that the children not be exposed to inappropriate material, Ms Plant says that X reported as recently as April 2016 that he was playing and being exposed to video games that she knows to be MA 15+ and R 18+ games whilst at the father’s house.
Ms Plant was cross-examined at length about having taken X to see the Anglicare counsellor. The effect of the cross-examination was to suggest to her that she had delayed in telling Mr Jowett about the counselling and that she had deliberately withheld its true purpose from him. She maintained that the initial reason for seeing the counsellor was X’s behaviour at school. The second appointment was prompted by the incident with the relief teacher. She denied trying to withhold the reasons for counselling from Mr Jowett. She agreed that she had not told the father that X was having ongoing counselling, but denied that the counselling was sought because she was contemplating court proceedings and wanted to reduce the father’s time. She later admitted to telling the counsellor that she was contemplating court proceedings. Ms Plant denied that the counselling was simply a forensic exercise directed at getting evidence to use against the father in these proceedings. She maintained that she had been genuinely concerned about X’s behaviour at the time. She said that he was wetting the bed and coming to her in the middle of the night telling her about the games. She said that X would openly discuss the father’s games and gaming with her.
Ms Plant initially said that it was the counsellor who made the link for her about X’s behaviour and the video games, but she later admitted that she had told the counsellor that both children were exposed to R rated games by the father. She admitted that she had not shared with the father the strategies suggested for X by the counsellor and acknowledged that she should have done so. She attributed her failure to do so to the difficulties she had with the father at the time, referring to callous phone calls, and her desire to avoid friction with him. She said that she was not on speaking terms with him at the time. Ms Plant agreed that her failure to fully inform the father about the extent and nature of counselling was in breach of the current orders.
She maintained that she took Y to see the counsellor on one occasion because of her concerns for her welfare. Ms Plant maintained that X said he did not want to speak with the counsellor on the final occasion because his father had told him that he did not have to do so. She denied that all of the above was a strategy to support her attempt to reduce the father’s time once proceedings had been filed and said that that interim order was sought because she was concerned about issues of the video games, homework, and the fact that the children were tired after their visits with the father.
In cross-examination Ms Plant said that she did not know if X had played a game “(omitted)” at school in 2015 or 2016. She was not aware whether he had access to an ipad at the school. Whilst she agreed that X watches a children’s program called “(omitted)”, she did not know if there were zombies in that program. I understand the purpose of that cross-examination was an attempt to identify a possible alternative source for any problems X has. She was cross-examined about Annexure P-13 to her affidavit. That is a text exchange dated 30 March 2015, related to the discussions with the school about X’s disruptive behaviour. Ms Plant mentions that X had told her about fighting in zombie games at the father’s house, and that he had been upset by them and told her that this was why he hurts people. Ms Plant said that she did not believe the father’s response in that text exchange that X was not still being exposed to violent games. X had reported that he was, and this was why the 30 April counselling session focused on them.
In cross-examination, Ms Plant acknowledged that there were no other text messages on her phone warning the father about the dangers of video games, and to that extent her earlier evidence about that matter was incorrect.
Ms Plant says that her concern about this matter extends beyond simply the content of the games. In her view, given X’s difficulties, frequent playing of video games is not conducive to his social interaction and development.
Communications between parties about relocation
These communications are a matter of some dispute between the parties. On Ms Plant’s evidence, she commenced her relationship with Mr D in October 2013. She approached Mr Jowett in May of 2014 and advised him of her desire to move to Darwin with the children. She says that he indicated that he would consider the matter further once she had shown that the relationship had lasted for 12 months. Accordingly, in October of 2014, she broached the issue with him again. On her account, the matter was discussed “over the next several months”.[3] During the course of those discussions, she says that she provided three separate proposals to the father. She says that he provided one proposal in return. On her account, the father was agreeable to the idea during most discussions and the focus of their conversations was primarily to do with the care needs of the children if they were to move interstate. She says that for that reason, she began to research appropriate schools for X and also began looking for work in Darwin.
[3] Trial affidavit, Ms Plant, at [27].
In January and February of 2015, some email exchanges occurred between the parties which Ms Plant says show the father’s attitude to relocation at that time. Those email exchanges have been annexed as exhibits P-2, P 3 and P 4 to her trial affidavit. It is simplest if I incorporate them into my reasons.
27 January 2015 at 10:51am – Email from Ms Plant to X
“Mr Jowett,
Attached the parenting order I mentioned yesterday I put together over the weekend at your request.
This parenting plan outlines what you requested with Ms H and myself in mediation.
(That you are to pay no maintenance in the future for the children and if you wish to see the kids through the school terms – long weekends etc, you can use the money you would have paid for maintenance to organise extra flights to see them as well as school holiday flights that I pay for.)
thanks”
30 January 2015 at 9.32am – Email from X to Ms Plant
“Also due to your constant annoying changes and decisions the original decided plan was not followed by allowing me to have the kids for a longer period of time prior to leaving at the end of 2014.
From this and your decision also to not allow 50 50 shared care with the children throught (sic) the years of 2012 2013 2014 due to sheer spite. Im (sic) finding it very hard to beleive (sic) you will stick to this possible agreement as we mentioned to Ms H in mediation.
Also you have not added in all previous child support issues will be removed and not pursed (sic) for collection.
With all these issues Ms R I do not beleive (sic) you will follow a provided parenting plan. Considering we have already got a valid court order which you have not followed and I was at expenses from for no reason other than you and your spite. For me to consider this possible changes I want my previous expenses paid for.”
3 February 2015 at 11.41am – Email from X to Ms Plant
“An answer would be nice Ms Plant.”
13 February 2015 at 5.00pm – Email from Ms Plant to X
“Hi Mr Jowett,
Re: Your last email,
Are you proposing that you will agree to the parenting plan that I provided you dated the 27/01/2015 on the condition that all outstanding child support owing to me be forfeited? I disagree with the above in principle but will accept this proposal as a condition of relocation to Darwin.
After speaking with a lawyer to get some advice on how we develop and submit a consent order, I have been informed that consent orders will not be approved by the court with child support arrangements like we had in our last order like with this time as well though, you not paying anything. They will not do it this way anymore for any case. The only way the court will agree to this being put in the consent orders if it is agreed that ‘I do not make an agency collect for child support for a limited period of time’.
Attached is a copy of the parenting plan amended including the above mentioned. Please read and review.
Please contact me if you require further explanation on any of this if you like.
Once we have both reviewed and agreed on the terms I will progress having the parenting plan made in to consent orders at no expense to you other than any legal advice you choose to seek of your own accord.”
17 February 2015 at 11.25am – Email from X to Ms Plant
“Ms Plant
In regards to the recent email and to confirm what I am talking about for my previous request I would like all my court costing paid for, this includes
My lawyer cost,
Settlement cost made to you,
And this new Civil law withdrawn.
These are my term to accept you relocating to Darwin, the rest of the talked about parenting plan im am fine with and if they require a time frame on non payments for 3 yrs, it can be done. (sic)
I will agree to the move if all the previous expenses are met and all excess costings withdrawn or cancelled as per the new proposed parenting plan.
Leave it with you to look over.
Mr Jowett”
Ms Plant says that in none of the discussions that she had with Mr Jowett did he ever raise a concern about the lack of time he would be likely to have with the children should she relocate to Darwin with them.
The issues discussed in the above emails with respect to child support payments had been a matter of ongoing dispute between the parties.
Child Support issues
The current orders[4] relevant to child support and children’s expenses are set out at the beginning of these reasons. In summary, they provided for:
a)The father to pay $200 per fortnight in lieu of an assessment by the Child Support Agency;
b)The father to pay half of the education expenses; and
c)The father to pay for the children’s swimming classes.
[4] Paragraph 17 of the current orders was discharged by this Court on the application of the mother on 9 September 2015.
Ms Plant’s trial affidavit alleges the following chronology:
a)Ms Plant says that between the date of separation and the date of the current orders, various assessments were made by the Child Support Agency. She says that the father accrued arrears of $9,000 in unpaid child support during that time. When the current orders were made on 21 November 2012, they provided for the father to make periodic payments of $200 per fortnight in lieu of a formal child support assessment, as well as one half of the children’s educational expenses. In return for this, Ms Plant says that she agreed to waive the arrears for child support in excess of $9,000. Notwithstanding these orders, Ms Plant says that she only received two periodic payments from the father of $200. These were on 18 December 2013 and 19 June 2014. She says that when she approached the Child Support Agency in June 2014, seeking assistance to recover the arrears owed by the father, he submitted a formal objection.
b)In November 2014, the Child Support Agency recovered and paid to the mother the sum of $1,150.31 from the father. This covered the period of 16 March 2014 to 15 June 2014. Ms Plant says that between 10 November 2014 and 9 September 2015, the father commenced making regular child support payments via the Child Support Agency.
c)Ms Plant pursued recovery of arrears owed by the father between 24 November 2012 and 16 March 2014 in the sum of $6,875.18 by way of a minor civil action in the (omitted) Magistrates Court.
d)This Court made an order discharging paragraph 17 of the current orders on 9 September 2015.
e)On 5 November 2015, Ms Plant says that she received a letter from the father’s lawyers indicating that he was no longer prepared to comply with paragraph 15 of the current orders, and would not contribute one half of the children’s educational costs except for extra-curricular activities. This is because the child support payments now being made take account of the educational costs.
f)On 11 December 2015, the (omitted) Magistrates Court entered a judgment against the father in the sum of $5,000 for arrears accrued during the period of 21 November 2012 to 16 March 2014. Ms Plant says that to date she has not been paid that amount.
g)Ms Plant says that from 13 December 2015 to the present day, the father has made regular payments through the Child Support Agency collection process on the basis of an updated Child Support Assessment.
h)Annexed to Ms Plant’s affidavit and marked P-19, is a copy of a retrieved text message exchange between her and Mr Jowett from 6 December 2011 in which she raises with him the fact that he had not paid any child support for a considerable period of time and his apparent dissatisfaction of the amount for which he was liable given his financial circumstances. Ms Plant says that the father has told her on a number of occasions that he was not liable for arrears by virtue of the $10,000 settlement in the current orders. She says that he has not acknowledged that that amount was in finalisation of matrimonial property and not child support.
Ms Plant says in effect that the position taken by the father with respect to child support is unreasonable. She believes that he receives an (employer omitted) pension of approximately $68,000 per annum, in addition to his income from his business. In contrast, at the time of signing her trial affidavit, she earnt an amount of $2,032 per fortnight and some Centrelink benefits. She says that the father’s actions with respect to child support caused her financial hardship which affected the children. The father’s (employer omitted) pension is a disability pension as a result of injuries he sustained while in (employment omitted). In cross-examination, Ms Plant agreed that these injuries do not affect his parenting abilities.
Miscellaneous matters
With respect to the father’s initial proposal for parenting arrangements, Ms Plant says that a week-about care arrangement would not be in the children’s best interests. She surmises that the father’s initial request to change the current orders only arose in response to her application to be allowed to relocate with the children to Darwin. As far as the impact of the orders she seeks on the relationship the children have with the father’s extended family, Ms Plant says that to the best of her understanding, neither of the paternal grandparents live in South Australia. To her credit, she acknowledges that the children appear to have a good relationship with Ms R and she understands that the children have had some interaction with the father’s brother, Mr P.
When cross-examined about the Family Assessment Report, Ms Plant denied she had told the children that they had to agree on a relocation to Darwin. She said that she had never told Y that she needed to choose between herself and the father. She was cross-examined about the Notice of Risk filed on her behalf in this matter. She maintained that it was her view that around June 2015, that the father had a serious parental incapacity. She clarified this by saying that in making that allegation, she was referring to risks other than games, and referred to the type of food the children had been fed, Y having lice in her hair, and problems that were, “here, there and everywhere”. She denied that she was exaggerating at that time. She described the head lice incident with Y in January 2015 in terms that suggest that it was a serious infestation. It was suggested to Ms Plant in cross-examination that she had been selective in her trial affidavit when describing the problem with head lice. Two text message exchanges were tendered by the respondent as Exhibits R6 and R7 which showed that Y had developed head lice whilst in the mother’s care. She acknowledges that she had not annexed those text messages to her trial affidavit. She said that when Y developed head lice whilst in her care, she did not feel negligent. She did however, feel that the father had been negligent on the first occasion the children had contracted head lice in his care. She has no lingering concerns about the question of head lice. She maintains that she still believes that the children do not shower whilst in the father’s care and referred to an infection Y contracted in July 2014. She did not discuss such matters with the father because most discussions with him are hostile and she tries to avoid arguments with him. With respect to her concerns about food and diet, Ms Plant acknowledged that she based all of her concerns on what the children had told her. She acknowledged that she had not asked the father if the allegations were true. She conceded that it was possible that the children were playing her off against the father. She did not believe that that was the case. Whilst she maintained that the children had complained about the large number of chores they were required to do at the father’s house, she acknowledged in cross-examination that in hindsight this was not really an issue.
Ms Plant maintained in cross-examination that the children complained that the father spent all of his time in front of the television and on video games. She accepts what they say about this and maintained that it was an ongoing concern. She was adamant that she did not prompt the children to make these complaints.
Another significant allegation made by the mother was that there was a pattern of the children staying home from school whilst in the father’s care. It was put to her that she was exaggerating this. After some cross-examination, she accepted that she had exaggerated the problem of absenteeism in 2015. She maintained that the children complained that the father did not assist them with their homework and that she was not exaggerating on this matter, but she acknowledged that the situation had improved and that the father was now using the school communication book. She acknowledged that the school had not raised any concerns about the children not having completed their homework.
By the end of her cross-examination, Ms Plant had accepted that there were some areas she had exaggerated, but maintained that she still had important and ongoing concerns about the children whilst in the father’s care.
Evidence of Mr D
The applicant relied on the affidavit of Mr D dated 3 May 2016. He was 35 years of age. He says that he has known Ms Plant for over a decade, and that the relationship commenced in (omitted) 2013. He says that they are in daily contact and both have travelled between Adelaide and Darwin as often as possible to be together. This has become more difficult because of the significant expenses associated with travel and legal costs. He said that he regards himself as being in a committed relationship with Ms Plant that is close, loving and supportive. He confirmed his intention to marry Ms Plant and have children.
He is employed as an (occupation omitted) at a (employer omitted) in Darwin. He currently earns about $150,000 per annum. This is a highly specialised role and he says that there would be no equivalent work for him in South Australia.
Mr D enjoys equal shared parental responsibility of his daughter, A, who is 10 years old. She lives with him on his rostered days off. A is in his care each weekend during the school term, on all public holidays, and one half of the school holiday periods. He says that A regards Ms Plant as her step-mother and describes their relationship in terms that suggest Ms Plant is very involved with her. He says that his daughter gets on very well with Ms Plant’s children and that she appears to understand X’s language disorder and is patient and considerate towards him. His daughter is close with Y and they share many common interests. He has facilitated contact between his daughter and Ms Plant’s children at times when they are not all together.
Mr D describes his relationship with Ms Plant’s children in terms that suggest that he has a deep, genuine and caring involvement with their lives whenever he is with them. He describes himself as being fortunate in his relationship with the children and takes pride in it. He says that he expresses his affection to the children, and that they return that affection. When the children are in his company, he says that he is very actively involved in their daily routines.
With respect to X, Mr D says that he has been at pains to educate himself about language disorders. He is committed to properly understanding X’s conditions. In this regard, he has consulted with his father, who held a position as a (occupation omitted) in the (employer omitted), and who has some insight into X’s condition. He confirms that he did a lot of the leg work and research into finding the most appropriate schools for the children in Darwin.
Annexure D-2 to this affidavit, details 24 occasions between January 2014 and 16 March 2016 on which he has either travelled to Adelaide, sometimes with his daughter, or Ms Plant has travelled to Darwin, on three occasions with her children. On five occasions, his visits to Adelaide have been for a single day. In 2015, his trips to Adelaide coincided with both X and Y’s birthday parties. Mr D regards himself as a step-father to the children. His affidavit details the many types of recreational activities he is engaged in with the children when they spend time together. He confirms that Y is enrolled at (omitted) Primary School and X is on the passive list to attend (omitted) Primary School. X had previously been enrolled to attend (omitted) between December 2015 and 22 April 2016, but this position had to be vacated due to the uncertainty as to whether relocation would be permitted.
Mr D has a modern three bedroom home in Darwin which he says has been “equipped” for the arrival of Ms Plant and the children. His house is 10 minutes from the (omitted) Primary School, and 5 minutes from the (omitted) Primary School. It is close to recreational and medical facilities. He has a supportive network of friends in Darwin.
Understandably, Mr D was not cross-examined at great length by counsel for Mr Jowett. He confirmed that he was prepared to support Ms Plant and her children financially and that he would be willing to pay airfares for the travel involved in complying with any orders made by the Court. In re-examination, he confirmed that he has provided significant assistance to Ms Plant in paying her legal fees associated with these proceedings.
Evidence of Ms S
The applicant relies upon a report prepared by Ms S dated 12 August 2015, and annexed to her affidavit as P-16. Ms S also attended to give evidence in chief and was cross-examined. She is a Family Relationships Counsellor with Anglicare SA. Her qualifications include a Graduate Diploma in Systemic Practice and Family Therapy, a Certificate in Family Therapy Training, a Diploma in Counselling and Group Work, and studies towards a Graduate Certificate in Community Mental Health. She has been involved in providing counselling services since approximately 1985. She has also been a member of various committees and working parties and is presently on the board of the Southern Domestic Violence Service.
Ms S met with X on seven occasions between 16 February 2015 and 13 July 2015. The first appointment was for the purpose of an assessment. The first counselling session occurred on 30 April 2015. She says that on each occasion she saw X, she spoke first with the applicant for a brief period and then conducted sessions with X alone. She confirmed that the reason for the initial assessment was because of violence X had displayed at school. X said at the assessment session that he was being bullied at school. Ms S said that the applicant confirmed that X was having nightmares and that she was concerned about his visits with his father. The applicant advised that the father was playing inappropriate X rated games and believed that this was the cause of his dreams. Over a number of sessions X discussed that he had been watching zombie games which had scared him. He appears to have been under the misapprehension that zombies were real and were coming to get him. Ms S said that this view was very entrenched. She described him as having an apparent obsession with zombies and says that his description of the violence in various games was very graphic. He reported that all he did at his father’s place was play games. She reports that on one occasion Ms Plant brought in two bags of cut out zombies drawn by X and said that there were “hundreds of them”. She got the impression that as the sessions progressed and X said that he was no longer playing games, that he might in fact have been trying to protect his father.
Ms S’s impression of X when she first consulted with him, was that he was very angry and that he displayed aggression towards children at his school and towards his sister. He demonstrated a high level of fear and she connected these with the video games. Through the course of the session she noticed a positive change in him and believed that counselling had assisted. She discussed various coping strategies with X and explained those to Ms Plant. It was her conclusion by the end of her time with X that he had been adversely affected by his exposure to inappropriate computer games. She also believed that his speech difficulties made him vulnerable in the school environment.
In examination in chief, Ms S said that when describing the content of the games, X described arms being cut off, blood spurting and people killing themselves. She said that he appeared hyperactive and looked scared when giving these descriptions. She was adamant that he had said that he had seen these at his father’s place.
When she saw X on 14 May 2015, she said that he was still having nightmares, still convinced that zombies were real, still angry, and that zombies was all he wanted to talk about. She was not able to get him to talk about school. He told her that his father plays games with him and that every time that he went to his father’s, all they did was play computer games and watch television. Ms S said that she told Ms Plant that it would be a good idea to speak to the father and tell him what the games were doing to him. She said that X displayed the same hyperactivity when describing zombie games on 25 May 2015, but that he claimed that his father was not playing zombie games and instead was playing violent alien games. He spoke a lot of his nightmares on that occasion.
During the fifth session on 11 June 2015, Ms S noted that X appeared to be more settled at school and that he was telling his teacher if he had been bullied by students.
On the day of the last session, Ms S said that X was extremely hyperactive, would not sit still, and did not wish to partake in counselling. She said that he said words to effect, that his father had told him he did not have to be there. This was not something contained in her notes, but she said that she had a definite recollection that he had said that.
In cross-examination, Ms S readily conceded that she was not a psychologist. She said that 10% of her work in counselling involved children. She confirmed that she had also made an assessment of Y, who seemed to have a low level of anxiety, but was otherwise chirpy and happy, and there was no need to engage in counselling with her. Ms S confirmed in cross-examination that she took a history from Ms Plant and that initially Ms Plant’s focus was on X’s behaviour at school and his misbehaviour. She said that Ms Plant did not go into a great deal of detail about her relationship with the father on that occasion. Her evidence was that Ms Plant did not specifically say that the cause of problems at school was because of the video games played at the father’s house. Ms S said that it was she herself who made the link. X himself did not draw that link. She said that she made an assumption that the games were “X rated” from the description given to her. On some occasions, Ms S said that she got the impression that X was being untruthful with her with respect to denying nightmares, specifically because she suspected that he was protecting his father and was worried that his father was in trouble. She herself had not seen or watched any of the games that were being discussed and says that the only game named by X was one called “(omitted)”.
Ms S had no recollection of telling the mother not to contact the father to discuss the counselling sessions with him. She said that she would have been happy to speak with the father and agreed that it was more likely that she would not have told Ms Plant not to discuss the counselling sessions with the father. Her evidence was that she had never told one parent not to talk to another parent about counselling, or to not advise them about it. Her reason for speaking with the mother after each session was to reinforce strategies which she had given to X and acknowledged that it might have been optimal if the father was present for some of the feedback sessions himself.
Ms S denied, under cross-examination, that Ms Plant directed the session towards focusing on the father. In the second session, the focus was on the father, because that appeared to be all X wanted to talk about. It was during the second session that she decided that the games and bad dreams were linked to his behavioural problems. She stated that by the second appointment, Ms Plant told her that the father had said he was only showing PG material to X and that she was not aware whether any PG videos involved zombies or aliens. She said that by the second consultation, she was aware that the mother wanted to stop the children from seeing the father, although she herself did not have a view that X should not see his father. She did not consider that X’s reluctance to engage with her on occasions was because he was being untruthful about having seen zombies at his father’s house. She described X’s interest in zombies as a fixation and an obsession. Y did not seem to share this obsession. As to whether X was present during any of the feedback sessions with Ms Plant, Ms S was adamant that she would have stopped the mother from giving theories about the father if she started to mention these things in front of X.
During the session of 20 May 2015, X disclosed that he was not playing zombie games the last time he visited his father, he had been playing an alien game where there was still violence. She could not recall whether she gave that feedback to Ms Plant.
Ms S conceded that at no stage did she have the father’s contact details and did not seek them from Ms Plant. She conceded that to that extent, her background information was not a complete picture. She did not consider whether the mother had two motives in seeking counselling, one being to stop the children from seeing the father. Ms S said that it was the extremity of the games described that were of concern to her. She was not familiar with the game called, “(omitted)” and says that X did not mention that game during his session either at his father’s or at school. She assumed the only place he could have played the relevant games was at his father’s house. Ms S conceded that she could not comment on the interaction between what X had seen and what he might have imagined.
As far as Ms S could recall, she did not think X had been present when the mother told her that she was hoping to move to Darwin fairly soon.
Evidence of Ms L
Ms Plant also relied on the evidence of Ms L, the Principle of (omitted) Primary School. (omitted) Primary School is a specialist school for students with mild, moderate and severe disabilities. In addition to schooling provided at its own campus, the school has satellite classes based at primary schools for 4 days a week and 1 day at the (omitted) campus per week. Ms L confirmed that approval has been obtained from School Support Services to enrol X at (omitted) Primary School and he has been allocated a space in (omitted) Primary School satellite class. With respect to X’s speech difficulties, (omitted) Primary School is supported by Department of Health speech pathologists, occupational therapists and physiotherapists to whom X could be referred. The school is prepared to work with families who use private therapy providers and implements recommendations from those providers as necessary. Being a part of a satellite class would allow X an opportunity of working in a regular primary school environment. The school provides an extensive program of extra-curricular activities.
In examination-in-chief, Ms L confirmed that X would be able to commence as soon as he arrives at the school and that a place was available for him. Ms L had not yet met X and could not speak directly about his needs, but she emphasised that (omitted) specialises in teaching all students with a broad range of disabilities. Each class has both a teacher and a special education support officer and sometimes three people allocated to it.
In cross-examination, Ms L confirmed that X was on the passive roll, but that there was a place identified for him in a classroom at (omitted) Primary School. When attending at (omitted) School, she indicated that the child would be in his own classroom run by (omitted) teachers, but contained within the broader school environment. Students in such satellite classes interact with mainstream classes and it was likely that X would spend some time in a mainstream class, depending upon his abilities. Ms L reasonably conceded that she could not comment on the impact to X of having yet another change of school, having only moved to his present school at the beginning of 2016. She said that there is no charge for the speech pathologists provided by the school. At the time of giving her evidence, there was no delay in engaging speech therapists, but quite reasonably, Ms L said she could not comment on what might occur in the future. She was not able to comment on whether X’s enrolment forms included the father’s contact details.
Both parents support an order for equal shared parental responsibility. I find that the presumption of equal shared parental responsibility has not been displaced in this matter. Accordingly, the presumption applies.
My finding that the presumption applies in this matter of course does not answer the question of how much time X and Y should spend with either parent, this issue requiring a consideration of s.65DAA and s.60CC. Pursuant to that section, I must consider whether it is in the best interests of a child to spend equal time with each of the parents and whether such an order would be reasonably practicable. If I find that equal time was not in the best interests of the children in this matter, or that it was not reasonably practicable, I must consider whether it is in the best interests of X and Y to spend substantial and significant time with each of the parents and of course, whether that is reasonably practicable. The Act sets out the minimum parameters that must be present before a child would be taken to spend substantial and significant time. It also sets out those matters to which the Court must have regard when determining what is reasonably practicable in the circumstances. It has been said that the requirement of reasonable practicability involves a practicable assessment of what is feasible.[38]
[38] MRR and GR (2010) 240 CLR 461 at [15].
Another important aspect that I must consider is the right of a parent to freedom of movement. This right does not assume primacy over the best interests of the children, which will always be the paramount consideration. The best interests of the children are not however, the only consideration and I must have regard to the legitimate and heartfelt desire of Ms Plant to pursue her relationship with Mr D in Darwin. She is entitled to begin a new life and there is no overriding principle that she must live in close proximity to the father until the children reach the age of 18 years. These difficult questions were dealt with by the High Court in AMS & AIF; AIF & AMS[39] to which I have given consideration.
[39] (1999) 199 CLR 160.
In considering where the best interests of X and Y lie, I have had regard to the framework in s.60B of the Act which sets out the objects of Part VII and the principles which underlie those objects. The objects of course are addressed in the considerations to which I must have regard in s.60CC, which sets out how I am to determine what is in the children’s best interests requiring a consideration of those matters in subsections 2 and 3.
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child's parents
It is clearly in the best interests and will be beneficial to X and Y to have a meaningful relationship with both Ms Plant and Mr Jowett. Both children are attached to and love each parent. Both children clearly value their time with each parent. I accept the evidence of Ms M that both parents have strength to their parenting capacity and that there is no reason to doubt the capacity of either of them to parent the children appropriately. The mother is the primary carer for the children and has been throughout their lives.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Neither party has made a suggestion that the children are at risk in the care of the other. There is no suggestion that there have been episodes of family violence. There is no evidence before me of either children ever having been subjected to physical harm at the hands of either of the parents. The wife contends that the video game playing habits of the father have had a deleterious effect, in particular on X. Whilst there is some weight in that submission, I am not satisfied that it can be established that either of the children is at risk of psychological harm in the care of the father. I will further discuss the evidence of video games in my findings later in these reasons.
Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
This consideration is subject to the maturity level of the children. They are both young. I accept the evidence of Ms M that given the age of the children, and X’s particular difficulties, they could not be regarded as reliable witnesses with respect to their preferences on a matter as complex and delicate as relocation to Darwin. I did not understand Ms M to be suggesting that the children were so young or so unreliable, that no weight could be given to their views. I draw a distinction between the views and opinions expressed by the children as reported, and comments and observations they have made about things they have experienced and observed. Both children have expressed positive feelings towards both of their parents. Y, in particular, has said that she would like to live with both of her parents. It seems clear as a general proposition, that X enjoys the time he has with his father. Both children have significant reservations about the amount of time their father spends playing computer games and X has clearly expressed his fear to Ms M about being able to hear the games at night time. Both children have expressed an interest in moving to Darwin, although Y later expressed reservations when spoken to by Ms M. I take into account the views expressed by the children from time to time as reported by both parents and to the report writer. I give the views of the children some limited weight.
Section 60CC(3)(b) - the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child)
The relationship the children have with Ms Plant and Mr D is clearly strong. Ms Plant’s account of the closeness between the children and her new partner is corroborated significantly by the observations of the report writer. Even allowing for the fact that the enthusiasm of the children for Mr D was significantly affected by the fact that he arrived in Adelaide only on the day of the interview for the report, it is clear, they are close to him. I accept the evidence of Ms Plant as to her relationship with the children. I accept the evidence of Mr D as to the efforts he has made to engage with the children and the reciprocal affection they share.
Similarly, the children have a close relationship with their father and his new partner, Ms R. I accept the evidence of the father that he takes an interest in and tries to engage with the children’s schooling. I accept that both he and Ms R engage in extracurricular activities with the children. I accept that Ms R makes efforts to foster Y’s interest in reading. It is of some concern that the father does not see his video gaming as a problem in his relationship with the children. That is clearly not the way the children see it.
I accept that the children have contact with both of the father’s parents and his brothers, and there is no reason to doubt the father’s evidence that the children have always had a positive relationship with his family.
Section 60CC(3)(c) - the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; to spend time with the child; and to communicate with the child
The father took some interest in the change of school for the children, but I accept that the mother’s greater involvement in this regard probably reflects the fact that the father had reservations about changing Y’s school. I accept that the father provided the mother with some information with respect to the National Disability Insurance Scheme, however it seems clear that it was the mother who did most of the leg work in terms of making the enquiries and application that led to the support X now has open to him. There was an opportunity in this regard for the father to engage in co-operative parenting, but it appears that he was content to allow the mother to explore the options. Both parents have the ability to inform themselves and make meaningful contributions to and decisions with respect to major long-term issues for the children. The father has, since separation always attempted to ensure that he spends a significant amount of time with X and Y.
Section 60CC(3a) - the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The father has clearly had a problem with paying child support. He seems to have resented paying child support in the past. He has not prioritised the interests of the children over his acrimony and grievances towards the mother. The same problem reared its head when he conceded in cross-examination that he had no intention of paying for school fees, books and clothing, if the children moved to Darwin. That evidence was not, in my view, simply a slip of the tongue. He was given an opportunity to consider his answer. That answer, and indeed the father’s past history with respect to child support payments, demonstrates a degree of lack of child focus. When it comes to financial issues, there has been tendency on the part of the father to focus on residual resentment towards the mother. His attitude towards contributing to the education costs in the Northern Territory seems to be couched more in terms of winning or losing this trial, rather than an objective acceptance that such issues have a direct bearing on the well-being of the children. It matters little in that context whether Ms Plant and Mr Jowett can afford the school fees, books and clothing required for the children if they be permitted to move to the Northern Territory. The father has a responsibility to make such a contribution to the children’s education in so far as it is possible for him to do so. A failure to do so would be more than simply a failure to make a financial contribution where it was needed. It would represent the father denying himself and the children of the opportunity for him to play that role in the children’s lives. In the event of relocation it would beneficial for the children to know that even though they lived a long way away from their father, that he still cared enough for them to help give them the best education possible in the Northern Territory. That distinction appeared to be lost on the father. As I have said, as far as financial issues are concerned, he seemed, to some extent, to be focused on winning or losing and outcomes, rather than the interests of the children.
Notwithstanding this, I accept the evidence of Ms R, Ms M, and the father’s own evidence that he cares deeply for the children.
Section 60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from, either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
A relocation to Darwin would have a significant impact on the children. They are young and have only really spent time in Darwin as visitors. It is difficult to know exactly how they would cope with the change. This is a common dilemma in parenting matters, where the necessity to make orders catering for the future will often require a degree of prediction, assumption about the future, and intuition on the part of the trial judge.[40] For X, a move would mean adjusting to a regime where he was educated between two campuses. However, in (omitted) Primary School he would have the benefit of a school that specialises in catering for children with a range of special needs. There is no reason to doubt the evidence of Ms L to the effect that a child with X’s needs can be well catered for at (omitted). It appears to be a school with significant expertise and appropriate supports, and once settled, X is likely to benefit significantly from it. As to the impact of the dual campus, this is something of an unknown. X has adjusted to some early difficulty to his change of schools in early 2016. There is likely to be a period of adjustment for him if he moves to (omitted) Primary School and that may well present difficulties for him. He has demonstrated in the past that he is capable of doing well after adjusting. Any difficulty he had in adjusting to (omitted) and the dual campus structure would occur in the context of a school that has a high level of expertise in dealing with children who have special needs. On balance, I think it is likely that after an initial period of adjustment to a new town and a new regime of family life, he would cope adequately in the supportive environment that (omitted) provides.
[40] CDJ v VAJ (1998) 197 CLR 172 at 218-219.
If X and Y were to remain at their present school, they would be in an environment familiar to them and in which Y appears to have thrived. It is a school that seems at least to have catered adequately for X’s particular needs.
Both X and Y would miss their father, Ms R, her daughter, and members of their extended families should they relocate to Darwin.
Y has also adapted to the change of schools in early 2016. She is a bright, happy and sociable child. She appears to have no difficulty in making friendships and I am satisfied that she would do so if she were to move to Darwin. To that end, both children have developed what I accept as a close relationship with Mr D’s daughter, and the process of making connections and establishing supports for the children in Darwin, whilst in its infancy, has already begun.
I accept that both children have a connection and spend time with the father’s mother and brothers. I accept that they are close to Ms R. A relocation to Darwin would have an impact on the ability of the children to maintain a connection with the father’s mother and brothers. It would have less of an impact on their relationship with the paternal grandfather, who resides in Queensland, and with whom they have intermittent contact.
I accept that over the past year or so, X’s socialisation and language difficulties have improved as he has become more confident. He will lose the stability of his friendship base in Adelaide, as well as his involvement with his (hobby omitted) team, in the event that he were to move to Darwin.
In my view, the likely effect of a relocation to Darwin on the relationship between the children and their father would be that it would diminish. This is not simply because of the different time arrangements that would necessarily flow from a relocation, but also as the father points out, because of a lack of spontaneity. Whilst I think it is likely that communication by Skype, if implemented effectively, would go some way towards ameliorating this, the nature of the relationship is nonetheless likely to change. Conversely, should the children move to Darwin, the already established relationship with Mr D will no doubt strengthen. The likely effect of a relocation would be that Ms Plant’s relationship with Mr D will grow and strengthen. To the extent that it does, both children will have the benefit of that more fully developed and stable relationship. Should Ms Plant and Mr D succeed in their plans to start a family together, then the children will have the benefit of that new family dynamic. Of course, to make this observation simply underscores the fact that there will be a diminution in the benefit to the children of more frequent exposure to the stable and loving relationship of Mr Jowett and his partner.
As I have already noted, the mother is the primary carer for the children. Matters that have an impact on her happiness, well-being and stability will necessarily have a significant, and in this case likely beneficial, effect on the children.
I accord greater weight to the impact of a change of circumstances on the children’s relationships with both of the parties and their respective partners, than I do to members of the extended family, although I do not discount the effect that any change in circumstances would be likely to have on the relationships with the extended family members.
Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
Any interstate relocation has significant practical difficulties with maintaining contact with the parent who does not have primary care of the children. The proposal put forward by the mother that she, with the assistance of Mr D, pay for the airfares to enable the school holiday contact time with the father to occur represents a very significant financial undertaking on her part. Mr D earns a good income and I think it is likely that the mother will succeed in her efforts to obtain employment. She has been able to balance employment with parenting successfully to date. The mother has proposed that she would travel with the children, if airline policy did not permit unaccompanied travel, and or until the children are comfortable with unaccompanied travel. I accept the evidence of Ms Plant and Mr D that they would meet the costs of this travel. They have already demonstrated a significant commitment to travel expenses in order to maintain their relationship over the past years.
The mother’s proposal in this regard significantly reduces the impact of expense to the father that would be occasioned by the children’s air travel. He would nonetheless still bear significant expense for any additional time agreed between the parties and in the event of a family funeral. Under the mother’s proposal, the vast majority of the expense would not fall to the father. The father has the benefit of a pension from the (employer omitted), and income from his business. I am satisfied he would be able to meet the potential travel expenses that would fall to him if the mother’s proposal is granted.
Whilst there have been difficulties in the co-parenting relationship, I accept the evidence of Ms Plant that she would do all things necessary to facilitate Skype communication with the father. I accept the evidence of Ms M that Skype communication, particularly for younger children, is not an easy form of communication and that significant effort will need to be made in order for it to work. That effort would need to be made by both parties. Telephone or Skype contact has not been a recent feature in the children’s relationship with their father. It seems that the children have not sought it and neither party has pressed the issue. It remains to be seen how well it would work. They are however, both at an age where Skype or a similar service, would be feasible for them.
Section 60CC(3)(f) – the capacity of each of the children’s parents and any other person to provide for the needs of the children, including their emotional and intellectual needs
I accept the evidence of Ms M that the father and his partner are in a stable relationship. I accept her assessment that with respect to both parents, there is no significant issue with respect to their capacity to adequately parent and provide for the children, both emotionally and intellectually. I have some reservations about the father’s apparent lack of insight into the effect of his gaming hobby on the children’s need to have his attention and spend time with him, but I do not find that it means that he could not adequately care for the children. With respect to both Mr D and Ms R, I am of the view that both of them have, and are capable, of further developing a close and nurturing relationship with the children.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant
The children are young and to date have had the benefit of a relationship with both of their parents. Their lack of maturity would mean that they would need considerable support from both parents should they be permitted to relocate. The child, Y, appears to be vivacious and resilient and she will likely thrive under a continuation of the current orders, or a move to Darwin. The child, X, will no doubt continue to make progress if he were to remain in Adelaide. I am satisfied that he would also continue to make progress if he moved to Darwin.
Section 60CC(3)(h) - if the children are Aboriginal or Torres Strait Islander …
This matter is not relevant to these proceedings.
Section 60CC(3)(i) - the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
As I have already observed, both parents love the children and, as Ms M observed, have worked hard, albeit very often separately, to meet their responsibilities as parents.
Section 60CC(3)(j) - any family violence involving the children or a member of the children's family
This matter is not relevant to these proceedings.
Section 60CC(3)(k) - if a family violence order applies, or has applied, to the children or a member of the child's family--any relevant inferences that can be drawn from the order
This matter is not relevant to these proceedings.
Section 60CC(3)(l) -whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The relationship between Ms Plant and Mr D has been ongoing now for over three years. I think it likely that if I were to decline to make this order, then further proceedings will inevitably be instituted seeking to have the children relocate to Darwin. That in turn would inevitably involve the children in further conferences and assessments. Whilst such a consideration is not determinative, I give some weight to the proposition that it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. It is important for the children that there be finality in the parenting arrangements.
Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant
I will deal under this heading with some aspects of the parties’ claims against each other. I acknowledge some of the matters I refer to below are also relevant to some of the considerations listed above.
The father’s gaming habit is clearly an issue for the children. Y, in particular, has mentioned that she would prefer her father to spend less time gaming and more time interacting with her. The father’s lack of insight into the perspective of the children about this, suggests that he needs to be more child focused in that regard. To an extent that I am not able to determine, it is most likely that X has been exposed to some inappropriate adult gaming content. Whether this is through watching his father play games, or simply hearing the games at night, I am not able to say. The child had a fixation with zombie games, in particular, and adult games in general.
I accept the mother’s evidence that at times this was something that caused X significant distress. I accept the evidence of Ms S that when the subject of games was raised, it seemed to be all that the child wanted to talk about.
If the father permitted or encouraged the child to play adult games that displayed high level violence, gore and demonic themes, then that would clearly have been not child focused and inappropriate. The father maintains that he did not do this. I am not able to make a positive finding that the father did allow the child to play such games. I am not able to determine whether X’s reports to his mother that he had been playing such games was fact or a product of his imagination. I think it most unlikely that X’s fixation with, for example zombie games, was a product simply of having watched the children’s cartoon series, “(omitted)”, or playing what has been described to me as a low level cartoon zombie game called “(omitted)”, whilst at school. I think it most likely that on some occasions, whilst at the father’s home, X has seen games with inappropriate content. The father will need to make all efforts in future to ensure that neither of the children are exposed to video games with inappropriate adult content. Whilst this aspect of the evidence is a matter of some concern to me, it does not cause me to doubt the validity of Ms M’s assessment that the father is fundamentally doing his best to be an appropriate and conscientious parent or that he has strengths as a parent.
The mother raised a number of concerns about the father’s capacity to care for the children. This related to the children having contracted head lice, the type of food the father gives to the children, and whether or not their hygiene needs are being met whilst in the father’s care. The mother herself retreated somewhat from these allegations during the course of her evidence. I am not satisfied that the concerns identified by the mother are of significant weight in the context of these proceedings.
A significant aspect of the father’s case against the mother being permitted to relocate with the children is that her past conduct suggests she will not have the necessary commitment or courtesy towards him in order to sustain a co-parenting relationship over such a long distance. One example of the mother’s unwillingness or inability to keep him informed of important matters, was the counselling X received from Ms S. Whilst Ms Plant did advise the father about the fact of the counselling, she did not follow up with him by sharing the strategies given to her by Ms S to assist X. It was in X’s interests that she do so. I accept the evidence of Mr C that she cannot recall having told the mother not to discuss the counselling with the father, and that it was not and never has been her practice to tell one parent not to discuss counselling with another. I find that Ms Plant made that decision herself for reasons that are not entirely clear to me. I decline to draw an inference that the mother’s motivation for having Ms S see X was simply to create a forensic weapon to use in these proceedings. I am satisfied that her concerns for X and her degree of child focus was such that she would not have deliberately withheld relevant information from the father if she believed that it would be against X’s interests for her to do so. Nonetheless, her failure to share Ms S’s advice with Mr Jowett was a significant lapse on her part and indicative of the breakdown in communication between them.
Having made that observation, as was acknowledged by both Ms M and Mr Jowett, the communication book does demonstrate that the parties have been capable of communicating important information concerning the children to each other in writing. The question of the parties’ ability to communicate is of course of great significance to the question of relocation. If the mother does not share important information about the children’s schooling, welfare, health and development with the father, then this will have a negative impact on the ability of the children to maintain a meaningful relationship with him. I am satisfied that the mother will in the future adequately communicate with the father, share information with him, and involve him in decision making with respect to important events in the children’s lives. There may well be some difficulties experienced by both parties in achieving this, but I am satisfied that both parties have sufficient child focus to enable it to occur.
The father’s trial affidavit raised an allegation, only faintly pursued in his oral evidence, that there was a concern that the mother had at one stage used illicit drugs and had them at her house. The father himself says that he no longer holds that concern. I am not satisfied that it has been demonstrated, either that the mother has previously used illicit drugs or that she had them at her premises. I am satisfied that the email from the mother’s former partner to the father about that matter was both malicious and mischievous.
I am satisfied that, when the matter was first raised with him, the father expressed a willingness to consider the mother’s relocating to Darwin with the children. I reject the comments made by him to Ms M, that his email correspondence about that matter was “just words”. He himself denied in cross-examination that he never had any intention of agreeing to Ms Plant relocating to Darwin.
In the father’s email to Ms Plant, in which he said that he would consider her proposal if his previous expenses were paid for seems consistent with the earlier attitude he had taken with respect to the issues of child support. In my view, the father has shown a tendency to view children’s issues in terms of winning or losing, and in that regard his dissatisfaction with child support and costs he has incurred post separation has at times coloured his judgment about children’s issues. I think that is the proper context in which to read his email of 17 February 2015. He may not have believed that the wife would ever agree to paying his previous expenses, but the fact that he even made the suggestion in the terms he did, shows some lack of child focus. I accept that he does not want to see the children move to Darwin, that he loves them deeply, and that he will miss them desperately, but there is an extent to which he has placed his financial interests ahead of those of the children. An example of this can be seen in his evidence under cross-examination when he said that he would not offer any amount with respect to the children’s education expenses should they relocate to Darwin.
Conclusions
As I have noted, the presumption of equal shared parental responsibility applies in this matter and both parties seek an order to that effect. I should indicate at this point, that whilst counsel for the respondent did not refer to the principle in Rice & Asplund in closing submissions, I have taken the view that the advent of the mother’s stable relationship with Mr D since Judge Brown made the current orders represents a significant change in circumstances that warrants a consideration of her application in this matter.
I am required to consider if it is in the best interests of the children to spend equal time or substantial and significant time with each of the parents. To date the children have not spent equal time with both parents and such a regime is not promoted by either party. Given the mother has been the primary carer, I am not satisfied that it is in the best interests of the children for me to now order that the regime be changed to allow for equal time. I note that Ms M herself favoured a continuation of the present time arrangements. As I have already noted, a consideration of whether the children spend substantial and significant time with each parent involves questions of both whether this is in the best interests of the children and whether such a regime would be feasible. Had the mother not been in a relationship with Mr D and simply made her application on the basis of a desire to live in another part of the country, then I would not be satisfied in that circumstance that it would be in the best interests of the children to change the present arrangements which allow the father to have substantial and significant time. As will be seen from what follows, I find that the best interests of the children are inextricably linked in the circumstances of this matter with the interests of the mother in being free to relocate to Darwin. It is not in those circumstances feasible that the children spend substantial and significant time with the father as defined in the Act. The distance between Adelaide and Darwin clearly means that it is not reasonably practicable for the children to do so.
I have concluded having regard to the terms of s.60CC of the Act, that it is in the best interests of the children that they be permitted to relocate to Darwin with their mother. It is axiomatic to that conclusion that I have concluded that it is appropriate in the circumstances that they live predominantly with the mother. Under the mother’s proposal, I am satisfied that the children would still be able to enjoy the benefit of a meaningful relationship with the father and his partner after relocation. They will be able to maintain their relationship with the father and it is possible to implement a significant regime of direct contact with him.
As I have noted, the mother has a right to freedom of movement. I am of the view that it is in the best interests of the children that their mother, as their primary carer, be at liberty to pursue her relationship with Mr D, marry and endeavour to have a new family without having to sacrifice her role as primary carer. If allowed to do so, I am satisfied that the mother, being fulfilled in this way, is likely to be a better parent to the children. They would clearly benefit from this. It would enhance their right to have a meaningful relationship with her. I note that considerations of this kind have been acknowledged by the Full Court in the matter of Fragomeli & Fragomeli.[41]
[41] (1993) FLC 92-393.
I am satisfied that it is possible for the children to have the benefit of a meaningful relationship with their father after relocation. It may not be an optimal relationship, but it can nonetheless be meaningful.[42] I note and give weight to the evidence of Ms M that the mother’s proposals for the father’s time with the children after relocation would allow a type of meaningful relationship. I am satisfied that the parties have demonstrated, notwithstanding previous difficulties, that they are capable of communicating effectively in writing where necessary. I accept the mother’s evidence that she would facilitate ongoing Skype contact with the father. I am satisfied that the mother’s proposals for the children’s schooling is appropriate and consistent with their best interests. In the course of my deliberations, I have considered the opinion of Ms M, that in the circumstances, the question of relocation should be delayed for the mother to demonstrate her commitment to and the ongoing stability of her relationship with Mr D. I have considered her opinion that a delay of perhaps a few years might enable the children to express their views in a more mature way. I am satisfied that the mother is in a stable long term relationship to which both she and Mr D are committed for the future. I am satisfied that it is in the best interests of the children that I make the orders that I do now, rather than to permit a situation of uncertainty to continue over a number of years.
[42] Clement & Clement [2014] FCCA 1664; Godfrey & Saunders (2008) FLR 287.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 7 March 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Injunction
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Consent
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Procedural Fairness
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