Radcliffe and Sayer and Anor
[2013] FCCA 1875
•15 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RADCLIFFE & SAYER & ANOR | [2013] FCCA 1875 |
| Catchwords: FAMILY LAW – Parenting orders – relocation – two children with different fathers – both fathers living in Darwin – mother proposes relocation to (omitted) in Queensland – mother relocates contrary to orders of Court twice during the course of proceedings – power of Court to order a parent to live in a particular locality – legislative pathway. |
| Legislation: Family Law Act 1975 ss.60, 61, 64, 65, 66, 68, 69, 114 |
| Radcliffe v Sayer & Anor [2012] FMCAfam 342 Sayer & Radcliffe & Anor [2012] FamCAFC 209 AMS v AIF; AIF v AMS (1999) FLC 92-852 Starr v Duggan [2009] FamCAFC 115 Heaton v Heaton [2012] FamCAFC 139 Rice v Asplund (1979) FLC 90-725 Hudson v Hudson [2009] FMCAfam 792 Mills v Watson [2008] FMCAfam 2 Sampson v Hartnett (No.10) [2007] FLC 93-350 |
| Applicant: | MR RADCLIFFE |
| First Respondent: | MS SAYER |
| Second Respondent: | MR BANDEN |
| File Number: | DNC 280 of 2011 |
| Judgment of: | Judge Lindsay |
| Hearing dates: | 3, 4 and 5 June 2013 |
| Date of Last Submission: | 2 July 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 15 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farmer |
| Solicitors for the Applicant: | Withnall Lawyers |
| Counsel for the First Respondent: | Mr Glenday of Counsel |
| Solicitors for the First Respondent: | Csg Law And Story & Associates |
| Counsel for the Second Respondent: | Mr Story |
| Solicitors for the Second Respondent: | Story and Associates |
ORDERS
I adjourn the pronouncement of orders in accordance with these reasons to Monday 25 November 2013 at 3.30pm.
During the adjournment the children X born on (omitted) 2007 and Y born on 20 September 2010 live with the applicant Mr Radcliffe.
IT IS NOTED that publication of this judgment under the pseudonym Radcliffe & Sayer & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
DNC 280 of 2011
| MR RADCLIFFE |
Applicant
And
| MS SAYER |
First Respondent
And
| MR BANDEN |
Second Respondent
REASONS FOR JUDGMENT
This case involves competing applications for parenting orders in relation to 2 children. The eldest, X was born on (omitted) 2007. She is a child of the first respondent and second respondent. The other child is Y born (omitted) 2010. She is a child of the applicant and the first respondent.
I will refer to the first respondent throughout these reasons as the mother, to the applicant as Mr Radcliffe and to the second respondent as Mr Banden.
Mr Radcliffe seeks orders that will facilitate time-spent between him and both children. The mother opposes him having time-spent with X. The mother and Mr Banden are in broad agreement as to the terms of the exercise of time-spent by him with X.
The case, and the applications of the parties, are complicated by the relocation aspect. Both fathers live in Darwin. The mother wishes to live in (omitted), Queensland. If I order that the children or either of them are to live in Darwin, the mother has made it clear to the Court that she will remain in (omitted). It would then become a question as to the terms of her time-spent with the children and the position of the parties in that event is naturally more complicated.
I will need to consider whether I have the power to order the mother to return to live in Darwin with the children and if I do have such power whether it should be exercised in this case.
Federal Magistrate Turner (as she then was, and whom I will hereinafter refer to as Judge Turner) delivered a judgment in relation to the parenting dispute between Mr Radcliffe and the mother on 17 April 2012. That followed a trial in which the second respondent did not participate. Her Honour made a series of parenting orders that were founded on the mother being required to live with the children in Darwin. In other words her application, bound up as it was with her relocation to (omitted), was refused.
The Full Court of the Family Court allowed an appeal from Her Honour’s judgment and remitted the matter for re-trial.
Despite its relocation aspect, the case remains a parenting case. It is not a relocation case per se. The relocation aspect of the matter is a very significant aspect of the case but the general law to be applied remains the same law that would be applied if the case had no relocation aspect. It is a parenting dispute and hence governed by Part VII of the Family Law Act1975.
It is a dispute that will be determined in the light of the Objects and Principles underlying those Objects described by s.60B of the Act. The parenting orders I make will be made upon the basis of my regarding the welfare of the two children as my paramount consideration. I will have regard to all of the matters set out in s.60CC of the Act and in particular the two primary considerations set forth in s.60CC(2) though I will give greater weight to the primary consideration set forth in s.60CC(2)(b). If I make an order for equal shared parental responsibility in relation to either child I will apply a presumption that it is in the best interest of the child for her parents to have equal shared parental responsibility but I will not apply the presumption if there are reasonable grounds to believe that a parent has engaged in one of the matters described in s.61DA(2) of the Act or if I do not consider that it is in the best interests of the child to do so.
If I make an order for equal shared parental responsibility I will consider whether the child spending equal time with the parents is in her best interests and whether equal time is reasonably practicable. If I do not propose to make an order for equal time I will consider whether the child spending substantial and significant time-spent with each of the parents would be in the best interest of the child and whether it is reasonably practicable.
The relocation aspect of the facts of the matter will mean that some aspects of the application of Part VII to the facts of the case will be more apposite than others. The relocation aspect will colour my application of the legislative requirements to my decision making but it will not have any impact on the content of those legislative requirements.
In applying the Part VII criteria, I will bear in mind the following observations of Kirby J in AMS v AIF;AIF v AMS (1999) FLC 92-852 at [142]-[143]. That appeal from a decision of the Supreme Court of Western Australia (which was then the relevant “Full Court”) allowing an appeal from the Family Court of Western Australia, involved both constitutional issues and issues relating to the conduct of relocation cases generally (the mother lived in Darwin and the father lived in Perth). His Honour was a member of the majority which upheld the appeal. On the relocation aspects he said this:
[142] First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be reserved in applying propositions advanced in particular jurisdiction where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a “careful and delicate analysis”, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
[143] Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the “welfare” (or “best interest”) of the child should be the paramount consideration. It may provide a list of considerations or “principles” to be applied in the exercise of the court’s powers. However, the “paramount” consideration is not the same as the “sole” or “only” consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
These are important matters to bear in mind whilst still acknowledging the need to follow the so called legislative pathway set out in Part VII.
Judge Turner’s decision in this matter was overturned on appeal by the Full Court because it came to the conclusion it expressed at [101] of the appeal judgment:
Appealable error has been established in relation to the Federal Magistrate’s failure to apply and follow the relevant legislative pathway for parenting cases where relocation is one of the issues. The appeal must be allowed.
It is important, then, for me to have regard to the explication given by the Full Court as to what the legislative pathway is. It is to be found at [53] and [54] of the judgment, such paragraphs including extensive references to the earlier Full Court decisions of Starr v Duggan [2009] FamCAFC 115 and Heaton v Heaton [2012] FamCAFC 139.
[53] There can be no doubt that the decision the Federal Magistrate was required to make was very difficult. All relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children. Clarification and guidance has been provided by decisions of this Court. We refer to the approach outlined in Starr & Duggan … where their Honours said:
APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD
33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
34.The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-283.
35.In McCall & Clark the Full Court referred (at paragraphs 58 and 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36.The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
· first make findings concerning the relevant s 60CC factors;
· then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
[54] The requirement to clearly rather than inferentially follow the legislative pathway in relocation cases was confirmed recently be this Court in Heaton & Heaton … Their Honours said:
32.His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to (omitted). Although the mother’s “fall back position” of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.
33.It is only in this way that his Honour could have properly considered all of the relevant factors to come to a determination of the children’s best interests.
34.His Honour was then obliged to consider the provisions of s 65DAA(1).
35.As the plurality of the High Court said in MRR v GR (2010) 240 CLR 461 at page 466:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para(a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to making of the order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist…
36. Their Honours continued:
His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances…
37.We regretfully conclude that his Honour erred in his determination of the issue of equal shared time. By conflating the disparate issues of “best interests” and “reasonable practicability” the Federal Magistrate’s reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway. As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue. His Honour was required to first consider whether equal time was in the children’s best interests pursuant to s 60CC. If he concluded that it was, it was then necessary to consider the parties’ competing proposals and determine whether equal time was reasonably practicable. He did not do this.
38.These errors are such that the appeal must succeed. As the High Court said in MRR v GTR (supra), the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers. It is not sufficient to argue that although His Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.
39. It is unnecessary for us to consider whether, generally,
a “slavish” pursuit of the “legislative pathway” is not essential.
Before taking the discussion of the legal principles any further I should give a brief summary of the factual history and set out in some detail the competing applications of the parties. A fuller discussion of particular factual matters will arise as I give consideration to each of the s.60CC factors.
Mr Radcliffe is aged 35 years; Mr Banden is 32 years and the mother is 31 years of age.
Mr Radcliffe and the mother began to cohabit in 2008. They separated finally in March 2011. The mother had already separated, obviously enough, from Mr Banden when she met Mr Radcliffe. I will provide details in relation to the circumstances of their relationship and conduct post separation towards each other and the children in the context of a consideration of the proposal of the parties hereunder. My summary of factual matters presently is focussed upon the principal participants in this dispute, Mr Radcliffe and the mother.
In 2009 and 2010 the mother and the children lived with Mr Radcliffe at his mother’s home. The mother and the father’s mother had a very poor relationship. The mother attributes the demise of her relationship with Mr Radcliffe, to a significant extent, to his mother. The father’s mother is now deceased.
The parties were unable to agree on the terms and conditions upon which the father would exercise time-spent and the father brought an application to the Court in August 2011. On 18 November 2011 Federal Magistrate Turner ordered that he have supervised time with both children at a Contact Centre and ordered a Family Report and adjourned the proceedings to 17 April 2012.
In October 2011 the maternal grandmother relocated from Darwin to (omitted).
By the time of the order for supervised contact in November 2011 the father had not seen either child since the separation eight months prior.
Y was presented by the mother for time-spent at the contact centre but in mid-January 2012 she relocated with both children to (omitted) to live with her mother. Having done that without the authority of the Court she then filed an Application-in-a-Case on 24 January 2012 seeking an order that she be “at liberty to relocate to (omitted)”.
On 1 February 2012 Her Honour ordered that the trial of the matter be scheduled for 15 and 16 March 2012, made orders which had the effect of expediting the preparation of the Family Report and directed the mother to return to Darwin with the children “for the purposes of the Family Report”.
The first Family Report of Mr V was released on 9 March 2012.
The trial took place on 15 and 16 March and Her Honour delivered her judgment on 17 April 2012.
In summary Her Honour’s orders provided that the children live with the mother in the Darwin area and restrained her (in a practical sense) from removing the children from the Darwin area and provided for the father to exercise time-spent with them on a graduating daily basis. There were a number of other orders detailing the time-spent. The suite of orders Her Honour made also included this order at [10]:
That the mother is permitted to suspend the father’s time with the children for up to four (4) weeks a year provided that the mother gives fourteen (14) days written notice of when time will be suspended together with details of the make-up time with the father.
That order played an important part in events later in the year and remained extant after the Full Court appeal and remittal and after my reservation and judgment on 2 July 2013.
Her Honour’s orders relating to the father’s time with X was subject to Order 8 which provided:
That the father’s time with X on a Saturday is to be suspended upon receipt of written details from Mr Banden fourteen (14) days prior to the scheduled spend time with period of his intention to spend time with X.
This order was utilised by the mother and Mr Banden in the period leading up to the trial before me and is, again, an order which remained extant after the Full Court decision and after my reservation of judgment.
The father saw Y at the interview with Mr V on 21 February 2012. The mother did not present X to Mr V as required by Her Honour’s orders of 1 February 2012.
The mother returned to Darwin in accordance with the March orders of Her Honour on 3 May 2012 and complied with the time-spent orders until August of 2012. On 1 August 2012 the mother’s then solicitor, Mr B, wrote to the father’s solicitors seeking that the mother be entitled to enjoy the benefit of Order 10 as set out at (see [25]) and thus the suspension of the father’s time for the period of four weeks.
The mother then travelled to (omitted) with the children and remained there until ordered to return by me following the Full Court judgment and the matter entering my docket. I made the order requiring her to return on 4 February 2013. She returned within the fourteen days provided in that Order.
The father did respond to her decision to remain in (omitted) contrary to Her Honour’s orders. He brought an Application-in-a-Case on 13 September 2012 seeking orders for her return. The application was brought the day after the mother wrote to the father informing him that she would not be returning. This is the text of the first four paragraphs of her letter:
Given the circumstances the children and I were living in in Darwin from (omitted)/05/2012 to (omitted)/8/2012 they were far from acceptable.
I have made the decision to not return to Darwin on the (omitted) August 2012.
This is not in defiance to you or the Court.
It is a matter of a better quality of living for the children. There are greater opportunities for education, social, travel and other family.
I simply note at this point her decision to remain in (omitted), contrary to what is said in the third of those paragraphs, was a flagrant defiance of Her Honour’s orders of 17 April 2012.
His application to have the mother return with the children came before Judge Turner on 14 September 2012 and was adjourned to 21 September 2012. On that day Her Honour ordered a one day hearing on 2 October 2012 to deal with any aspects of the mother’s application and to deal with the mother’s application to relocate to (omitted) (the application she made in September 2012 after already relocating) and especially any aspects of that application which might be liable to be summarily determined in the light of the rule arising in Rice v Asplund (1979) FLC 90-725. The mother was ordered to return to Darwin with both children for the duration of the hearing and it was noted that cross‑examination would be permitted on the Rice v Asplund aspects. Other matters were noted in that Order including the expectation of the Court that the mother would facilitate time-spent by the father with the children on the day before the hearing and the day after the hearing and that the mother would attend at the ex‑tempore judgment that the Judge noted she would deliver at the conclusion of the hearing on 21 September 2012.
It will be borne in mind that the argument in relation to the mother’s appeal had already transpired before the Full Court on 4 September 2012 and the Full Court had reserved its judgment.
On 24 September 2012 Her Honour ordered that a further 11F conference also transpire on 2 October 2012.
However, on 26 September 2012 Her Honour made the following orders:
1. That the hearing date on 2 October 2012 at 10.30am of all outstanding applications is hereby vacated.
2. That all outstanding applications will be listed on a date and time to be advised to the parties following delivery of the Full Court of the Family Court of Australia’s decision in respect to the Appeal filed by the mother on 16 May 2012.
3. That the order made on 24 September 2012 for the parties to attend reportable family dispute resolution conference with a family consultant on 2 October 2012 at 9.00am is hereby vacated.
I first conducted a hearing in this matter on 14 January 2013. At that time the mother was still living in (omitted). The Full Court judgment had been delivered on 14 December 2012. The Full Court left Judge Turner’s orders of 17 April 2012 in force despite allowing the appeal and remitting the matter for re-hearing. I listed the competing interlocutory applications of the parties (which essentially dealt with whether the mother would return to Darwin in accordance with the orders of 17 April 2012) for hearing on 30 January 2012 though I did not deliver my decision until 4 February 2013.
It was at the hearing on 14 January 2013 that I was able to ascertain why Her Honour made the orders she did on 26 September 2012. On their face they were a very curious set of orders. The mother had prima facie flouted the orders of 17 April 2012; the parties had brought urgent applications following that; the matter had been listed for urgent hearing; time-spent was not taking place. All of these matters pertained and yet Her Honour simply adjourned the matter to a date following the Full Court decision being delivered and left the state of affairs the mother had created unaddressed.
The explanation is to be found in the contents of an email the mother wrote to her solicitor Mr Black on 24 September 2012. The contents of that email were conveyed to Her Honour before she made her orders of 26 September 2012. A copy of the mother’s email is to be found as annexure NI-2 to the mother’s affidavit of 22 January 2013. Mr Black had by this time alerted the mother to the orders Her Honour made on 21 and 24 September 2012. This is what the mother said in the email:
I have just spoken to mum. I will be flying up with the children.
I have NO. Repeat NO INTENTION of staying any longer than I have to.
I give you written confirmation now that in the event that Turner orders the children to live with Mr Radcliffe;
I WILL KILL THEM ALL
I am NOT playing (omitted)
This is just out of hand and I intend to take matters into my own hands again.
It is that no one is listening to what we have to say and all that is happening is great trauma on all levels for the children, my mother and me.
I WILL NOT LET THIS HAPPEN ANYMORE
SOMEONE WILL PAY WITH THEIR LIFE THIS TIME ROUND AND IT WILL NOT BE ME.
Signed one very pissed off angry mother
Ms Sayer
The mother returned to Darwin with both children pursuant to the orders I made on 4 February 2013 on 17 February 2013.
Mr V released his second report on 22 April 2013.
The trial transpired before me in Darwin on 3, 4 and 5 June 2013 and I then heard closing submissions from the parties on 2 July 2013 when I reserved my judgment.
I turn then to the final versions of the orders sought by the parties. The applications of all of them underwent some modification throughout the trial but all of them provided me with a highly specific set of orders sought at the time of closing submissions.
Mr Radcliffe put his proposal in alternative ways. At times, and even during the course of closing submissions, the proposals were pitched upon the basis that the first task of the Court was to determine whether or not the mother would be permitted to live in (omitted) with the children and that only when that issue was determined would the various proposals of the parties be adjudicated upon. Of course, the relocation aspect must be resolved but only in the context of a resolution of the entire parenting dispute and upon the application of the Part VII criteria. In a sense this mis-stating of the task of the Court in the final submissions was understandable and somewhat unavoidable given that the resolution of the factual issue as to where the children will live will have such a radical impact upon how those criteria are brought to bear.
Mr Radcliffe’s primary application was that Y live with him and X live with the mother but that he have regular opportunity to spend time with X. He did not seek an order that required the mother herself to live in Darwin or its environs (and when I hereinafter refer to the mother living in Darwin I am referring to Darwin and its environs). To some extent and especially in the period prior to when the mother was pressed whilst in the witness box and then pressed, through her counsel, when the trial reached submissions, to be unambiguous about her intentions in the event that the Court made orders which were based upon an expectation of her living in Darwin, and she unambiguously asserted and submitted that under no circumstances would she live other than in (omitted), he simply assumed that the mother would live in Darwin if the orders the Court made were predicated on the children living in Darwin.
We know conclusively – because she has told us unambiguously after having much time to think about it – that the mother will only live in Darwin if I order her to live in Darwin. She will not live in Darwin voluntarily even if my orders provide for the children to live in Darwin. That was something that the other parties and the Court were only clearly aware of towards the end of the trial. When I first raised with the mother during her evidence what she would do in the event that I made orders the practical effect of which was to require the children to live in Darwin, she sought an opportunity to reflect upon the matter and to obtain advice in relation to it. Her counsel was explicit in his closing submissions on her behalf that in such an event she would choose to live in (omitted)
This circumstance requires me to give specific consideration to the Court’s power to make an order directed specifically to a parent requiring that parent to live in a particular locality. I will discuss that specifically hereunder. The conclusion I come to is that the power is to be found in either s.68B(2) or s.114(3) of the Family LawAct. There is Full Court authority (discussed hereafter) which suggests the latter is the only source of power. The question as to whether such a power ought to be exercised in this particular case will also be considered.
In the event that Y was ordered to live with Mr Radcliffe and the mother did not live in Darwin or was not ordered to live in Darwin, Mr Radcliffe sought an order that X live with Mr Banden in Darwin. These orders presupposed that Mr Banden sought or was prepared to accept an order that X live with him. In that event, he sought orders that would provide the mother with one half of mid-year school holidays with Y in 2013 and 2014 and two weeks in Christmas school holidays with Y with her having all of the mid‑year holidays from 2015 onwards. That time-spent with the mother he submitted should be ordered to occur in Darwin because of the history of her unilateral decisions not to comply with orders of the Court including orders which related to where the children lived. From 2015 onwards he was prepared for the Court to order that the time‑spent could occur wherever the mother lived.
As noted above, in the event that the mother did not live in Darwin or was not ordered by the Court to live in Darwin, he sought an order that X live with Mr Banden and went on to seek orders that he spend time with X in that event overnight on a Wednesday each week, on alternate weekends from school Friday from commencement to school the following Monday and for significant periods of the school holidays and a series of highly specific orders in relation to special occasions such as the children’s birthdays, his birthday and Mr Banden’s birthday.
Finally in that event he sought orders regulating the exchange of information about the children relating to medical issues and schooling and injunctions restraining the mother and Mr Banden from speaking negatively about Mr Radcliffe and his family in the presence of the children. He sought an order that all parties attend and complete a Parenting Orders Program.
His next alternative set of orders contemplated the mother living in Darwin. In that event he sought orders that Y live with him and X live with Mr Banden. Obviously the nature of the time-spent regime reflected his close proximity to the children. I will only return to a discussion of those specific proposals in the event that I ordered both that the children live with their respective fathers and that I made an order that the mother live in Darwin. For reasons I will provide hereunder I do not propose to make an order requiring the mother to live in Darwin.
The next alternative set of orders sought by Mr Radcliffe were those which pertained to a situation where I made an order that Y live with him and Mr Banden was not prepared to seek or accept an order that X live with him. However, Mr Banden is seeking such an order.
It should be noted that Mr Radcliffe also, as might be expected, sought orders providing for him to exercise time-spent with Y in the event that the orders I made contemplated the mother living with the children in (omitted).
Mr Radcliffe, as I understood his final position, and in the event that Y lived with him, was prepared for there to be an order for equal shared parental responsibility.
Mr Banden’s principal position was to support the mother in her application that I made orders that facilitated the children living with her in (omitted). He sought an order for equal shared parental responsibility of X. If I made orders that contemplated X living with the mother in (omitted) he sought time-spent with X for two weeks in the mid-year school holidays and two weeks in the Christmas school holidays and other orders facilitating Skype and telephonic communication.
If I were not prepared to make the orders the mother sought then Mr Banden sought an order that X live with him in Darwin and proposed that the mother exercise time-spent with X for the whole of the mid-year school holidays and three weeks of the Christmas school holidays. He sought an order in that event the practical effect of which was that X spend time with Y each Saturday from 9am to 5pm alternating between his home and Mr Radcliffe’s home. He sought an order that X and Y attend the same school in Darwin and facilitating their attendance at the same vacation care programs.
The mother sought orders that the children live with her in (omitted). She was prepared to consent to an order that the fathers of the respective children have equal shared parental responsibility with her for their child.
She proposed that both fathers have extensive Skype and telephonic communication and that they see the children at Christmas and Easter each year alternating between (omitted) and Darwin.
She asked the Court not to make an order that Mr Radcliffe spend time with X unless it was with her (that is, with X’s) consent.
She did not propose that Y spend any time with Mr Radcliffe but sought an order that when Y was four years of age she and Mr Radcliffe be ordered to participate in family dispute resolution. She proposed a suite of orders regulating the provision of medical information and access to information from the schools the children attended and miscellaneous conjunctive orders.
If I made orders that contemplated the children living in Darwin, that is to say if the orders were predicated upon them living in Darwin either because of the regularity of the childrens’ contact with their fathers or otherwise, she indicated she would not live in Darwin and therefore proposed that in such event I make an order that the children live with their respective fathers in Darwin. She positively promoted that order, it should be noted. In that event she sought orders for Skype contact on a daily basis and time-spent with the children at Christmas of each year alternating between (omitted) and Darwin.
In closing submissions, the mother promoted, somewhat faintly, an application that, in the event I made an order that the children live with their respective fathers in Darwin, that I order that they live with her when and if she can “afford to live in Darwin”. It was not pitched with any more precision than that. As is manifest, I think, the Court cannot make such an order. It is not possible to frame an order that rests upon the mother’s subjective assessment as to whether and when she can “afford” to live in a locality. That is quite apart from the uncertainty and potentially very serious instability it would introduce to the life of the children if I were to make such an order. If I determined that the best interests of the children required them to live with their respective fathers in Darwin, I would not then make an order that facilitated a further change to their lives with respect to so fundamental a matter as the parent with whom they live when and if the mother came to a decision that she could “afford” to live in Darwin. In any event, I have concluded, for reasons I will expand on hereinafter, that there has been a persistently opportunistic element to the mother’s assessment of the viability of her living in Darwin since these proceedings first came before the Court.
I turn now to the question of my power to order the mother to live in a locality that she would not, but for my order, choose to live in.
I dealt with this issue in a decision of Hoare v Hoare [2009] FMCAfam 792. That was a case where the parties had agreed that the children would live with the father and asked me to make an order to that effect but where the mother then wanted me to make an order that the children (and therefore, necessarily, the father) live in a particular locality in the Sydney metropolitan area. I had to determine whether I had the power to make such an order and, if I did, whether it was a parenting order under Part VII of the Act and therefore one in which my consideration of the best interests of the children was paramount.
Relying heavily upon the discussion of such issues by Walters FM (as he then was but whom I will hereinafter refer to as Judge Walters) in Mead v Ward [2008] FMCAfam 2 and in turn on his discussion within that judgment of the decision of the Full Court of the Family Court in Sampson v Hartnett (No.10) [2007] FLC 93-350, I came to the conclusion that I did have such power.
Judge Walters did not grant the injunction sought in his decision and ultimately did not consider it necessary to come to a concluded view as to the source of the power. It was clear that His Honour thought that the power to do so, if he had been so minded, probably reposed in s.68B(2) of the Act and not s.114(3) of the Act as the Full Court seemed to indicate was their view.
I did not grant the injunction sought by the mother in my decision either and did not conclusively determine the source of power.
Because the Full Court in Sampson v Hartnett had expressed the view that an injunction requiring a parent to live in a particular place was not a parenting order as defined in s.64B of the Act (see [35] thereof), whether I exercised the power pursuant to s.68B or s.114(3), I was not obliged to consider the best interests of the children as my paramount consideration (see s.60CA).
Section 68B(2) of the Act provides:
Injunctions
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or ` remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
The Full Court said in Sampson v Hartnett at [38]:
We agree that section 68B is unlikely to be a source of power to directly restrain the freedom of movement of a parent.
But as Judge Walters said in Mead v Ward at [169]:
Clearly, s.68B(2) is not limited – in its terms, at least – to proceedings under Part VII. Although the Full Court in Sampson & Hartnett (No 10) concluded that "s.68B is unlikely to be a source of power to directly restrain the freedom of movement of a parent"[1] (and then went on to consider s.114(3)), it does not appear that their Honours turned their focus to s.68B(2) specifically. I note, as well, that the Full Court did not explain why s.68B is unlikely to be such a source of power.
[1] See paragraph 38
Section 114(3) provides:
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate
The Full Court said in Sampson v Hartnett at [40]
Perhaps obviously, in a parenting issues case, the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders. As we will later discuss, even before the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the 2006 Act”), a court in a parenting case was not confined in respect of orders, to the proposals of the parties. The 2006 Act enshrines that proposition, by obliging the court to consider certain arrangements for a child.
I proceed on the basis that I have the power to order the mother to live in Darwin pursuant to one or other of those sections.
A significant aspect of any decision to utilise the power will always be the matter to which Kirby J referred in AMS v AIF [145] when discussing the general propositions from the authorities relating to relocation cases:
Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live.
Another highly significant factor is that I would be ordering a parent to live in a locality in which they did not want to live and that would, depending upon how much time the children lived with or spent with that parent, have a very serious impact on the children and that such an arrangement is likely to mean that the parent would herself be resentful or angry.
As I said in Hoare v Hoare at [79]:
It is a not insignificant matter to oblige a responsible adult person to live in a metropolitan area of a capital city where he or she does not want to reside. It is a substantial interference with the liberty of an individual and I would only take that step if I thought there were compelling circumstances relating to the welfare of the children that required that substantial interference with the father’s rights to be ordered. I am not so satisfied.
The issue of the exercise of the power will only arise for determination if:
a)I rejected the mother’s principal application for the children to live with her in (omitted); and
b)I rejected the applications of both fathers of the children for the children to live with them in Darwin (which is Mr Radcliffe’s principal application and Mr Banden’s secondary application after his support for the mother’s principal position).
If I preferred either of those outcomes to an outcome which saw the children live with their mother in Darwin (either preponderantly or as part of an equal time arrangement) – with such order being made over the opposition of the mother, then (subject to [83] hereunder) I do not need to consider the exercise of the power at all. So I will postpone it until I have evaluated each of the parties’ proposals in accordance with the legislative pathway.
I should note that another possible circumstance giving rise to the exercise of the power would be if I accepted Mr Radcliffe’s application (which is also Mr Banden’s secondary proposal) but thought that the mother should live in Darwin to facilitate her spending time with the children.
Section 65C provides:
Who may apply for a parenting order
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
No party submitted that Mr Radcliffe was a person who was not eligible to apply for a parenting order. On the account of both the mother and Mr Radcliffe he is someone who comes within the category of person described in s.65C(c).
It makes sense, in my view, to begin my consideration with Y. Mr Banden supports the mother’s position. I will therefore deal with the competing applications for parenting orders for Y by the mother and Mr Radcliffe, first. Much of what I here discuss is directly relevant to the applications relating to X. I have already described what those applications are. I will then also deal with Mr Radcliffe’s application relating to X. Again, Mr Banden’s principal position is to support the mother’s position with respect to her. If I do not make an order in terms of the mother’s application or if I propose to make an order for the mother’s return to Darwin over her opposition, then Mr Banden’s secondary position relating to both girls becomes relevant. There will, of course, be some overlap in my consideration of all of these applications.
I turn to the s.60CC considerations and to the primary considerations firstly.
I am satisfied that Mr Radcliffe can have a meaningful relationship with Y. I am satisfied that the mother is determined to do all that she can do to deny the father and Y that opportunity and that such determination has informed and actuated her conduct throughout these proceedings and will continue to inform and actuate her conduct in the future. I am satisfied that, in so far as these matters are concerned, the mother is incorrigible. She has gained no insight into her conduct throughout these proceedings. Judge Turner’s findings have made no difference. Mr V’s expressions of opinion have made no difference. The very difficult experience that the girls have been subjected to since the proceedings were instituted have made no difference. She does not intend to permit Mr Radcliffe to have any relationship with Y in the future, let alone a meaningful one.
The evidence grounding such a conclusion on my part is manifold. I specifically refer to the following matters.
i)Her refusal to voluntarily provide time-spent with Y until ordered to do so by the Court;
ii)The unilateralism of her move to (omitted) in (omitted) of 2012 and again in (omitted) of 2012;
iii)Her unwarranted insistence on Y’s time with her father being supervised in circumstances where he had significant experience of caring for the child and assisting in the care of the child during his relationship with the mother, both before the first separation and during the period of attempted reconciliation;
iv)Her failure to provide any information to him which would have facilitated him being able to contact Y after she moved to (omitted) (whilst freely providing such information to Mr Banden for the purposes of his contacting X);
v)The brazen opportunism associated with her permitting Mr Banden to resume a relationship with X in August 2011, very shortly after the service of Mr Radcliffe’s application to this Court upon her in which he sought time‑spent with both children and, of course, doing this some three years after Mr Banden’s relationship with X had ceased. I concur with Mr V’s view (which he expressed more tentatively than I am now expressing at the conclusion of the evidence) that the reintroduction of Mr Banden by her to X’s life was calculated carefully to interfere with any opportunity for Mr Radcliffe to have such a relationship with X post separation; in turn this had the effect, which she deliberately sought, of complicating his exercise of time-spent with Y, especially if she lived in (omitted); there could be no synchronising of the respective fathers’ exercise of time-spent with their daughters whilst she was in (omitted) and they were in Darwin, with her preferencing of Mr Banden and her cooperating with giving him extended time with X contrasting with the uncooperative and hostile attitude to the facilitation of Mr Radcliffe’s time with Y; these arrangements then being made more difficult to coordinate especially if the Court wished to maximise the time the girls spent together.
Mr Banden departed for Western Australia shortly after he and the mother separated in 2008 and he remained there for two years but I accept his evidence that he attempted to maintain contact with X and was continually refused it by the mother (or his requests ignored). Especially when he returned to Darwin in 2010, the mother was completely uncooperative in facilitating him spending time with X. She was unable to provide him (or the Court) with any adequate explanation for her attitude. I do not accept that Mr Radcliffe played any part in her decision making. I regard as highly implausible the explanation promoted by Mr Banden and his companion (at some stages of the proceedings at least) Ms B (vide Mr V’s second family report of 24 April 2013 at [67]) that Ms Sayer’s attitude had something to do with Ms Sayer forming a relationship at some point with someone with whom Ms B had been in a relationship and that leading – somehow – to Ms Sayer concluding that Mr Banden had been unfaithful to her during the relationship. Mr V observes the curiosity of this only having been cleared up a few months ago. More significantly, it provides no proper explanation for why she would prevent a relationship between Mr Banden and X. I will say more about Mr Banden’s appeasement and role as an apologist for Ms Sayer hereafter.
As capriciously as she denied Mr Banden contact with X, so she suddenly permitted it after the service of Mr Radcliffe’s application upon her. No part of these decisions was related to her ever considering X’s interest in having a relationship with him. Rather, it was based upon the use of the child to further her manipulative strategies with both fathers, but especially with Mr Radcliffe.
This may sound a harsh or even striking judgment. But I had the opportunity of observing Ms Sayer in the witness box; I had the benefit of Mr V’s assessment of her after his interactions with her during the preparation of his three reports (I am including his initial Advice to Court in that number); I have Mr Radcliffe’s account of his experience with her in affidavit form, to Mr V and in the witness box (I also had Mr Banden’s evidence but it was less reliable on this and other topics relating to Ms Sayer for reasons I will explicate hereafter). Judge Turner had this to say about the mother in her judgment (Radcliffe v Sayer & Anor [2012] FMCAfam 342) at p.7
The mother in her evidence presented as a cocky conceited selfish self-centred person who puts her needs first before anyone else including the needs of the children. The mother summed it up best in her own words of “Happy mum happy bub”.
That, too, may seem an unusually harsh judgment to appear in a judicial determination but it is one with which I concur. I would add that the mother impressed as highly manipulative and incapable of undertaking anything resembling honest self-scrutiny of her behaviour.
Of course, a person with such qualities may yet possess adequate or even laudable parenting capacities and qualities – I must bear that in mind. This category of case is not to be determined by the Court making competing character evaluations of the parties. I am at this point indicating what my findings are as to whether the mother will facilitate a meaningful relationship between Mr Radcliffe and Y. The characteristics that emerged during the course of the proceedings have manifested themselves in her conduct and are highly relevant to that evaluation.
Her attitude to Mr Radcliffe having a relationship with X is revelatory of her attitude to him having a relationship with Y.
vi)The likelihood of Mr Radcliffe’s relationship with Y being meaningful is increased by the extent to which he has persevered in pursuing it, in the face of the mother’s invective against him throughout the proceedings and her contumacious behaviour towards him and to the Court. He impressed me, as he had Mr V, as being a somewhat passive and gentle person and one who was not easily provoked. He has persevered, too, despite the loss of his own mother, with whom he lived, during the course of the proceedings (in February 2013). She died of the cervical cancer, the existence and extent of which the mother had expressed considerable scepticism about to Mr V in his first report, describing Ms H’s claims about her cancer and the extent of it to him as “grand delusions”. The mother’s antipathy to Ms H at the first trial was focussed upon what she alleged had been Ms H’s treatment of her whilst the parties were living at her home, also holding her to be directly responsible for the failure of her relationship with Mr Radcliffe.
vii)The evidence of the mother and of her mother indicated a strong belief on the part of both of them that Mr Radcliffe had little, if anything, to offer Y (let alone X); the mother could not concede or conceive that he had any good qualities as a father.
viii)Having travelled to (omitted) and breached Judge Turner’s orders as to the provision of time in January 2012, and then having been ordered to present X with Y for the purposes of the family report required for the trial which Her Honour was required to list in March as a matter of urgency because of the mother’s conduct, the mother deliberately flouted the order and left X in (omitted) thereby depriving Judge Turner of the opportunity of having Mr V’s evaluation of X’s views and of her interaction with the father. This evidence is further confirmation of the strength of the mother’s resolve not to facilitate or permit the father having a relationship with X and, inferentially, with Y. I say “inferentially” because I consider that the attitude which accounts for this conduct in thwarting the relationship between the father and X (for no valid reason, on the evidence before me) will result in her not hesitating to bring that same attitude to her dealings with the father’s relationship with Y (X was not brought to the s.11F conference in November 2011 either but the order which directed the conference occur did not specifically stipulate that the mother was required to bring both children to it);
ix)The mother failed to comply with Judge Turner’s orders which required her to bring X to the time-spent with Y that she ordered the mother to provide to the father in the orders of 21 November 2011. I draw from this conduct the same inferences described in (viii) above.
x)Significantly, I regard the decision of the mother to relocate to (omitted) as a function of her determination to prevent a relationship between Y and the father, though it was informed at the outset, too, by her extreme antipathy towards Ms H. At the time the relocation was first formulated (in the wake of Mr Radcliffe’s first application to the Court), Ms H was still a significant player in the matter. A very big part of the mother’s animosity towards Mr Radcliffe is related to her antipathy to his mother. Her insistence on supervision of his time was, in large part, to prevent the father being able to “pass her (i.e. Y) around” to his extended family (see page 2 of Mr V’s 11F report of 14 November 2011). Mr V said this at [54] of his first report in relation to the mother:
Much of her interview rhetoric was a carefully constructed and considered tirade against Ms H, whom she portrayed as so dominating of the family, including X and Y, that it was absolutely necessary to leave Darwin in January 2012. What changed in her views from the October conference time when she envisaged remaining in Darwin to possibly the end of 2012 and her January decision remains unclear. She did not give any clues to it during the interview, with the only new material being her invective against Ms H. It did not appear that she and Ms H had interacted at all in the period from mid-March separation to January’s departure for (omitted).
That excerpt from Mr V’s report, incidentally, is a good example of the acuity of insight and careful consideration he brought to the preparation of all of his reports and his oral evidence. He was of considerable assistance to me in grappling with the difficulties of this matter.
Having cut her ties to Darwin, including having made the critical decision to resign her public service employment, there was in a sense no turning back for the mother. Her decision had significant consequences for her and the children.
A central part of the mother’s case before me, as it was before Judge Turner, was the contrast she drew between the living conditions for her and the children in Darwin and the conditions in (omitted). When she was required to return to Darwin in the wake of Judge Turner’s judgment following the trial she was obliged, she said, to live in inadequate share accommodation found for her by the YWCA. Similarly when she returned to Darwin in February of this year after I ordered her to do so she and the children were obliged, she said, to occupy a caravan stationed at the home of people known to her and once again she complained about the inadequacy of these arrangements. On both occasions these conditions contrasted, she said, with the comfort and order at the home of her mother in (omitted). Even allowing for some exaggeration in her claims I accept the reality of the generally uncomfortable conditions in Darwin in both periods for her and the children (she was able to find satisfactory rental accommodation in Darwin when she separated from Mr Radcliffe though she received practical assistance from her mother shortly after she moved into that accommodation). The mother claimed her accommodation choices were a function of her financial circumstances in Darwin but I find they were a function of her deliberate choice.
I should note that both fathers pay and have paid appropriate child support throughout these proceedings. Both are in reasonably remunerative employment and both have a reliable history of payment.
The mother’s own mother has been very generous in her financial support of her daughter since the separation from Mr Radcliffe, but only selectively. She has paid for significant legal costs. She has travelled from (omitted) to support her daughter and granddaughters. She met the costs associated with the first trial and with the appeal, for example. But her evidence before me was that she was no longer in a position to financially assist her daughter generally or specifically in relation to enabling her to obtain proper rental accommodation. That was also her evidence to Judge Turner but she then found the ability to fund the appeal. She has during the two periods that her daughter has been obliged to return to Darwin been unable to assist her financially with respect to the specific issue of housing. There is no doubt her superannuation and other funds (especially the proceeds of sale of her Darwin home) have been significantly depleted, but it was unexplained at the end of the evidence why legal costs could be provided by her (and accepted by her daughter) but funds to ameliorate the desperate housing plights, as described by the mother, could not be found. It is not possible for me to express my reservations about this issue with any more precision. I am concerned that the mother has deliberately exacerbated the predicament of the girls in Darwin for tactical advantage.
The mother graduated from (omitted) University in (omitted) 2009 and started work with the Northern Territory Government in January of that year as a (occupation omitted). She described the job to Mr V as “the job of a lifetime”. She forfeited it peremptorily in January of 2012 when she decided to travel to (omitted) and flout the existing time-spent orders.
Her housing situation is a direct consequence of her decision making. That does not mean that the consequences for both girls can be overlooked, of course. But it is an index of the lengths the mother will go to in furtherance of her desire to disrupt the opportunity for the father to have a meaningful relationship with Y, or time-spent with X.
xi)Another factor persuading me that the mother will not provide Y with an opportunity for a meaningful relationship with her father is the evidence as to the extent to which she has been prepared to attempt to influence X’s perceptions of Mr Radcliffe. There are a number of examples of this provided by Mr V’s second family report and by Mr Radcliffe who reported X asking him during the time-spent that occurred prior to the preparation of the second report questions such as “what is Court?” and “when are you going to let us go back to (omitted)?” As Mr V noted at [28] of that report the mother and her mother and Mr Banden and Ms B all reported at different times that X either “disliked” or “hated” Mr Radcliffe. This was inconsonant with Mr V’s observations of X with Mr Radcliffe [35]. Mr V notes at the conclusion of that paragraph that:
Her version aligns much more closely with his than that of her mother’s and maternal grandmother’s.
When X then reports to Mr V that she “normally did not like him” he notes that her effect was not congruent with the emotion she was trying to convey. He goes on:
Rather, she seems puzzled about saying it. She did not use the term “hate”. When I explored this comment with her, she related it immediately to wanting a “perfect family” for her and Y, and how “Mr Radcliffe” (she did not use “Mr Radcliffe”) for this comment) was stopping it. Her mother appeared to be the source for that assessment of him.
He goes on at [75]-[77] to set forth other information from X which provides him with concern and leads to this conclusion:
X’s developmental security is considerably more complex. Despite her saying her mother “never” tells her anything about Mr Radcliffe (a point stressed by Ms Sayer about her daughter), it seemed clear she had been clearly exposed inappropriately to some very strongly held and negative adult views about him, leading her to express boldly strong assertions about his complete lack of effective contact with her over the years. Her developmental security (and possibly Y’s ([sic]) as well) also seemed to be under undue pressure when she passionately evoked wanting the “perfect family” with Y and her having “one dad” or the “same dad” (namely Mr Banden) – again rather adult usage. I note she interacted with Mr Radcliffe mostly comfortably, not displaying in her behaviour any “dislike” or “hatred” of him. However, over time, her emotions might grow to match the diction if the adults concerned persist in influencing her in that detrimental manner.
All of the evidence relating to the mother’s attitude towards Mr Radcliffe and her conduct, taken together with the material arising from Mr V’s report, indicates clearly to me that the mother has either deliberately or recklessly (and I consider the former more likely) made remarks to X or in her presence which have had the effect of or have been capable of having the effect of undermining the child’s affection for and positive perception of Mr Radcliffe and that she has permitted her mother so to do.
Such an attitude suggests little hope of the child having a meaningful relationship with her father if she continues to be in a position to influence the child. This observation logically is equally applicable to Y. Only the child’s age has quarantined her from that kind of influence from the mother.
My conclusion after having considered the first of the primary considerations prescribed by s.60CC(2) is that if Y remains preponderantly in the care of the mother she will not have a meaningful relationship with her father. In this context, whether she lived in (omitted) or in Darwin would be a subsidiary consideration. If the mother lived in (omitted) with the children it would amplify and accelerate the deterioration of the relationship between Y and Mr Radcliffe to a point of extinguishment, in my view, in the relatively near future.
If Y were to live preponderantly with her father there was nothing that arose in the evidence and in particular from the evidence of the father or his interactions with Mr V to suggest that he would not promote the child having a meaningful relationship with her mother if the physical proximity of the mother made that possible. Even absent physical proximity of the mother, I consider that Mr Radcliffe would do all that he could to make the relationship between the mother and child a meaningful one. This is surely what most parents would desire for their children, that is, that the child have a meaningful relationship with both of her parents. It is only when a parent’s attitude is distorted by matters unrelated to the child and personality factors that a parent would cease to provide a child with such opportunity. That is what has happened with the mother.
I turn to the second of the primary considerations. I need to consider the need to protect Y from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I am to give greater weight to this primary consideration than to the meaningful-relationship-with-parents consideration.
There was an alleged incident of physical abuse of the child by the mother shortly before the separation of the parties which was reported to the Northern Territory Child Welfare Authorities (hereinafter “DCF”). The paternal grandmother was behind that report which involved the smacking and dragging of the child X. The (omitted) found the allegation to be unsubstantiated. I cannot make any finding about it. An allegation against the father at or about this time was also found to be unsubstantiated; the mother made and withdrew a domestic violence restraining order application at or about this time, too. I am not satisfied that the children were at any physical risk during the episodes alleged. The mother’s conduct in March 2011 at final separation involving attempts to strike Mr Radcliffe and dropping a sheathed knife in his lap are more concerning but I am not satisfied that the children were placed at risk.
The mother delivered up the children into the care of the DCF on 8 January 2012 and they were placed in temporary foster placement until the arrival of the maternal grandmother in Darwin from (omitted) some three days later. She did this again on 25 October 2013. On the first occasion Mr Banden offered to care for X in the presence of the DCF officers but the mother then alleged to them that he used drugs and was unsuitable as a person to care for her. That was a false assertion. It had the result (intended by her) of X not going into his care but in to the care of strangers instead. Both children experienced, I am prepared to infer, some distress and considerable uncertainty about the stability of their living arrangements during this episode. I strongly suspect a significant element in this incident was the mother’s desire to draw attention to what she saw as her predicament in this period which was, of course, shortly prior to her departure from Darwin to (omitted) with the children. She left Darwin a week after this episode with DCF having by that time decided to resign her employment. The ostensible reason advanced by her (or at least the principal ostensible reason) was the departure from Darwin to (omitted) of her mother in late 2011 and the loss of support from her. I find, however, that the mother had intended to move to (omitted) for some time. The mother preferred to live with her mother in (omitted) and simply chose to act on that preference, despite orders of this Court that required time-spent with Y by Mr Radcliffe to be facilitated by her. Judge Turner did not make an order for the mother to give him time with X when she made interim orders on 14 November 2011 noting in her Reasons at [16]:
The mother acknowledges that in the future that Mr Radcliffe’s time with X should resume, but not yet, as Mr Radcliffe needs to concentrate on establishing a bond with Y.
The decision to move on 25 October 2013 back to (omitted) and to place the children with DCF was explained by the mother in an affidavit I ordered her to file on 1 November 2013. It emphasised her unsatisfactory living circumstances and general inability to cope with her situation. After representations to DCF by the father’s solicitors they were placed in his care (an order having been made pursuant to the Care and Protection of Children Act (NT) placing the children under a Temporary Protection Order). The father facilitated time-spent between X and Mr Banden by agreement and facilitated telephone communication with the mother. I ordered that the children continue to live with Mr Radcliffe for the few days constituting the period between the expiry of the Northern Territory Local Court order and the date I appointed for the delivery of these Reasons and I did that pursuant to s.69ZK(1)(a) of the Act on 7 November 2013.
The effect upon the children of being placed with strangers on this occasion was at least minimised by the arrangements for the delivery of them to the father. Once again, the mother was unable to prioritise their emotional welfare. She could offer no valid reason at the hearing convened on 7 November 2013 as to why the children could not have instead been placed with their respective fathers, assuming that in fact her decision to move to (omitted) was an act of desperation and not, again, a calculated act. She told me at that hearing that the reason she did not place the children with the fathers was because they were “not around at the time”. That is plainly untrue. Both men were available and both would have assumed responsibilities for their respective daughters if they had been asked.
The background to these events includes the mother giving notice to Mr Radcliffe on the second week of October 2013 of her intention to exercise her entitlement pursuant to paragraph 10 of the Orders of Judge Turner of 17 April 2012 to suspend the time-spent for four weeks. She intended to travel to (omitted) with the children for that period. This was the same entitlement exercised by her in August/September 2012 when she did not return from (omitted), resulting ultimately with the children remaining with her in (omitted) until I ordered her to return on 4 February 2013.
Principally, but not exclusively it was on account of my concern that she would repeat that behaviour that I suspended the operation of that notice provision on 25 October 2013 after an application was made by Mr Radcliffe.
It should be noted that when the mother attempted to utilise that notice provision, the judgment in respect of the trial at which I presided in June/July 2013 had been reserved for three months. The policy of this Court is to have judgments delivered by the expiry of that period and I expressed an intention to do so when I reserved the judgment. It is now being delivered in over four months from that reservation.
The mother has sought to explain her placement of the children on two occasions with strangers authorised by DCF by pointing to her exigent circumstances. I do not accept her circumstances in January 2012 were exigent. I accept she was under some stress (as all Family Law Act litigants are to some degree) but not to extent she claimed. She was living in adequate accommodation with the children, receiving child support from both fathers, had full time established and secure employment and was in good health. Placing the children with DCF was principally a tactical act by her and partly a deliberately emotive one. It had no regard to the welfare of the children. She was reckless about their emotional welfare.
The most recent placement of the children with DCF I accept occurred in circumstances where her accommodation was unsatisfactory, even allowing for her exaggeration of the conditions in the caravan. But her mother’s assistance would in all likelihood been provided to upgrade her accommodation if she had sought it, as I have already remarked. Moving to (omitted) suddenly may have improved her living conditions but she had no way of knowing whether and if so to what extent the living conditions of the children would be improved by her own departure. Certainly they would have been emotionally distressed to the same – perhaps very significant – degree. She left anyway.
This inability to prioritise the welfare of the children is a matter that concerns me when I contemplate the possibility of the children living in her preponderant care, wherever that is. It might express itself in a different set of stressful or challenging circumstances or where other personal imperatives and goals of the mother are perceived by her to be at stake.
It should be noted that since her return to Darwin in February this year, the mother has offered Mr Radcliffe overnight time with Y on alternate Fridays being time to which he was not entitled under the existing orders. The question is whether this was done by the mother after reflection on what was in fact best for Y, or whether it was done because she thought it would improve her prospects of relocation (I am here reflecting the same scepticism about the mother’s motives that Mr V expressed in his first family report about why the mother was expediting the time-spent with Y in late 2011). Mr Radcliffe, consistent with the conciliatory attitude that has been evident on a number of occasions throughout the proceedings, takes the view (as expressed to Mr V in his second family report) that the offer of overnight time was indicative of the mother’s cooperative spirit. I am not persuaded such is the case. The case against Mr Radcliffe exercising time-spent with Y and on requiring supervision of it and on it being limited to day time was never supported by evidence that was grounded upon a genuine assessment by her (or anyone else) of his parenting capacities, and so I find. The assertions the mother made in support of all of these positions have lacked detail or contextual embedment. The offer of overnight time at the end of a lengthy gap in Mr Radcliffe having any time-spent i.e. from September to February in these circumstances suggests that her concerns were never genuine.
The email sent to her previous solicitor Mr Black and ultimately brought to the attention of Judge Turner (see [42] hereof) is obviously concerning as it relates to the mother’s aggression, self-righteousness and either her manipulativeness or her lack of control of her emotions, depending on whether we take the view that the letter was the product of intense frustration and disappointment or was calculated to intimidate or to achieve an outcome. It may have been a combination of both of course.
It was an explicit (though indirect) threat to kill. It is not clear which of the dramatis personae at the trial is or were the object of the threat i.e. who it is who will, to use her words, “pay with their life”. It may be the Judge or Mr Radcliffe or some other person associated with the litigation. I think it is clear though that the email and the threats within it did not relate to the children themselves. After the email was brought to the attention of Judge Turner Her Honour made an order (in chambers) adjourning the hearing date she had fixed for all applications until the Full Court had delivered its decision on her appeal and vacating the hearing date of 2 October 2012 which was a hearing date “of all outstanding applications”. Given that the order made on 21 September 2012 for the mother to return to Darwin with the children included the words “for the duration of the hearing”, the very existence of an obligation on her part to return was rendered ambiguous though Her Honour did not specifically discharge that order; perhaps she thought such a discharge was unnecessary. The mother could not necessarily have foreseen these consequences of her making the threats to kill but, of course, once they are made such threats can have far reaching and unpredictable effects on persons who have become aware of them having been made, in terms of modifying or altering such person’s behaviour.
Mr Banden and Ms C were far too prepared in my judgment to understand, if not pardon, the mother’s actions in sending the email. Mr Banden in his oral evidence before me and in his dealings with the mother following the email demonstrated more concern with the effect it would have upon the success of the mother’s case than with any other aspect of it.
Police spoke with the mother after the email was sent and ascertained that the children were not at risk. They did so, everyone agrees, at the behest of the Marshall of this Court whom Judge Turner had contacted.
The mother did not exhibit any real contrition during her evidence at trial. Mr V observed in relation to the mother’s account to him of it in his second report at [56] as follows:
It was not readily apparent at interview that Ms Sayer regretted in any measure sending the email as she seemed much more interested in excusing herself completely because of the seemingly intolerable pressure she claimed to be under from the Court at that particular time.
Mr Banden, who throughout the proceedings has done his best to promote the mother’s applications, said this to Mr V during the interview for the second report:
Mr Banden presented as genially blunt, matter-of-fact and down-to-earth about the situation, clearly viewing X as being under acute emotional pressure, for which he held Mr Radcliffe completely responsible. He was keen to excuse Ms Sayer of any responsibility. He was extremely pleased that Ms Sayer had contacted him in 2011 about commencing time with X, because she had previously “shut” him out of X’s life completely. He observed, drily, that she could be “very spiteful” at times (and seemingly so over a long period of time).
The matters I have canvassed under the rubric under s.66CC(2)(b) include those which may have been more appropriately dealt with under s.60CC(3)(b) and (f), as those factors are considered both as to what has been the children’s experience and what may be the children’s experience in the future if they live with a particular parent.
If the children are non-compliant with the mother’s demands of them, or expectations of them, as they grow older there is a real risk that she will deal with them with the attitudes and behaviours she has displayed in dealing with both of their fathers at different times. Each father has been dealt with at times by her with a striking disregard and contempt for their role as father. Another way of expressing it is that the children’s entitlement to know and experience and be cared for by their other parent has been disregarded. Whether this amounts to “abuse” or “neglect” in accordance with s.60CC(2)(b) is a semantic exercise less important than recognising the risk to the children’s future emotional and psychological welfare in the care of the mother.
As to the additional considerations under s.60CC(3);
a)Y is too young for her views to be given weight even had she expressed views to Mr V;
b)Y has had limited opportunities to relate to Mr Radcliffe. She has a strong connection to her mother. It is, though, important to ask what kind of relationship she could have with Mr Radcliffe if it is given an opportunity to develop and I consider the prospects are good. I have concerns about the relationship with the mother as Y grows older and develops (or tries to develop) an independent personality;
c)Mr Radcliffe failure to participate in the exercise of parental responsibility or spend time with Y has almost wholly been a function of the mother’s attitude and behaviour. I say “almost” because I do not accept that he could not have tried to exercise time with Y at some point during the two periods she was unilaterally relocated there by the mother. I accept that he would have had apprehensions as to the hostility of the mother and grandmother had he travelled there; I accept he has no base to operate from (omitted); and I accept the difficulty would have been enlarged by the mother’s then insistence on supervision of and limitation of his time. Still, some attempt should have been made if the only alternative was no time-spent with her. Perhaps he focused too much on the costs associated with such an exercise. Having said that, he was not to know that the result of the mother’s threatening email was to have been the prolongation by some four or five months of the mother’s ability to stay in (omitted) with the children;
d)Y will experience some distress if she is ordered away from the person to whom she is most closely attached, her mother, and also if she is to live away from the maternal grandmother. All parties and observers agree that Y is also closely attached to X and would be distressed at living apart (in another state or Territory) from her half-sister;
e)If Y lives with the mother in (omitted) or Darwin, the spending of time with Mr Radcliffe (once the Court ceases to invigilate the mother) will return to the fraught, stressful, and haphazard experience it has been for her. Her advancing age will increase the emotional damage of all of this. She may experience more direct forms of attempted alienation of her from her father by the mother as has already been evident in X’s relationship with him (see especially Mr V’s second report). If she lives with her mother in (omitted) there will be no opportunity for Mr Radcliffe to see her other than irregularly, during school holidays or perhaps occasionally during school term. The mother will not cooperate in the practical arrangement for that time-spent or be reasonable about sharing costs. I doubt that she will even cooperate in such circumstances with Skype and telephone contact. Her cooperation in that regard after the second relocation, was, I find, tactical. If Mr Radcliffe had Y live with him in Darwin, I consider that he would do his conscientious best to facilitate time with the mother, wherever the mother lived. If X lived with the mother in (omitted) in those circumstances, he would encourage and facilitate as much time as possible between the two girls and this would also be the case if X lived with Mr Banden in Darwin;
f)This factor has been substantially explored in my consideration of s.60CC(2)(b), I should refer here to the maternal grandmother. She has stepped forward (except when tactically inconvenient to the mother in relation to housing in Darwin) to assume significant responsibility and financial burdens for the girls. She would have been a figure of some stability for them during these proceedings. The benefit this has brought to the girls has been compromised, though, by her inability or unwillingness to exert any influence on the mother, or express any proper judgment to her, following her wrongful behaviour. I am referring here to both unilateral relocations, to the threatening email and the obstruction of the relationship between Y and Mr Radcliffe (her knowledge of and attitude to the mother preventing a relationship of any kind between X and Mr Banden until the mother perceived advantage to her in dealing with Mr Radcliffe by permitting it, was not explored in the evidence);
g)There is nothing that would be described as a lifestyle, cultural or tradition issue that emerged on the evidence relating to the children or the parents;
h)This is not relevant;
i)The attitude of the parents to the child and childhood generally has also already (indirectly) been discussed;
j)I have discussed the family violence issues;
k)This is not relevant;
l)I apprehend my responsibilities in relation to this factor as being to identify which of the competing proposals, if any, is less likely to lead to the institution of proceedings in the future. If I am satisfied that such a proposal (or proposals) can be discerned, then I am to ask myself whether it is preferable to make an order reflecting that proposal, for that reason. A decision not to make such an order may be the result of the application of other s.60CC criteria, but that is not what I am behoved to consider under this factor; none of the additional considerations in subsection (3) can be given preference over any other additional consideration, in the sense that they all must be given such weight as is appropriate in the circumstances of the case. But if I find one proposal is more likely than another to bring the proceedings to an end, I must then determine whether it is preferable to do that; so the choice at that point is between the benefits of finality and the benefits of an opportunity to re-evaluate the circumstances of the child or a parent.
I must consider “proceedings” to include both enforcement or parenting provisions per se.
If an order is made that sees Y live with the father in Darwin and I do not order the mother’s return, the mother may return to Darwin in any event, perhaps shortly after judgment has been delivered and even though she said she would not be doing that after advice and considerable reflection. If she did return in those circumstances and made a fresh application and orders had been made (live with and time-spent and parenting orders) on the basis she would continue to live in (omitted), she would be required to satisfy the threshold requirements of the rule in Rice v Asplund (1979) FLC 90-725. She faced that hurdle following her unilateral return to (omitted) in September 2012 with final orders having been made in April 2012. The hearing as to whether that rule required the fresh application to be dismissed was the one vacated by Judge Turner after the mother’s threatening email.
Whether her fresh application would be dismissed or stayed (and whether that was done on the papers or after adduction of oral evidence) is something that can only be determined at that time. The relevant change in circumstance will need to be identified. If it is only the fact that the mother has had a change of mind (her earlier decisions having been recognised by her as flawed, perhaps, or simply not having brought about a desired result), then the risk of the parenting orders dispute not being reopened should not be under emphasised.
If I make orders which see Y live in (omitted) with the mother and order that Mr Radcliffe have an essentially holiday time-spent and orders for communication, the likelihood of there being repeated enforcement applications by him is high. Enforcement proceedings are less likely to be necessary if the child lives with the father in Darwin (wherever the mother lives) though proceedings following upon a retention of the child by the mother after exercising time-spent might be necessary. Hearing the recognition by the father – which I considered genuine – of the need to promote a relationship between mother and daughter and his much greater level of cooperation would suggest litigation would be less likely in these circumstances.
In my view it would be preferable to make such an order for that reason. The litigation in this matter has been intense. There have been two trials in just over two years. There have been two family reports processes and an 11F process. There has been an appeal to the Full Court. There have been many interlocutory applications with some of them having much turning on them e.g. whether the children should be ordered to return to Darwin pending trial. I infer that the litigation is highly stressful for the parties and directly and indirectly stressful for the children. An order that brings finality, or is more likely to bring finality is the order that, subject to other s.60CC considerations, should be made.
m)I have discussed, passim, other matters relevant to the ascertainment of the child’s best interests and will do so hereafter in these reasons.
I turn now to a discussion of the s.60CC considerations as they relate to X.
The principal parenting applications relating to X are whether she should live with the mother in (omitted) or with Mr Banden in Darwin. Mr Banden's Darwin proposal only arises in the event that I do not make an order which has the effect of X living with the mother in (omitted). The other aspect of the proceedings as they relate to X is whether she should spend any and if so what time with Mr Radcliffe.
Mr Banden was at the commencement of the hearing in June living in a relationship with a Ms B and with her son A aged nearly eight. As far as Mr V’s second family report was concerned Mr Banden and Ms B were in an apparently stable relationship. Mr Banden’s affidavit of 23 May 2013 said he was in a stable relationship with her. He puts the age of the child A at six. He said that he and Ms B had been together for five years and intended to purchase a home at (omitted). It was somewhat surprising, therefore, when Ms B did not appear at trial or file an affidavit. Mr Banden said in the witness box that he and Ms B had recently separated. He provided very little detail as to why. I formed the view that she had made a deliberate decision supported by him (or he had made one supported by her) not to attend to give evidence. However, there was nothing controversial in her participation in Mr V’s second family assessment. She was ad idem with Mr Banden on all aspects of the competing applications.
There is a significant overlap in my discussion of s.60CC factors in relation to Y and X. A great many of the findings and observations I have made with respect to Y apply mutatis mutandis to X. There are some specific considerations that relate only to her, of course.
Ms Sayer has from the time of separation from Mr Radcliffe obstructed and opposed him maintaining any form of relationship with her. I use the expressions “maintaining a relationship” because it is clear on the evidence that he had a relationship with her during the period that he and Ms Sayer lived together. Ms Sayer was clearly the person who exercised preponderant care of both girls during the relationship but I find that he had a significant relationship of affection with X and was involved to some extent in her day to day care. The evidence of Mr V in his second report (X was not brought to the first report sessions, contrary to orders of the Court) indicated that X and Mr Radcliffe still interacted affectionately and that the bond between them, whilst it should not be overestimated, has survived lengthy periods where they have not seen each other and, on the evidence, X living in a household where Mr Radcliffe’s involvement with her has been minimised and undermined. Mr Banden, I regret to say, has aided and abetted that undermining process. Yet the bond of affection between X and Mr Radcliffe has appeared to survive.
Mr Radcliffe has been clear throughout the proceedings that he does not want to usurp Mr Banden’s role as X’s father. But he was the only person able to fulfil such a role for the years of his relationship with Ms Sayer and that was because she prevented Mr Banden from having such a relationship. The attitude of Mr Radcliffe displayed in his evidence enables me, I find, to be satisfied that X will not experience any confusion or perturbation about there being two adult men who play a fatherly or quasi-fatherly role in her life. Mr Radcliffe understands the importance of and will promote the primary role of Mr Banden in X’s life.
Mr V says this at [72]-[73] of his second report in relation to his observations of Mr Radcliffe and X:
72. X presented as something of an endearing chatterbox, both during her short interview and during observation with Mr Radcliffe and Y (as well as during interaction with other adults). She conveyed a very cheerful, confident approach to Mr Radcliffe, seemingly completely at ease in his company, not exhibiting any signs whatsoever of any diffidence towards or dislike of him. Indeed, they had warm and affectionate exchanges. She displayed boundless energy (bearing in mind the constraints of being in the foreign and possibly very alien environment of the Registry).
73. During her interview she characterised her Wednesday times with Y and Mr Radcliffe as “fun”. She engagingly and warmly described, with a broad smile, their “play, eat, drink and shops” activities together and mentioned a wish for him to take her fishing one day (apparently sparked by seeing her paternal grandfather’s boat). In this account of time with Mr Radcliffe, her version aligns much more closely with his than that of her mother’s and maternal grandmother’s.
I have already referred to the paragraphs which then follow in his report which contain the observations which ground Mr V’s conclusions that Ms Sayer and Mr Banden (and perhaps Ms B) have embarked on a joint enterprise to skew the child’s sense of the significance of Mr Radcliffe in her life.
Mr Radcliffe and Mr Banden are agreed in their orders sought that in the event that the children live in Darwin they will spend regular time at the household of the other. In those circumstances X will have an ongoing relationship with her step sister’s father. Mr Radcliffe has much to offer her in terms of a balancing of the personality of her mother which she has experienced.
The orders which Judge Turner made on 17 April 2012, in setting out the time that each of the fathers spent with their daughters and Mr Radcliffe spent with X, contained the provision that enabled the father’s time with X on a Saturday to be suspended upon receipt of notice from Mr Banden fourteen days prior to that time of his intention to spend time with X. X was spending time with Ms Sayer by agreement until she departed for (omitted) in August 2012 and he has spent liberal time with her by agreement since the mother and children returned in February of this year. Notwithstanding that circumstance and the interruptions to X’s time which Mr Banden knows the mother has successfully effected, Mr Banden has cooperated with the mother in ensuring that Mr Radcliffe has barely spent a Saturday with X. That has continued even after my reservation of judgment. I was told this without demur by Ms Sayer or Mr Banden.
Mr Banden’s conduct in relation to this and other matters throughout the proceedings has been very disappointing. He well knows that the mother dealt with him in keeping him from X unreasonably and without any focus on the child’s welfare. He must have observed the same process at work with Y and Mr Radcliffe. He knows from Mr Radcliffe’s dealings with him and from the evidence before the Court that Mr Radcliffe supports his role as X’s father. Yet he has consistently supported Ms Sayer’s positions before the Court until it became clear that her decision making was providing the Court with a real option of placing both girls with their fathers in Darwin, in respect of which option he then stepped forward as a candidate for preponderant parenting of X. Yet his disrespectful treatment of Mr Radcliffe continues.
X has a sound relationship with her father. All parties, including Ms Sayer, agree on that. Mr V agrees. X speaks of him positively. X reports to Mr V in a way that indicates she sees him in a fatherly role. It is important that he continue to have a meaningful relationship with her.
Section 60CC(1)(a) is a legislative position relevant only to the evaluation of the best interest of children with their parents. It is not a primary consideration when evaluating the best interests of X spending time with Mr Radcliffe. But X’s views are an important consideration. Her real attitude to Mr Radcliffe has been identified by Mr V as some perspicacity. Her expression of her “views” per se has itself been instructive of her real attitude to Mr Radcliffe following Mr V’s analysis of them (discussed at [89 xi)] of his second report).
If X lives with the mother in (omitted), X will spend time with Mr Banden and have an opportunity for a meaningful relationship with him. I am reasonably confident of that although I cannot discount the possibility, once the proceedings are finalised, of Ms Sayer returning to a position where, for whatever reason, she sought to exclude Mr Banden from X’s life. I have already indicated that the explanation Mr Banden and Ms B seem to have been provided by Ms Sayer (and accepted, it appears) is no valid reason at all and is certainly not indicative of any focus upon the welfare of X. These considerations apply whether the mother lived in Darwin or (omitted) though clearly if the mother lived in Darwin and did not resume her opposition to Mr Banden spending time with X when the proceedings were finalised, Mr Banden would spend time with X and more regularly than he would if the mother lived in (omitted) and to that extent the relationship would be more meaningful.
If X lives with Mr Banden in Darwin, the mother will see X as regularly as Court orders require and as regularly as the mother wishes to avail herself of such time-spent. Mr Banden will not do other than enable X’s relationship with her mother in that event to continue for the maximum amount of time possible.
In respect of the second of the primary considerations I have already remarked upon the mother’s attitudes and behaviours as carrying some degree of risk for the emotional welfare of the children in the long term and indicated that may constitute “abuse” in terms of this primary consideration but even if it does not, it is a significant matter arising in respect of at least two of the additional considerations.
X has a very strong relationship with her sister and all parties and Mr V agree that it should be maintained. I have referred to this in discussing the best interest of Y. Once again my discussion of additional considerations relating to her apply, mutatis mutandis, to X’s circumstances.
Section 60CC(3)(b)(ii) requires me to give consideration to the nature of X’s relationship with both parents and Mr Radcliffe. I have already indicated I regard the relationship as a sound one with considerable potential for the benefit for X. The relationship with the maternal grandmother also must be brought to account here. She has a close relationship with X and has done much for her and is significant to her no doubt.
No question arises under subsection 2(c) of Mr Radcliffe failing to take opportunities to spend time with X or of Mr Banden doing so at an earlier time. Their respective relationships have been obstructed at those different times by the mother.
Mr Banden has fulfilled his obligations to maintain X (just as Mr Radcliffe has fulfilled his obligations to maintain Y).
X will suffer some distress (initially, in any event) if she does not continue to live with her mother. She is the only person she has experienced as providing on-going parenting to her (apart from Mr Radcliffe very recently, Mr Banden as a time-spent parent, foster placement for two brief periods, and, of course, the maternal grandmother). This is manifestly a very important matter to take into account and I do so. On balance, though, the best interests of X will be advanced by her living with her father though it is a finely balanced exercise.
I have already noted that she ought not to be separated from Y if that can be possibly avoided. One of the ways in which I must be very cautious in this case is in not allowing the best interest of one of the girls to dictate the orders that should be made for the other. Separating the girls would only be an option if an evaluation of their individual best interest required it. It may be that one child’s best interests will be significantly advanced by making orders the effect of which, if the girls are kept together, will be to less significantly advance the interests of the other girl or, to perhaps put it more felicitously, to advance them in a less significant or substantial way.
If X lives with the mother in (omitted) the opportunity for her to have a relationship with Mr Radcliffe could be regarded with near certainty as being extinguished (this is in addition to the practical difficulty and expense of the exercise of such time-spent, even if it were ever to be supported by the mother (s.60CC(3)(e)).
The evidence established clearly that X would benefit from having an opportunity to have a relationship with Mr Radcliffe
I should say a word at this point about the two witnesses of a professional nature who gave evidence on behalf of the mother. I refer to Mr M and Ms D. Both of these witnesses were honest, straightforward and professional. They each provided reports which are annexed the mother’s affidavit of 22 January 2013. As with other reports elicited by the mother and annexed to that affidavit, from Ms I, Dr W and Ms L, they were procured by the mother in the period following the judgment of Judge Turner of 17 April 2012 leading up to her decision to remain in (omitted) or procured very shortly after her decision to stay there. The problem with the reports of Mr M and Ms D (indeed, also of the reports which were not received in evidence) is that all of the background information about the girls is provided by Ms Sayer. In that Mr M was really engaged to provide a psychological report based upon Psychometric, Personality and Emotional Stability Tests administered by him that is not as important as it is with Ms D. Ms D acknowledged in her oral evidence a range of matters relating to the mother’s conduct and other matters which this Court had heard about but of which she was completely unaware. This undercut the worth of her observations, leaving only her observations of the children in play. Both of the girls are reported to be developing age appropriately in such play. Mr Radcliffe had no opportunity whatsoever to contribute to the exercise of the preparation of either report. Mr Banden had a telephone communication with Ms D.
Mr M’s psychological assessment of the mother is unexceptional.
I find that it is in X’s best interests to have an opportunity of a relationship with Mr Radcliffe.
I turn to s.61DA.
All of the parties asked me to make orders for equal shared parental responsibility with respect to the parents of both children and I propose to fall in with their respective proposal in that regard. I am not obliged to fall in with their proposal. The section provides for a presumption that it is in the best interests of a child for a child’s parent to have equal shared parental responsibility. I do not consider that the presumption is rebutted by the matters referred to in subsection (2). Family violence was not substantiated and neither was abuse. These matters have been discussed passim.
The presumption also does not apply if it is rebutted by evidence that satisfied the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. Having regard once again to the considerations set out in s.60CC I am satisfied that it is in the best interests of each child for the parents of each child to have equal shared parental responsibility for that child.
In the case of Y there is no set of orders that the Court could make given the range of proposals put by the parties where an order for equal shared parental responsibility would not benefit her. If the child were to live with the mother in Darwin or (omitted) such an order would serve as an appropriate fillip to the mother to engage the father in issues relating to the welfare of the child, such as schooling and medical attention and travel. She would be unlikely to exchange any information without such an order. The existence of an order of Court, as we have seen during the course of these proceedings, is not always the end of the matter for the mother but the Court continues to expect compliance to be given with any order it makes.
If the child is to live with Mr Radcliffe in Darwin then the existence of the order would encourage the mother to involve herself in the life of the child and would constitute a reminder to Mr Radcliffe to share information with the mother (which he is likely to do voluntarily in any event) even if the mother were not receptive to it on account of her resentment or further ill feeling arising from an order that the child live with him.
If X lives with the mother in (omitted) or in Darwin, given the co-operativeness between the two households of her parents (at the present time, at least) information and decision making is more likely to be shared between them than Y’s parents but that can always change and the order should be made. If the child is to live with Mr Banden in Darwin then the order should be made for the same reason.
Because I am making an order for equal shared responsibility for each child I must therefore proceed to consider each child spending equal time or substantial and significant time with each parent. With respect to each child, the exercise involves determining whether equal time or substantial and significant time orders are, firstly, in the best interests of the child, and, secondly, whether they are reasonably practicable. The reasonable practicality of the order is a separate exercise which must be undertaken in each case.
I deal with X first. Assuming the reasonable practicality of the arrangements is it in X’s best interest for there to be an equal time order? I consider there would be limited benefits from such an order. An important issue in this case has been the identification of the opportunism at the heart of the mother’s decision to re-introduce X to Mr Banden. Mr Banden, in his evidence, purports to be unconcerned about this history now, but it is a concern to the Court as to what will happen when the proceedings are finalised. I have no confidence that the mother will deal with the issue of X’s relationship with her father from the perspective of what is best for the child. The existing co-operativeness may expire with the proceedings. It is one thing for the Court to have an expectation that the sharing of information and decision making about issues of parental responsibility will continue but the level of cooperation and civility needed to make transitioning from one household to another workable is likely to be missing. It would be preferable for X if it were otherwise but the attitude of the mother and the background to this case suggests that an equal time arrangement would break down or bring with it further tension and uncertainty to the life of the child.
I indicated I was assuming the reasonable practicality of the arrangement. I turn now to consider that issue.
If an order for equal time was in X’s best interests, I do not think it would be reasonably practical for Mr Banden to live in (omitted). He does not want to travel to live in (omitted) and I would have to order him to do so. He has stable employment in Darwin as a (occupation omitted). I believe, on balance, that he and Ms B will continue to live together as they have done since 2008. Ms B has a child of school age. It is not reasonably practicable to have an equal time order in those circumstances.
It would be less impractical to effect an equal time arrangement with both parents while they were living in Darwin. Again, I would have to order the mother to live in Darwin. I consider that if she was serious about finding employment she could find it in Darwin. She would not have the support or accommodation provided by her mother but she is capable of living independently. The offers of part-time employment she has in (omitted) are not significant. But she would be disgruntled and discontent to be ordered to live somewhere she did not want to live and that is a factor in the impracticality of the arrangement as well. My finding that it is in Y’s best interest to live with her father (even if the mother lived in Darwin) also suggests an order for X to live with her parents with them both living in Darwin is impractical because it would mean that the mother could (and, I find, in all probability, would) interfere with the opportunity for the girls to see each other each weekend, which is what I propose to order (and I propose to order extensive contact between them each weekend). It may be that this is a “best interests” component of the s.65DAA exercise rather than a “reasonably practicable” component but the semantics do not matter; what matters is recognising the real benefits or risks for the child (in this case X). The benefits also inure to Y.
Essentially the same considerations apply if I consider an order for substantial and significant time for the parent with whom X is not living. The considerations are essentially the same because one parent would have to move to the state or Territory in which the other parent lives. Substantial and significant time for such parent is certainly in X’s best interests (no party would suggest otherwise) but it is not reasonably practical for similar reasons.
This is not a case where, if I exercised the power to order a parent to live in a particular locality, she would after some displeasure and period of adjustment, recognise the benefits of living in the same locality as the child (or children) and being able to exercise substantial and significant time. On the contrary, the proximity of the mother would have a destabilising influence because it is very likely there will not be any change in the attitude of the mother. There is no basis in the evidence for me to assume that there will be.
I turn to Y. I do not consider an order for equal time to be in Y’s best interests wherever her parents lived and whether or not they lived in the same state or Territory. The mother is intensely oppositional to the development of the father’s relationship with Y. The facilitation of limited time-spent since the separation of the parties has been extraordinarily difficult and stressful. There is no basis in the evidence to assume that the mother would affect any change in her attitude to Mr Radcliffe or his relationship with Y. It could get a great deal worse depending on the outcome of these proceedings and if the mother was dissatisfied with the outcome. It would not be in Y’s best interest to be obliged to undergo frequent transitions between households or experience the negativity associated within the household of the mother to the father. Y’s childhood is likely in such circumstances to be characterised by instability and insecurity. Even if I assume such an arrangement were reasonably practicable, I do not consider it would be in the child’s best interest.
The arrangement would not be reasonably practicable in any event. If the child was to live in Darwin it would require me to order the mother to live there and for similar reasons I gave in relation to X, I do not consider that to be reasonably practicable. I would not consider it to be reasonably practicable, either, to order the father to live in (omitted) to give effect to such an arrangement. He would be living in a country location in Queensland with which he is wholly unfamiliar and with which he neither has nor had any connection. Employment opportunities would be difficult and would put in jeopardy his long standing ability to pay child support, which is a not insignificant consideration. I certainly do not consider the (omitted) course he was undertaking last year to be a reason for him not to relocate himself. As I understood his oral evidence at trial that course has been abandoned but in any event it is not practical to oblige him to give up his Darwin employment for the uncertainties and isolation of life in (omitted), and for highly questionable benefits for the child, because of the mother’s lack of cooperation.
Once again the same considerations apply in relation to the issue of substantial and significant time as applies to the issue of equal time and this is a function of the parents living in a different state or Territory. Substantial and significant time with the parent with whom she does not live would theoretically be in Y’s best interests. But the reality of the situation is, for the reasons given already, it would not be in Y’s best interests because the mother’s attitude to the father and to the parenting of the child would not be permit it to be. Neither is it reasonably practicable. It would require ordering one parent to live in a state or Territory over their opposition. It would be less impractical to order the mother to do so because of the additional employment opportunities in Darwin, her familiarity with the city and the social and services connections she has made since she has lived in the Northern Territory but it is still impractical, principally because of her oppositional attitude to the father’s relationship with the child. Her Court-ordered presence in Darwin exercising substantially and significant time only where she was resentful and oppositional to an outcome of the trial which saw the child live with Mr Radcliffe is not a reasonably practicable arrangement.
This is a case that has presented many challenges and difficulties in determining the orders that should be made. Not the least of those difficulties is dealing with a relocation issue where one child’s father supports a relocation and the other opposes it and where one child’s father is sanguine about the prospects of having a proper relationship with his daughter if the mother’s relocation with her is permitted and the other father believes (on reasonable grounds) that he will have little or no relationship with his daughter if the mother’s relocation with the child is permitted.
Unless the siblings are split, the decision making may seem to require the interest of one child prevailing over the interests of the other but in fact the exercise does not involve that so much as the Court weighing the relative benefits and disadvantages for each child of the relocation. In this case, the advantages to Y of not permitting the relocation by the mother with the children outweigh the disadvantages to X and that is even though with respect to both children my orders require them to live in Darwin with their respective fathers.
It is neither just nor convenient to order the mother to live in Darwin, to use the language of s.114(3). It would not be just and convenient to order her to return because I do not consider her living in Darwin and having the children live with her would be in the best interests of the children. It would not be in the best interest of Y because she would have no opportunity of a meaningful relationship with her father and for the other reasons I discussed when ascertaining her best interests. It would not be just and convenient to order her to do so, either, given that I consider X’s best interests (looked at in isolation) would be (marginally) advanced by her living with her father in Darwin in any event. In my view the overwhelming conclusion to be drawn from all of the evidence is that it is very important for Y to have an opportunity to live with her father for the reasons I have discussed. Given that, and given that it would be marginally preferable for X to live with her father rather than her mother, my orders are that each child should live with their father in Darwin. Even assuming that I had found that it was marginally preferable for X to live with her mother in (omitted) or for that matter Darwin (if I left aside any consideration of Y’s best interests or of the benefits to both girls from being with each other each weekend) the significant benefits to Y from living in Darwin with her father coupled with the benefits to both girls from being able to interact every weekend with each other may still have resulted in me making orders that X live with her father in Darwin. It is also preferable, for the reasons I have given, to make an order that X live with the mother in Darwin. I will make an order that X live with her father with an opportunity of spending each weekend and other extended time with her sister and in addition have the opportunity of experiencing and benefitting from a relationship (subsidiary to her relationship with her father but still of significance and benefit for her) with Mr Radcliffe, for the reasons I have discussed earlier.
I propose to order that Y live with her father and X live with her father and the orders are made upon the expectation that each of the fathers will continue to live in Darwin.
I turn now to the form of the time-spent orders and other orders relating to parental responsibility.
The Full Court indicated some disquiet in this matter at the confusion arising from the operation of the orders of 12 April 2012. These were orders made with the consent of Mr Radcliffe and the mother. It will be recalled that Mr Banden did not participate in the first trial. The orders themselves, dealing with communication and exchange of information and other aspects of equal shared responsibility, seem unexceptional enough but I think the better course of action in proceedings that have been as disputatious as these proceedings have been is to discharge all existing parenting orders and to make a fresh set of comprehensive orders relating to both children. It was somewhat unclear whether the parties were seeking the discharge of the orders of 12 April 2012 and, if they were, whether that was a deliberate instruction from their respective clients or an oversight. The best course is to discharge them.
As described earlier in this judgment each of the fathers have a comprehensive set of proposals relating to a spending of time of the children with the mother in the event that the children live in Darwin and the mother remains in (omitted) which is the legal and practical outcome of the orders I am making. The time-spent that the mother spends with X and Y on the application of the respective fathers is generous and detailed. Mr Radcliffe’s proposals include, in that event, detailed provisions as to the exercise of time-spent by the mother, not only with Y, but with X. Mr Banden’s proposal confines itself to the mother’s time-spent with X. The proposals of the fathers also include detailed provisions for the exercise of time-spent by the mother on special occasions (again, Mr Radcliffe’s proposals are much more detailed than Mr Banden’s).
It will be recalled that the mother’s specific proposal “in the event that the children live in Darwin” to use the language of her outline (and that misstatement of the nature of the Court’s obligations also appeared in the outlines of the respective fathers – see [47]) was that the children live with their respective fathers. She then went on to seek an order for the provision of certain information in relation to both children (which reflected in general terms the orders relating to the provision of information about Y that are found in the consent orders of 12 April 2012). She then sought Skype communication at 5pm Darwin time daily, at 5pm on each of the child’s birthdays, at 5pm on Mother’s Day and at 5pm on her birthday and sought that each aspect of the Skype communication involve both children with “father to organise location details”.
She then sought time-spent in alternate years at Christmas and Easter alternating in (omitted) and Darwin in each year. She did not say how much time-spent she sought at those times.
The mother’s proposals are clearly the product of careful consideration. The mother has throughout the proceedings demonstrated a propensity to act in accordance with her own judgment in relation to what is appropriate relating to parenting matters and this must be especially so relating to what is most appropriate in relation to matters specifically pertaining to her exercise of time-spent. She is more likely to adhere to and cooperate in the implementation of orders which she has, as it were, authored herself rather than orders which have been proposed by the respective fathers or formulated by the Court.
It may be that the fact that she has sought no time-spent during school holiday periods (other than, inferentially, time-spent at the end of first term and time-spent in December of each year – correlating with “Easter” and “Christmas” –) is a product of her reflection as to the difficulties for her and for the children in her coping with and cooperating with a regime which sees the preponderant exercise of care for the children repose in each of the fathers. It may be that she changes her mind about that and makes a further application or it may be she changes her mind about living in Darwin. As I have indicated earlier in these reasons any issues arising from such an application if it is made will be dealt with at the time. I propose to fall in with her own formulation of the information-provision, communication and time-spent orders.
The other significant issue arising on the time-spent component of the orders is in the amount of time-spent the respective fathers are to exercise with the child in the care of the other father. The orders I make will not only reflect the opportunity that I have found X ought to be given to spend time with Mr Radcliffe but also facilitate the regular interaction of each of the girls. The major difference between Mr Radcliffe and Mr Banden on their proposals is the amount of time the girls spend together. Mr Banden proposes that X spend time “with Y” each Saturday from 9am to 5pm, alternating between the residences of the respective fathers, with the exception of the birthdays of the respective fathers and of the children. He also proposes that the fathers make arrangements, if practicable, for the children to attend the same vacation care program. It will be recalled that both fathers are in full time employment. Mr Radcliffe seeks time with X overnight on Wednesday during each school term and from close of school on Friday to commencement of school on Monday in alternate weeks. He also seeks time-spent with X for term one school holidays in odd numbered years and term three school holidays in even numbered years. He seeks two weeks in the Christmas holidays in odd numbered years and two weeks in the Christmas holidays in even numbered years. He then has a specific set of proposals for special occasions.
The differing proposals of the fathers reflect Mr Banden’s lack of recognition of the significance of the relationship between Mr Radcliffe and X, in both its historical aspect and its prospective aspect in that he will be, of course, present when X spends the “time with Y”, referred to in his proposal.
I propose to make an order that sees Mr Radcliffe spend alternative weekends with X during the school term from 5pm on the Friday until 5pm on the Sunday, with Mr Banden exercising time-spent with Y on the intervening Sundays between 9am and 5pm. I do not propose to order mid-week time spent. This way the girls will see each other each weekend and on alternative weekends they will have overnight time together which will also provide an appropriate opportunity for the development of the relationship between X and Mr Radcliffe. The three-night alternate weekends sought by Mr Radcliffe would be excessive in my view.
The fathers should utilise the same vacation care programs for the girls unless it is simply impractical.
Orders should be made which see the respective fathers provide contact to the other father with the child who lives with them for one week in each non-Christmas school holiday period and for two weeks in each Christmas school holiday period. These school holiday time-spent orders should be subordinate to the end of term one holiday time and Christmas holiday time the mother should exercise with both girls on her proposal. She does not articulate how much time she should spend with the girls at those times of the year but I will order a period of one week. The orders she has sought talk in terms of “alternative Christmas and Easter time-spent”. Whilst Christmas Eve/Christmas Day time-spent should be exercised by her in alternate years (with the fathers sharing those days in the intervening years) and she should exercise time-spent for the entirety of Easter in alternate years (with the fathers sharing Easter in the intervening years) she should also exercise time-spent contiguous to Christmas Eve/Christmas Day and Easter in each year such that the cumulative amount of time at each time of the year would be one week. That is what I will order.
The costs of the transportation of the children (who should travel together) to and from (omitted) on those occasions should be shared in equal parts by the mother on the one hand and the fathers jointly on the other.
I would otherwise make the orders for Skype communication set out in paragraph 18 of the final orders sought by the mother (document 60 on the Court file) and in terms of paragraph 17 of that document. The Skype communication orders cannot be framed in such a way as the children are together and should be expressed in terms of the individual obligations of the fathers concerned. Furthermore the Skype contact referred to in paragraph 18(i) should be on alternate days and not on every day and should only be operative during school term.
X and Y should spend time with each other on their respective birthdays and all orders must be conditional upon each child spending their birthday with their respective father notwithstanding the operation of any other order I make.
In summary I will order:
i)Each child to live with her respective father;
ii)Each parent of each child to have equal shared parental responsibility for that child;
iii)Orders in terms of paragraph 17 of the mother’s proposals for information to be provided to her in relation to X and Y;
iv)Orders for the exercise of communication by the mother and the exercise of time-spent by the mother as set out above;
v)Orders for the exercise of time-spent by the respective fathers as set out above.
Because of the change in the arrangements for the children that will now ensue and because there is some reasonable degree of cooperation already evident between the fathers in terms of facilitating time-spent with the girls, and because they may wish to modify mechanical aspects of the implementation of my orders in accordance with their personal circumstances, I will direct that the solicitors for the father prepare a draft order in accordance with these reasons and with orders I have adumbrated in the proceeding paragraphs. I have indicated the orders I propose to make which pertain to the mother. It is only in relation to the details of the time-spent arrangements as they relate to both fathers that consultation is required, and then only between them. I direct that the Minute, however, deal with all matters addressed in these Reasons.
I propose to adjourn the matter for one week to enable that draft Minute to be prepared and to continue the order that sees both children live with Mr Radcliffe during that further short adjournment.
I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of Judge Lindsay
Date: 15 November 2013
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