Radcliffe & Sayer and Anor
[2012] FMCAfam 342
•17 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RADCLIFFE & SAYER and ANOR | [2012] FMCAfam 342 |
| FAMILY LAW – Children’s matters – where applicant is biological father of eighteen month old child and second respondent father of the older child – where applicant was father figure for the older child – where applicant has only seen the younger child for a total of less than twelve hours in the last twelve months and has spent no time with older child – where despite court orders for supervised time the mother chose to relocate to (omitted) – where younger child is unaware applicant is her father – order for the mother to return the children to Darwin – father to have unsupervised day time to increase gradually with both children – mother to attend family therapy – change of name – younger child to have hyphenated name. |
| Family Law Act 1975, Part VII, ss.60B, 60CC, 61DA, 65C(c), 65DAA |
| Goode & Goode [2006] FamCA 1346 Morgan & Miles (2007) FamCA 1230 MRR & GR (2010) HCA 4 Chapman & Palmer (1978) FLC 90-510 |
| Applicant: | MR RADCLIFFE |
| First Respondent: | MS SAYER |
| Second Respondent: | MR BAGGOTT |
| File Number: | DNC 280 of 2011 |
| Judgment of: | L.Turner FM |
| Hearing dates: | 15 & 16 March 2012 |
| Date of Last Submission: | 16 March 2012 |
| Delivered at: | Darwin |
| Delivered on: | 17 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farmer |
| Solicitors for the Applicant: | Withnalls Lawyers |
| Counsel for the First Respondent: | Ms Holtham |
| Solicitors for the First Respondent: | Holtham & Associates |
| The Second Respondent: | No Appearance |
ORDERS
That all previous children’s orders are hereby discharged save and except the consent orders dated 12 April 2012.
That these orders be read in conjunction with and in addition to the final consent orders dated 12 April 2012.
That from the date hereof the child X born (omitted) 2010 shall be known as X and that each party shall do all such things and sign all such documents as are necessary to change the child’s name with Births, Deaths and Marriages Registry within fourteen (14) days from the date hereof and should either party fail to sign the requested documents a Registrar of the Family Court of Australia upon proof of an affidavit of such failure is appointed pursuant to section 106A of the Family Law Act 1975 to execute any required documents on behalf of either party to give full force and effect to this order.
That the children Y born (omitted) 2007 and X be returned to Darwin on or before 4 May 2012, failing which a recovery order in the usual terms will be issued forthwith.
That the children live with the mother within in the Darwin area, which includes all locations within a 30 kilometre radius of the Darwin Post Office.
That the children not be permitted to relocate from the Darwin area without the prior written approval of both parties or court order.
That the father is to spend time and communicate with the children as follows:-
(a)From Saturday 5 May 2012 and every fortnight thereafter until Saturday 8 September 2012 from 9.00am to 12 noon;
(b)From Saturday 8 September 2012 and every fortnight thereafter until Saturday 1 December 2012 from 9.00am to 2.00pm;
(c)From Saturday 1 December 2012 and every fortnight thereafter from 9.00am to 5.30pm;
(d)Commencing Wednesday 9 May 2012 and every Wednesday thereafter from 2.30pm to 5.30pm;
(e)On 8 May of each year from 2.30pm to 5.30pm;
(f)On 20 September of each year from 2.30pm to 5.30pm;
(g)From 9.00am to 1.00pm each Father’s Day;
(h)For two (2) hours each Christmas Day at a time to be agreed upon between the parties;
(i)For two (2) hours each New Years Day at a time to be agreed upon between the parties;
(j)At all other times as agreed upon between the parties;
(k)Telephone communication at 6.00pm each Monday with the father to make the call to a number to be supplied by the mother, with the mother to ensure that Y is available to take the call.
That the father’s time with Y on a Saturday is to be suspended upon receipt of written details from Mr Baggott fourteen (14) days prior to the scheduled spend time with period of his intention to spend time with Y.
If for any reason the mother cannot care for the children or either child during the children’s time with the mother, then the mother must give first option of caring for the child or children to the father, and if the father is not available, then second option to the paternal grandmother. This order does not refer to the mother’s use of day-care, after school care or vacation care facilities when the children are in her care.
That the mother is permitted to suspend the father’s time with the children for up to four (4) weeks a year, provided the mother gives fourteen (14) days written notice of when time will be suspended, together with details as to make up time for the father.
That the father be notified in writing within fourteen (14) days of any decisions made by the mother and Mr Baggott in relations to any major long term issues regarding the child Y.
That in June 2013 the parties are to take whatever steps are required to review the spend time with arrangements for the children with a view to increasing time to overnight and entering into consent orders reflecting the arrangements.
In the event that the parties are unsuccessful in their negotiations, then an application can be made to the court, but only after the parties have attempted family dispute resolution.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Radcliffe & Sayer and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 280 of 2011
| MR RADCLIFFE |
Applicant
And
| MS SAYER |
First Respondent
| MR BAGGOTT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent is the mother of two little girls, Y aged nearly 5 and X aged 18 months.
The applicant is the father of X.
The second respondent is the father of Y.
Although involved at the commencement of the proceedings, Mr Baggott elected not to participate in the final hearing and has not filed any material for the final hearing.
For the purpose of judgment I will refer to the applicant as the father and the first respondent as the mother.
The mother without informing the father and during the court process, despite orders providing time for the children with the father, moved to (omitted) Queensland with the children in January 2012 resulting in an urgent final hearing.
The father wants the children returned to Darwin so that he can spend time with them both.
The mother wishes to remain in (omitted) and whilst agreeable to the father spending time with X, does not want it to extend to Y.
There is also a dispute as to whether X’s last name should include the mother’s last name.
Issues
The issues then that I am required to determine are:-
a)Should any orders include Y?
b)Should the mother be permitted to relocate the children and remain in (omitted)?
c)If relocation is not in the children’s best interests, is it reasonably practical to expect the mother to return to Darwin?
d)If relocation is permitted and the children remain in (omitted), what time is the father to spend with the children?
e)If the children are returned to Darwin, what time is the father to spend with the children and should that time include Y?
f)Is the time the father is to spend with children substantial and significant?
g)What last name should X have?
h)Additional issues.
In addressing each of the issues I have considered:-
a)and read all the material as marked in the court file including the section 11F Advice to Court dated 20 October 2011 and the family report prepared by Mr V in March 2012;
b)and read the exhibits;
c)the oral evidence of the parties, the family report writer and the witnesses;
d)the relevant sections of Part VII Family Law Act 1975 and in particular section 60B, section 60CC, section 61DA and section 65DAA;
e)the principles and pathway as discussed in Goode & Goode [2006] FamCA 1346;
f)the principles relating to relocation and in particular the pathways and principals as discussed in Morgan & Miles (2007) FamCA 1230 and by the High Court in MRR & GR (2010) HCA 4; and
g)the criteria set out in Chapman & Palmer (1978) FLC 90-510 in respect to change of name.
Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.
Should any orders include Y?
Y is not the biological child of the father.
Until the mother moved in with the father in late 2008, Y had no father figure in her life as her biological father Mr Baggott was not involved as a result of the mother excluding Mr Baggott from Y’s life.
From the age of 18 months until the age of nearly 4 when the parties separated, Y saw the father as a father figure and calls him “Dad.”
The father has accepted Y as his own child caring for her during the relationship. It is captured by the report writer in the section 11F Advice to Court prepared for the purposes of the interim hearing that the father “wanted to maintain contact with Y since he had been her father figure for over two years and he considered her as his daughter as well – he commented that one cannot just turn off everyone’s feelings.”
It was only subsequent to the application being filed by the father that the child was re-introduced by the mother to Mr Baggott.
The Advice to Court also addressed whether Y would suffer confusion spending time with the father, when Mr Baggott was now wanting to re-establish a relationship with his daughter.
The report writer noted at the conclusion of his report that “Y needs for the present to concentrate on developing her emotional bond with Mr Baggott, but that would not necessarily preclude her from spending time in the future with Mr Radcliffe with whom she has formed a reasonable bond over two and a half years together.”
The mother gave evidence at the hearing that Y has spent time with Mr Baggott, and will communicate and spend time with him in the future although no set arrangements are in place.
The mother further admits that Y understands the difference between her biological father and the father.
The father accepts and embraces the importance to Y of having her biological father in her life and does not want to interfere in that relationship or impose on their time together.
Conclusion
I find that the father is a person who has and continues to be “concerned with the care, welfare or development” of Y in accordance with section 65C(c) Family Law Act 1975 and as such the father is entitled to bring proceedings for parenting orders for Y.
I therefore find that the inclusion of Y in the father’s application is proper.
Should the mother be permitted to relocate the children and remain in (omitted)?
It is evident from the material that when proceedings were commenced by the father in August 2011 he was not aware of the mother’s intention to relocate from Darwin with the children.
This information came to light when the mother filed her response in October 2011 whereby an order was sought for the mother to relocate with the children to (omitted).
There was no urgency though in her application with the mother deposing at [33] of her October 2011 affidavit that “On a final basis, I would like to relocate to (omitted) with both children.”
In her discussions with the report writer in November 2011 the mother stated that “she saw the reality of relocation needing to be delayed now, perhaps until mid 2012, although she could tolerate it being delayed until the end of 2012.”
In November 2011 interim court orders provided for the father to spend supervised time with X for two hours each week and for Y to accompany X on four occasions between November and April 2012.
On 17 January 2012 the mother made a unilateral decision to move to (omitted), with the court and the father finding out about the relocation after the event.
By the time the mother had relocated, the father had not spent any time with Y in accordance with the court orders and had only spent time with X at the contact centre on four occasions as well as one hour on Christmas Day and one hour on New Years Day.
The mother now wishes to remain in (omitted) with the children.
The mother’s reasons for relocation are:-
a)The maternal grandmother who lived previously in Darwin moved to (omitted) in October 2011 and the mother who depended on her for assistance with the children wants to be physically close to the maternal grandmother;
b)The mother was under “great financial pressure” in Darwin and that pressure is relieved in (omitted) as the mother and the children now live with the maternal grandmother in her house;
c)The mother has no employment or housing if she is required to return with the children to Darwin.
The father wants the mother to return the children to Darwin.
His main concern is that as he has not since separation in mid March 2011 seen Y and has only spent a total of some 10 to 12 hours with X, that his bond with Y is diminishing, and that his bond with X has not yet been established.
Conclusion
I find having considered all of the evidence that it is in the best interests of the children for the children to return to Darwin for the following reasons:-
a)I accept that the father at this point in time is unable to relocate to (omitted). The father is presently undertaking Certificate IV training through his current employment which locks him in for the next two years, and a move will result in the loss of employment and qualification. I further accept that (omitted) is a small town and the possibility of similar employment opportunity for the father is poor;
b)If the children remain in (omitted), X will not have the benefit of a “meaningful relationship” with the father, as required by section 60B (1) (a) and will be deprived of the “right to be know and be cared for” by the father as required by section 60B (2) (a);
c)I find that the only opportunity for X to form that bond is for the child to be returned to Darwin. The reasons for my finding are as follows:-
i)When separation occurred in March 2011 X was only 6 months old and did not see her father again until December 2011 when the child was 14 months old;
ii)Since December 2011 the father has spent a total of 10 to 12 hours with X, with all time being supervised either in the contact centre or by the mother;
iii)Since the mother left Darwin in January 2012 the father has not seen or spoken to X except briefly at the family report interviews in February 2012;
iv)The mother admits that X has no bond with the father stating in cross examination that “X doesn’t understand Mr Radcliffe is her father”;
v)The report writer in cross-examination was of the view that although X “has not been able to form an attachment” to the father, it’s not too late for that bond to form;
d)I have no confidence in the mother facilitating or promoting any relationship between the father and the children should the children be permitted to remain in (omitted) and I base that finding on the following:-
i)The mother in her evidence presented as a
ii)cocky conceited selfish self centred person who put her needs first before any one else including the needs of the children. The mother summed it up best in her own words of “Happy mum happy bub”;
iii)The family report writer describes the mother at [38] of the family report as “extremely forthright and unbending in her views, as well as being totally convinced about the merits of her decision making”;
iv)I find that the mother is not child focussed, and as such is unlikely to put the needs of the father first, little alone the needs of the children when it comes to spending time or communicating with the father;
v)The mother apart from a token gesture for supervised time for the father with X at the time of separation, an offer which I doubt would have materialised, has not actively promoted any time between the father and either child;
vi)The mother has complete disregard for the father as an important and necessary adult in these very young children’s lives, placing the importance on herself and the maternal grandmother;
vii)The family report writer describes the mother at [53] of the family report as exhibiting “her own keenly self appreciated superiority over Mr Radcliffe in the parenting stake”;
viii)The mother has contempt for the father as illustrated by the following:-
· The mother has failed to keep the father informed as to the children, deliberately changing her telephone number after separation, and not responding to any emails;
· Since moving to (omitted) the mother has refused to provide the father with an address or landline number;
· The mother has not allowed the father to see Y since March 2011;
· The father has spent a total of some ten to twelve hours with X in the last twelve months;
· The mother has provided the father with very little by way of progress reports or photographs of either child;
· The mother admits that she holds the maternal grandmother as being more important to the children than the father;
· When the mother placed Y into foster care the mother chose not to contact the father or the paternal grandmother to provide her with assistance with the children, opting instead to contact Mr Baggott who has no relationship with X and whose relationship with Y in its infancy;
· The mother in cross-examination whilst promoting herself as “loving nurturing” towards the children and “providing shelter from emotional” upheaval, when asked what positives she could say about the father promptly replied “I can’t give any comments as to the father being a good father as I don’t know him well enough”;
e)The mother has complete disregard, and as her attitude would suggest, contempt for court orders demonstrating several breaches for which the mother has shown no remorse or concern;
f)Her attitude is captured at [53] of the family report “It would appear that Ms Sayer has opted to put her parental judgment about the children’s best interest ahead of what she views to the court’s completely inadequate appraisal of those best interests. By leaving her fulltime job…and uprooting the children, particularly X, from exploration of a new routine with her father, she has dismayed a remarkable coolness about the court processes…”;
g)In cross-examination the mother was upfront in saying that there was “no guarantee” that she would abide by court orders and that it depended on what she was doing at the time. Examples of non compliance are:-
i)Failing to provide X for all of the supervised visits at CatholicCare NT;
ii)Failing to arrange for Y to attend any of the supervised visits;
iii)Relocating to (omitted) despite orders in existence for supervised time by the father with both children. The mother admits relocating without speaking to her lawyer or informing the maternal grandmother of her intention to do so;
iv)Not informing the father of the relocation with the father only being informed due to her non attendance at the contact centre and the subsequent court application. In cross-examination the mother’s comment was that she didn’t think it was important to contact the father as Y was not his child;
v)Failing to provide the father with an address or telephone number for (omitted);
vi)Failing to bring Y to the family report interviews;
vii)Despite the father trying to facilitate time with the children, the mother failed to make X available to spend time with the father when in Darwin for the family report interviews, and thwarting his attempts to see Y by not bringing her to Darwin;
h)The mother has no intention of X establishing a relationship with the father or building on the bond that already exists with Y, as illustrated by the following:-
i)Whilst giving lip service to the concept of creating the bond between X and the father as illustrated during the report process for the Advice to Court where the mother speaks of the father building a “rapport” with X and “she would facilitate it as best as she could” and speaking of “fast tracking” this bonding, the reality is that her actions of not abiding by court orders, of relocating and of excluding the father indicate a deeper more sinister intention of cutting the father out of these children’s lives;
ii)Her failing to bring Y to the family report interviews speaks volumes as to the extent the mother is prepared to go in her manipulation of the situation to suit her purposes. The family report writer observes at [56] of the family report that “Withholding Y, in defiance of court orders (maintaining it was for Y’s best emotional interests) would also fit into such “fast-tracking” scenario, since attempting to weaken their established bond quickly through lack of contact would underpin her (and Mr Baggott’s to a seemingly limited extent) desire to forestall Y having an ongoing relationship with Mr Radcliffe.”;
iii)History illustrates the mother’s complete disregard of a father’s role in the life of the children with her refusing Mr Baggott any time with Y, inviting him back into the picture only when she saw it as beneficial to her in removing the father from Y’s life. Mr Baggott spoke as to the difficulties in dealing with the mother at [44] of the family report stating “…..he had spent a long time attempting to contact her in an effort to establish regular time with Y, only to be rebuffed until the court matter arose.”;
i)The mother is also dismissive of the importance of the father’s extended family to both X and Y. Having observed both the mother and the paternal grandmother in the witness box I accept that their relationship is toxic, fuelled by similar domineering personalities and unmovable indignation that they are right in the views that they hold;
j)But putting aside their own adult issues, I find that there was insufficient evidence to support the mother’s submission that Y was not accepted in the family unit by the paternal grandmother;
k)I further dismiss the mother’s concern as raised with the report writer for the Advice to Court that it would not be “emotionally appropriate from Mr Radcliffe to have unsupervised time with X initially, believing he would take X to his extended family and essentially “pass” her around without actually building his own bond with her appropriately.”;
l)I accept that the father’s intentions in these proceedings are to build and develop a relationship with X and to nurture the existing relationship with Y, who he views as his step-daughter, and that the role of the extended family will be an appropriate one, relying on their support for the children, and having their own relationships as grandparents;
m)I have no faith in the mother standing by her word that she will ensure time with the father occurs if the children are permitted to remain in (omitted).
n)I find the mother generally to be a dishonest and unreliable witness. Her demeanour in the witness box was aggressive, disrespectful and almost bullying in nature. I agree with the father’s counsels summation that the mother was “rude, contemptuous and sarcastic” throughout the proceedings;
o)The mother feels no remorse for the choices she has made including the blatant lie to CatholicCare NT on 22 January 2012 that X would not be attending as she was ill when in fact the mother had left Darwin and was in (omitted). The mother showed no understanding as to why it is wrong to breach court orders such as not taking Y to the family report interviews;
p)It would be beneficial for the children to be in close proximity to the father, so if required, he can step in to care for the children, should the mother be unable to do so. The evidence points to three incidents where the mother’s capacity to care for the children has been compromised, where Y was left to wander alone, where the mother slapped Y and dragged her by the arm in front of the paternal grandmother, which was the subject of an unsubstantiated child welfare investigation and where late last year the mother voluntarily placed Y into care for three days as she was not coping with her. Should similar situations occur in the future, then the father and his extended family can provide the support needed which will be in the children’s best interests;
q)I have a grave concern that the mother will continue to defy court orders and be obstructive in allowing the father an opportunity to create and maintain close relationships with the children. If this continues, then it needs to continue close to the father, so that if necessary a change in live with arrangements can be considered by the court;
r)Whilst the mother is not required to show compelling reasons for relocation, I agree with the family report writer’s observations at [57] of the family report that “on the face of it, her unilateral relocation does not seem to have serious merit.” The mother had accommodation, a job which she describes as a “job of a lifetime” both of which she threw in to live in a small town where employment will be difficult;
s)The maternal grandmother in her evidence made it very clear that she will support the mother no matter where she is living, and in addition to that support the mother has a network of people she knows in Darwin including other family members and the fathers of her two children;
t)A return to Darwin will enable Mr Baggott’s relationship with Y to nurture and grow.
If relocation is not in the children’s best interests, is it reasonably practical to expect the mother to return to Darwin?
The mother argues that there are three hindrances preventing her from returning to Darwin:-
a)The mother cannot afford to return or live in Darwin;
b)A return to Darwin will impact on her mental health;
c)A return to Darwin will impact negatively on the children.
Mother returning to live in Darwin
The mother submits that she does not have the funds to return with the children to Darwin, and if she was to return, there is nowhere for her to live, that she has no employment and no family to rely upon.
The father admits that he financially cannot afford to assist her or the children in her return.
Conclusion
I find that it is reasonably practical and that the mother has the ability to return with the children to Darwin for the following reasons:-
a)When previously living in Darwin the mother through funds received from her employment, together with government benefits and child support from both fathers, was able financially to support the children living in rental accommodation;
b)The mother chose to forfeit her bond and leave her employment when the snap decision was made to relocate to (omitted) in January 2012;
c)The mother since January 2012 has had little financial commitment living with the maternal grandmother;
d)The mother was able to find the funds to fly to Darwin with X for the family report interviews;
e)The mother has the financial ability to fund the existing court action;
f)The maternal grandmother states that she does not have the ability to financially assist with the return, which is not supported by her ability to fly back within days of leaving Darwin, at the request of the mother;
g)Further the maternal grandmother owns a house in the Darwin area which is currently being rented to the mother’s sister. Whilst I accept that the house will be crowded if the mother and the children were to live there permanently, it does provide temporary accommodation for the mother whilst she re-houses herself and finds employment upon her return to Darwin;
h)The mother submits that her ability to obtain fulltime employment will be impacted by the necessity to attend family therapy sessions. There is no evidence before the court to support this submission and I give it no weight;
i)The mother is confident about her ability to gain employment and made comment to the family report writer at [40] of the family report that her previous boss was “missing her greatly”. In cross-examination the mother boasted that “It wouldn’t be hard for me to obtain work in Darwin as I know Darwin and a number of businesses in Darwin.” I find that the mother will have no difficulty in obtaining employment upon her return to Darwin;
j)The mother owns a rental property in Victoria and in the absence of any evidence to support her submission that there is no equity in the property, I find that it may be an option for the raising of monies to assist in the relocation;
k)The mother has demonstrated her capacity in the past to obtain a loan to assist her financially.
The mother’s mental health
Some four weeks after relocation to (omitted) the mother attended upon an Adult and Child Psychologist, Ms L.
After four visits the psychologist prepared a report which was before the court for the hearing.
Ms L appeared by telephone and was cross-examined.
In the report in response to the question as the impact on Ms Sayer’s emotional/psychological well being in the event that the mother was to return to Darwin with the children, the psychologist responded “I am on the opinion Ms Sayer’s emotional and psychological wellbeing would significantly deteriorate in the event that she had to return to Darwin. Given she is currently experiencing symptoms consistent with depression and anxiety, as her stressors increase it is likely her mental health would suffer and exacerbate her depressive symptoms. This would then have a negative impact on her children’s emotional and psychological wellbeing as they depend on their mother to provide them with a safe and emotionally supportive environment to nurture their social emotional and psychological wellbeing.”
As to the impact on her parenting capacity if required to return to Darwin the psychologist commented “I am of the opinion her mental health would deteriorate and this would have a significant impact upon her ability to parent her children. Prior to her move to Queensland Ms Sayer was feeling isolated, extremely stressed and felt she was not able to cope with the parenting of her children…”
Whilst I have no concerns as to Ms L’s qualifications, I struggle to give significant weight to the report for the following reasons:-
a)Whilst I understand that a doctor’s referral was required there was delay in the mother seeking assistance for what she describes as an “overwhelming” situation which required her to leave immediately from Darwin;
b)The mother only saw the psychologist on four occasions leading up to the report, and I agree with the family report writer’s observations that a total of four hours of consultation by a psychologist is at “the very shortest end of the time scale to explore mental health status” of the mother;
c)The purpose for seeking out help from a psychologist is not clearly stated in the report;
d)In her affidavit of March 2012 the mother at [73] deposes that “I sought assistance from a psychologist…to help me deal with my mood and my ability to cope.” Her ability to “cope” however does not feature as a predominant reason for seeking professional help, and to the contrary the psychologist states in her report that “Ms Sayer was coping” and referred to her demonstrating a “calm response to stressors.”;
e)The psychologist report makes no reference to sourcing any medical notes of the mother in respect to her depression, nor did the psychologist engage in any conversation with the mother’s former health professionals;
f)Neither father has been spoken to by the psychologist;
g)Whilst the mother spoke at length to the report writer at [39] and [40] of the family report “that her major part of her argument for relocation” was to escape the paternal grandmother’s “apparently destructive influence” and at that “no reasonable person….could expect to cope under the pressures she had been subjected to” by the father’s family and that this “appeared to be explanatory of her paramount need for the January move to (omitted) instead of waiting for the court process to unfurl”, none of these issues appear in the psychologist report;
h)The reason reported in the psychologist report for her move to (omitted) was her need to be near the maternal grandmother who provides support and how they share a close relationship.
I find that the obtaining of the report has been nothing more than an attempt by the mother to not only bolster her case for relocation but to justify why relocation occurred in breach of court orders, and that the attempt has failed.
There is no other evidence before the court to support that the mother has mental health issues apart from being stressed and at times in a depressive state, which is not uncommon in persons who have separated and coping with the time restraints of raising small children and working.
I further give weight of the family report writer’s observations in cross-examination that the mother presented as “self assured and confident” and gave no indication of suffering “frailty” in her mental health or of suffering any disorders.
I find on the evidence before the court I am unable to make any finding as to the impact of a return to Darwin on her mental health, as mental health issues have not been established.
The impact on the children
Having said that though, I accept that the order for the return to Darwin will be distressing and that as noted by the family report writer at [60] of the family report could be “emotionally wrenching” for both the children and the mother.
The family report writer warns that “The probable negative impact on her would almost certainly be transferred directly onto the children who would be in some cognitive and emotional turmoil over the changes” and notes that “..the mother’s probably immense anger at the court and Mr Radcliffe would be extremely difficult for her to shield appropriately from the children.”
The family report writer during cross-examination speculated that a return to Darwin might result in the children becoming withdrawn and attention-seeking and there may be language digression, but it was impossible to predict the true impact.
However both the family report writer and the psychologist do not see the situation, should the children be ordered to return to Darwin, as being insurmountable.
The psychologist recommends “psychological and medical intervention” for the mother and “family therapy” for the mother and the children.
The family report writer also recommends family therapy, initially for the mother, with the father and Mr Baggott to be included at the therapist discretion.
In the consent orders the mother agreed to undertake family therapy.
Conclusion
I find that whilst it will create some initial difficulties for the mother, that it is reasonably practical for the mother to return the children to Darwin and live in Darwin as:-
a)The mother can rely on her mother and sister to provide support for her emotionally and on a practical level once she returns to Darwin;
b)The mother has the ability to obtain employment and find housing;
c)That with the assistance of family therapy this will provide the mother with the tools needed to remain in Darwin and provide the children with emotional support;
d)That her previous concerns as to lack of support for the children in Darwin are in part alleviated by:-
i)The current involvement of Mr Baggott in Y’s life;
ii)The anticipated involvement of the father with the children;
iii)Court orders whereby the mother is to call on the father and his extended family in the event that she requires assistance or time out from the children.
If relocation is permitted and the children remain in (omitted), what time is the father to spend with the children?
As a finding has been made that the children are to be returned to Darwin, I need not address this issue.
If the children are returned to Darwin, what time is the father to spend with the children and should that time include Y?
Before addressing the time to occur, the issue of the inclusion of Y must be addressed.
The father’s time with Y
I find that it is more than just coincidental timing that the mother sought to involve Mr Baggott in Y’s life just after proceedings were commenced. As observed by the family report writer at [36] of the family report “There appeared to be a possible measure of thoughtful strategising by Ms Sayer in starting up Y’s relationship with Mr Baggott around late August 2011 after years of apparently blocking it, well after her final separation from Mr Radcliffe and just a few weeks after his initiating application for time with both children….”
Even Mr Baggott was surprised as to the mother’s change of heart explaining to the family report writer at [44] of the family report that “He could not explain why the mother had not permitted time between him and Y until last year, except to comment that it must have been something “Ms Sayer” had in her head which had since changed.”
As indicated previously I find the mother to be manipulative and selfish putting her needs first and foremost.
The ploy of enlisting and favouring one father over the other has failed.
I give no weight to Mr Baggott’s expressed view to the report writer and in his affidavit that he does not think that it is in Y’s best interest to spend time with the father.
I give no weight to the mother’s excuse that as Y never asked for the father then she must not be interested in spending time with him.
I give no weight to the mother’s defiant position that there is no bond between the father and Y.
I give no weight to the mother’s position that as he is not the biological father and as she is not of his “blood” then he has no right to pursue time with Y.
I give no weight to the submission that time by the father with Y will impose on time with Mr Baggott for two reasons:-
a)There is no structured time for Y to spend with Mr Baggott with the extent of the arrangements being for telephone calls only;
b)The father is aware that should the children return to Darwin and arrangements are put in place for Mr Baggott to spend regular time with Y that he will need to respect that time and adapt his arrangements accordingly.
As to the concern by the mother and Mr Baggott that Y may be confused by the situation if the child was spending time with Mr Baggott and the father I respect and adopt the opinion of the report writer that Y will not suffer confusion. As captured at [63] of the family report “As to emotional confusion, she is more likely to suffer from it by having her established relationship with Mr Radcliffe arbitrarily turned off by the mother.”
I give weight to the report writer’s observations again at [63] that Y “has a filial bond with Mr Radcliffe, so it is not unreasonable for her to continue building it now…”
Lastly the children are close. The family report writer sees it as beneficial for Y who has a bond with the father to accompany her little sister to the visits.
Conclusion
I find that it is in the best interest of Y that she spend time with the father on a regular basis, provided that any set arrangements for Y to spend time with Mr Baggott is given precedent.
What time should the father spend with the children?
As to the time the father is to spend with the children, the mother is insisting on time initially being supervised, and over time for this to become unsupervised with a review of the time when X turns three in September 2013.
The father would like time to be unsupervised with a review to take place in March 2013.
There is also a dispute as to the extent of the unsupervised time.
Conclusion
Although the father has seen very little of X it is not disputed that she recognises the father, although she has no understanding that he is her father.
Further the family report writer is not concerned as to Y’s re-introduction to the father as they are bonded.
The family report writer recommends that whilst the mother is undergoing family therapy, there is no need for supervision to continue.
I therefore find that the initial time between the father and X, with Y to accompany X need not be supervised.
As to the frequency the mother is seeking once a week, alternating between Wednesday and Saturday where as the father is seeking twice a week on the Wednesday and the Saturday.
I find that whilst frequency is desirable for such young children that every Saturday would be not be in the children’s best interests as the children have the right to weekend time with the mother as well as the father.
I find that alternate Saturdays are a suitable arrangement.
As to the time on Sundays the orders reflect an increase in the spend with periods to occur over time.
As the Wednesday time is time when the children are normally in day-care, then time can occur each Wednesday as per the hours as agreed upon between the parties.
Orders have also been made for special days, bearing in mind the need to be mindful of Mr Baggott’s relationship with Y.
In respect to the review, I agree that an increase in time to include overnight is appropriate as X approaches her third birthday.
As there has been a history of difficulties in negotiation and mediation, I find that this discussion needs to take place in June 2013, which will enable the parties enough time to apply to the court in the event that negotiations are unsuccessful.
Is the time the father is to spend with children substantial and significant?
The time the father is to spend with the children is not substantial and significant as required by section 65DAA, but I find that in the circumstances the orders meet the children’s best interests.
As time progresses and bonds are formed, re-formed and maintained then time will increase to enable substantial and significant time between the father and the children.
What last name should the child X have?
X is currently known as X.
Her sister Y is known as Y.
The mother wants X’s name changed to Radcliffe-Sayer, so that the children have similar names.
The father is opposed to this change of name as he is not confident that the mother will use the hyphenated name, opting instead to calling her X as the father maintains that the mother refers to Y as Y and not Y.
The report writer recommends in the Advice to Court that “On the face of it, it might be developmentally sound for X to have Sayer added to her surname similarly to Y.” The report writer continues with the recommendation in the family report.
Conclusion
I find, having applied the criteria as set out in the Full Court decision of Chapman & Palmer (1978) FLC 90-510 that it is in the best interests of X to have her name changed from X to X for the following reasons:-
a)The first criterion is that the welfare of the child is a paramount consideration. This is a young child who has no concept of her name as this point in time and has yet to establish her relationship with the father. X is very close to Y, who has a hyphenated name and who understands the difference between her biological father and the father. I accept the mother’s reasoning that it would be beneficial for both children to have similar names with both the mother and the father’s surname included. I therefore find that a hyphenated name for X that places her in the same position as her sister is in her best interest;
b)The second criterion is the short and long term effect of any change in the child’s name. Because of the X’s age, the effect on the child will be minimal, and for the parents all that is required is the necessity to complete paperwork. I find that in the long term it will be beneficial for the child to have a surname which recognises not only the mother but the father;
c)The third criterion is any confusion of identify which may arise for the child if the child’s name is or isn’t changed. Because of the X’s age, and as the child is currently known by the father’s name, I find that a hyphenated name will not cause any confusion;
d)The fourth criterion is any embarrassment likely to be experienced by the child if the name is different from the parent who had the primary care. As the mother’s name is part of the hyphenated name then there is no cause for embarrassment;
e)The fifth criterion is the effect which any change in surname may have on the relationship between the child and the parent whose name the child bears. As orders are in place for the father to spend regular time with X and as the father’s surname is part of the child’s last name, I find that a hyphenated name will have no impact on the father daughter relationship;
f)The sixth criterion is the effect of frequent or random changes of name. The father submits that the mother does not use the hyphenated name for Y referring to her as Y and not Y. The mother denies that this happens. In the absence of any evidence in support of the father’s allegation, I find that I cannot give weight to this submission.
Additional issues
The first issue is that the mother alleges that the father has been violent. I do not accept that there has been violence for the following reasons:-
a)I find the mother to be untruthful in her evidence in respect to the alleged violence, fluctuating and embellishing to try and boost her position. The affidavit accompanying her application for domestic violence was without basis;
b)The domestic violence application brought by the mother in the Local Court was dismissed by the Magistrate although the mother maintains it was withdrawn by the mother after being informed that it was likely to be unsuccessful.
The second issue is that the mother questions the ability of the father to properly parent the children and in particular X. All the mother could offer in respect to this concern is that his parenting was “not up to scratch.” In the absence of any evidence to support this concern, I give this issue no weight.
The third issue is that whilst the father has no issue with the mother and Mr Baggott having equal shared parental responsibility for Y, he would like to be kept informed as to any decisions made as to major long term issues. Because of the father’s relationship with Y, I find that this is a reasonable and sensible request and the order is therefore included.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of L.Turner FM
Date: 17 April 2012