Schultz and Schultz
[2009] FMCAfam 548
•4 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCHULTZ & SCHULTZ | [2009] FMCAfam 548 |
| FAMILY LAW – Children – relocation – mother wants to relocate with children to Queensland – relocation opposed by father – children’s best interests – meaningful relationship – mother’s psychiatric difficulties and substance abuse – equal shared parental responsibility – equal time – differing views of Family Consultant and psychiatrist. |
| Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA, 65DAA |
| Mulvany & Lane [2009] FamCAFC 76 Morgan & Miles (2007) FLC 93-343 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A; Relocation Approach (2000) FLC 92-035 U v U (2002) 211 CLR 238, (2002) FLC 93-112 Bolitho and Cohen (2005) FLC 93-224 M & S (2007) FLC 93-313 Godfrey & Sanders [2007] FamCA 102 |
| Applicant: | MR SCHULTZ |
| Respondent: | MS SCHULTZ |
| File Number: | MLC 4569 of 2008 |
| Judgment of: | Roberts FM |
| Hearing dates: | 18, 19 & 20 February 2009 |
| Date of Last Submission: | 20 February 2009 |
| Delivered at: | Devonport |
| Delivered on: | 4 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr D McLeod |
| Solicitors for the Applicant: | Heinz and Partners |
| Counsel for the Respondent: | Ms D Brooker |
| Solicitors for the Respondent: | Vicki Sweet Family Law |
ORDERS
That MR SCHULTZ (“the Father”) and MS SCHULTZ (“the Mother”) have equal shared parental responsibility for [X] born in 2002 and [Y] born in 2003 (“the children”).
That in the event the Mother is living in the Ballarat area, the children are to live with the Father and the Mother on a week-and-week-about basis with changeovers to occur at 3.30 pm on Friday and the weekly cycle commencing with the children being with the Father for a week from 3.30 pm on Friday 5 June 2009.
That for the purposes of changeovers in accordance with Order No. 2 hereof (other than those occurring at school);
(a)the Mother (or her agent) is to collect the children at the commencement of her time with the children from the Father’s residence; and
(b)the Father (or his agent) is to collect the children from the Mother’s residence at the conclusion of the Mother’s time with the children.
That in the event the Mother relocates to Queensland, the children are to live with the Father and spend time with the Mother as follows;
(a)for each of the gazetted Victorian school term holidays from the first Saturday until the final Saturday;
(b)for the first half of the long summer school holidays in 2009/2010 and each alternate year thereafter;
(c)for the second half of the long summer school holidays in 2010/2011 and each alternate year thereafter; and
(d)at such further or other times as may be agreed.
That for the purposes of Order No. 4 hereof the transport costs of the children and any necessary accompanying person are to be shared on the basis of the Mother booking and paying for the air transport to Queensland at the start of each period and the Father booking and paying for the air transport to return to Victoria at the end of each period.
That the parents be and are hereby restrained from changing the residence of the children to any place outside a thirty kilometre radius from the Ballarat Town Hall without agreement in writing or a Court Order.
That the Mother must attend such drug and/or alcohol counselling as may be recommended by her General Practitioner from time to time.
That the Mother must attend upon her General Practitioner as soon as is practicable for a referral for ongoing psychiatric treatment.
That the Mother is authorized to provide copies of the psychiatric report of Dr J, the Family Report of Mr Matthew Saunders and the Reasons for Judgment in this matter to her General Practitioner and to any psychiatrist that she may attend pursuant to these Orders.
That the Father must forthwith engage with Uniting Care (or other like organization) for the purpose of undergoing child focused parenting counselling.
That the Father is authorized to provide a copy the Family Report of Mr Matthew Saunders to any counsellor that he attends pursuant to Order No. 10 hereof.
That each parent must inform the other parent as soon as practicable of any serious illness or injury which may befall either child.
That each party is to be able to communicate with the children by telephone at any reasonable time when the children are with the other parent.
That each parent must forthwith authorize the children’s medical practitioners and any other treating professional to provide to the other at the other’s request and expense any and all information relating to any medical condition and/or treatment of the children.
That each parent must forthwith authorize the children’s schools to provide to the other at the other’s request and expense all school photographs, reports and notices of school functions including parent/teacher interviews and that that each party is at liberty to attend such functions and interviews.
That each party is to keep the other informed at all times of his or her residential address, and landline and mobile telephone numbers.
IT IS NOTED that publication of this judgment under the pseudonym Schultz & Schultz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4569 of 2008
| MR SCHULTZ |
Applicant
And
| MS SCHULTZ |
Respondent
REASONS FOR JUDGMENT
Applications
In this matter the Court must decide whether two children should continue to spend equal time with each of their parents or live predominantly with only one parent, and whether or not the mother should be allowed to relocate with the children from Victoria to Queensland.
Both parents wish to retain equal shared parental responsibility for the children
The applicant, MR SCHULTZ (“the father”) seeks orders that can be summarised as follows:
a)that if the mother lives outside Victoria, the two children, [X] born in 2000 and [Y] born in 2003 (“the children”) live with him and spend time with MS SCHULTZ (“the mother”) during each of the gazetted Victorian school term holidays from the first Saturday until the final Saturday, and for half of each Victorian long summer school holiday;
b)that if the mother continues to live in Victoria, the children live with each parent on a week and week about basis with changeovers occurring on Fridays;
c)that neither party change the children’s residence to any place outside a radius of 30 kilometres from the Ballarat Town Hall;
d)that the mother continue to attend Drug and alcohol counselling as recommended from lime to lime by her General Practitioner;
e)that the mother attend upon her General Practitioner as soon as is practicable for a referral for psychiatric counselling;
f)that the father forthwith engage with an appropriate organisation for child focused parenting counselling; and
g)various other orders that I do not need to mention at this point.
The mother is seeking orders that will enable her to relocate with the children to Queensland. It is her intention to live in [C], which she says is 20 minutes from where the father of her other two children
(“Mr D”) lives in Maroochydore.
She also seeks orders that:
a)the children live with her;
b)the children spend time with the father:
i)for the entire first and third term school holidays;
ii)for three weeks during the long summer school holidays;
iii)in the event that the father travels to Queensland, upon giving fourteen days notice, for a long weekend up to twice per term;
iv)by telephone twice per week; and
v)as otherwise agreed between the parties.
c)the parties share the cost of travel associated with the father spending time with he children;
d)the father be restrained from denigrating the mother in the presence or hearing of the children; and
e)in the event that the father relocates to Queensland, he be restrained from living within five kilometres of her primary residential address.
Background
The father is nearly 40 years old and the mother is nearly 35 years old. They are the parents of the children.
They parties were married in April 1999. They do not agree whether they lived together before that, however, nothing turns upon that dispute in their evidence
At the time that the parties commenced their relationship, the mother was a practising Jehovah’s Witness and the father was not. However, by the time this matter came before me, the father had become a practising Jehovah’s Witness and the mother had ceased being one and had been “disfellowshipped” by that Church.
The father has a nine year old son, [B], from a previous relationship. The mother has two sons from a subsequent relationship with Mr D (“Mr D”). They are [K], aged 4 years and [Z], aged nearly 2 years.
The parties separated in 2003. The mother then moved to Queensland with the children. A short time later, the father also moved to Queensland. He says that he did so in order to “maintain a close and meaningful relationship with the children”. For a while the parties even owned adjoining blocks of land in Queensland and I am satisfied that both were very involved in the lives of the children, notwithstanding that they entered into consent orders in 2004 in the Magistrates Court at Bundaberg that only provided for the children to spend time with the father each second weekend.
In about September 2005, the mother returned to Victoria, ostensibly to obtain “specialised medical treatment” for [K]’s cleft palate. Shortly thereafter, the father also returned to Victoria. Both parties sold their adjoining blocks of land in Queensland.
In April 2008, the mother told the father that she was moving to Queensland with the children. He filed an urgent application in the Magistrates Court of Victoria at Ballarat in order to prevent her taking the children to Queensland. Orders were made on 7 May 2008 that provided, inter alia, for the children to spend increasing periods of time with the father, culminating in a week and week about arrangement with changeovers to occur each Friday.
On the 11 August 2008 the matter was transferred to this Court. On that day the parties agreed to Orders providing for the mother to take the children to Queensland for four weeks and for the father to ensure that the children would be returned to the mother during their time with him if they requested it.
Evidence
The parties each relied upon several affidavits of their own. The mother also relied upon an affidavit from her mother and an affidavit from a former Alcohol and Drug Supported Accommodation Worker (“the support worker”). All were cross examined.
The mother had initially also sought to rely upon an affidavit by Mr D. However, he could not be contacted to give evidence by telephone so his evidence could not be relied upon.
The Court also had the benefit of a Family Report from a Regulation 7 Family Consultant (“the Family Consultant”). He gave oral evidence and was cross examined.
Further, the parties had each been seen by a Forensic Psychiatrist (“the psychiatrist”) at the request of their respective solicitors. He provided reports which were received into evidence. The psychiatrist also gave oral evidence and was cross examined.
Relevant law
Proceedings for parenting orders are determined in accordance with the provisions of Part VII of the Family Law Act 1975 (“the Act”). The best interests of the child is the court’s paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
The principles underlying those objects are (except when it would be contrary to a child’s best interests):
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In order to decide what is in a child’s best interests the court must consider the matters set out in section 60CC. That section refers to both “primary” and “additional” considerations.
The two “primary considerations” are:
·the benefit to the child of having a meaningful relationship with both parents; and
·the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4].
[4] Subsection 60CC(2)
The court must also take into account those “additional considerations” that are relevant[5].
[5] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. No doubt, that debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case. Indeed, I am fortified in that view by the Judgment of May and Thackray JJ in Mulvany & Lane[6], in which their Honours said:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
[6] [2009] FamCAFC 76
Boland J set out the law in relation to relocation of children very fully in Morgan & Miles[8]. It is worth restating what she said at paragraphs 80 and 81:
[8] (2007) FLC 93-343
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Those “earlier core principles” to which her Honour referred come from decisions such as AMS v AIF; AIF v AMS[9], A v A; Relocation Approach[10] and U v U[11].
[9] (1999) FLC 92-852
[10] (2000) FLC 92-035
[11] (2002) 211 CLR 238, (2002) FLC 93-112
It is not surprising that relocation cases often cause much anguish for the parents and are often difficult for courts to decide. As Professor Patrick Parkinson said in a paper on Relocation:
Relocation cases cause considerable conflict between parents and the nature of long-distance relocation cases is that there is little room for compromise. Those conflicts inevitably have deleterious effects on children. Relocation cases also cause significant financial stress, not only in terms of the cost of litigation but also, if the relocation goes ahead, the costs of travel.[12]
[12] “The realities of relocation: Messages from judicial decisions.” Australian Journal of Family Law - May 2008
The court is bound to do what it considers is in the best interests of the child, and is not bound by either of the parents’ proposals.[13]
[13] See Bolitho and Cohen (2005) FLC 93-224
I propose to consider the evidence in the light of those section 60CC considerations that are relevant.
Primary considerations
The benefit to the children of having meaningful relationships with both parents
In the Outline of Case provided on behalf of the father, it is asserted that the mother’s proposal would prevent the children from having a meaningful relationship with the father. That is not a surprising assertion because relocation cases inevitably cause the parent who is not relocating to be worried that there will be a diminution in his or her relationships with the children. This particular case is no different.
In M & S[14], Dessau J said at paragraph 45:
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful.
[14] (2007) FLC 93-313
In a similar vein, in the relocation case of Godfrey & Sanders[15], Kay J (sitting as the Full Court) said:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[15] [2007] FamCA 102
However, in a recent article[16], Professor Richard Chisholm[17] (a former judge of the Family Court of Australia) was clearly critical of Kay J’s comments as referred to above. He said:
In my view, with respect, this is an unhelpful way of looking at it, and it led the appeal court into error. It suggests that the legislation seeks to ensure that children have a meaningful relationship with parents, but nothing more. This is not so. The Act does not aspire to anything: it speaks of the benefit to the child of a meaningful relationship. Thinking in terms of various grades of relationships can to lead to the mistaken conclusion that the legislative intention is satisfied provided that ultimately the child still has a ‘meaningful relationship’ with the non-relocating parent. Since it is plausible to say that visits every few months, plus electronic communications, can often sustain a ‘meaningful relationship’, this approach would suggest that so long as this minimal threshold is met, the court should routinely permit relocations. In my view that would be an erroneous interpretation, and would deflect the court from the careful analysis that the legislation requires.
What I see as the mistake made in the appeal judgment might have been influenced by the fact that in her comprehensive and admirable trial judgment, her Honour tended to characterise the problem as being whether the children would have a meaningful relationship with the father if the relocation were allowed. This approach created the opportunity for the appeal court to find, rightly or wrongly, that there was ‘no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in such circumstances’, losing sight of the key task of considering, and giving particular importance to, the benefit of that meaningful relationship. [18]
[16] (2008) 22 Australian Journal of Family Law : “The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006”, commencing at page 193
[17] Hon Prof, Faculty of Law, University of Sydney, Visiting Fellow, Australian National University
[18] Footnotes omitted
In my view, the Court needs to balance any benefit to the children of relocation against any reduction in the quality of the relationship with the non-relocating parent.
The mother’s Outline of Case did not address the Primary Considerations in section 60CC, but the mother stated clearly in her oral evidence that the children love their father so I infer that both parents accept that it is in their children’s interests to have a meaningful relationship with the other parent. Having said that, however, they clearly differ in relation to how that is to be achieved, and I will consider that aspect of this matter below.
The need to protect the children from harm from abuse, neglect or family violence
There is no serious allegation of abuse but there was a hint of inappropriate behaviour on the part of the father by his being naked when the girls would climb into bed with him. However, it is to his credit that he realised the inappropriateness of the situation and rectified it when the issue was raised.
There does not appear to be any suggestion that these children are likely to suffer harm from abuse or family violence. However, the question of potential neglect is somewhat different.
The mother has an unfortunate history of psychiatric disorder and substance abuse.
She was cross-examined at length in relation to her alcohol consumption and it became clear to me that she:
·understated her reliance upon alcohol in her affidavit material; and
·concealed the extent of her lapses from her support worker.
To her credit, the mother was generally open and honest when cross-examined directly about her use of alcohol and it is clear that she was consuming alcohol very heavily on a daily basis during a six month period between April and October 2008. She admitted consuming four to six pre-mixed cans of bourbon and cola (Jim Beam) every night, which she conceded was the equivalent of six to nine “standard drinks” of alcohol per night.
It became apparent that there had also been lapses in her abstention subsequent to October 2008. For example, the mother admitted to consuming five such cans on the Monday night before the hearing and to being hung-over the following day. However, she stated that none of her four children were staying with her on that Monday night.
During her cross examination, it was put to the mother that she had been purchasing a six-pack of Jim Beam cans on a daily basis during that six month period. In a display of absolute honesty, she stated that on occasions she purchased ten cans at a time. The mother then conceded that she was binge drinking on a daily basis throughout that six month period.
Although the mother found it difficult to concede that her children’s care could have been compromised as a result of her binge drinking, it is clear to me that she could not possibly have been in a fit state to cope with any unforeseen emergency involving the children while under the influence of such high doses of alcohol. I note that her four children were only aged between one and seven years during that six month period and it is indeed fortunate that no such emergency appears to have arisen.
It was only after persistent cross-examination that the mother conceded that her drinking must have had an impact on the children. However, she claimed not to have noticed any such impact.
When the support worker was made aware of the mother’s admitted level of drinking during her cross-examination, she said that she would have had great concerns about it. She added:
The would have definitely been concerns about her capability as a parent.
Even apart from any risk to the children, one must have concerns for the mother’s health. The health dangers of excessive alcohol consumption are well known and have been increasingly well publicised.[19]
[19] For example, the recommendation for women on the website of Drug & Alcohol Services South Australia is “An average of no more than 2 standard drinks per day. Not more than 4 in any one day. No more than 14 per week.” (That site also confirms that a 375 ml can of Jim Beam and Cola is the equivalent of 1.5 standard drinks.)
It is also quite clear to me that the mother must have been using a significant proportion of her Centrelink income for the purchase of alcohol. Indeed, it was her evidence that she was not able to save any money when she was drinking. It is not easy to provide for any family's daily needs from a Centrelink income so I must assume that some of the children's needs were being neglected when the mother was obtaining such quantities of alcohol on a daily basis.
The psychiatrist said in his report about the mother that she is likely to have Borderline Personality Disorder and Dysthymic Disorder “which at times has reached the intensity of a Major Depressive Disorder”. He also said that there is a past history of Poly Substance Abuse.
The psychiatrist went on to say
Ms Schultz would benefit from psychiatric treatment including consistent talking therapy to contain the likely personality disorder and antidepressant medication to ease the dysphoria associated with the Dysthymic Disorder and hopefully prevent another Major Depressive Episode. She also needs to abstain from alcohol and continue with drug and alcohol education and rehabilitation.
He said further that her psychiatric treatment should continue for at least five years.
Given that the mother had a lapse in abstention from alcohol consumption less than two days before the hearing started, the Court cannot be confident that she is currently able to control her alcohol consumption. However, this does not mean that she does not have the ability to overcome that problem. In this regard, I accept her evidence that she abstained totally for a period of ten years (which unfortunately ended in 2006), and she must be congratulated for that.
I also note that the mother was able to give up drug consumption “cold turkey” when she was 21 years old, for which she must also be congratulated.
Having said that, I conclude that [X]’s significant unexplained absences from school are more likely to be a consequence of the mother’s drinking than of any other factor.
Relevant additional considerations
The children’s views
In my view, at their ages, the children are too young to have a view that is relevant to the issues that I must decide.
The children’s relationships with the parents and other people
The Family Consultant concluded that the children’s primary attachment is to their mother, and that conclusion was important to his recommendation that there be a reduction in the amount of time that the children spend with the father. (However, the psychiatrist disagreed quite strongly with that recommendation and I shall refer to that further below.)
The Family Consultant reported as follows:
[Y] was observed to seek out physical affection from her father and spontaneously chose to sit on his lap during the play session. [X] chose to sit in her chair adjacent to her father, and was generally quiet and reserved in her interactions with her father. The conversation that she had with her father was predominantly about the play and impressed as measured rather than spontaneous and relaxed in contrast to her younger sister, [Y], who spoke spontaneously and in a light hearted fashion, often smiling while involved in the activities across the session. [X] had a more serious demeanor and although interacted with her father in her play did not show a great deal of affection towards him. Mr Schultz related to both his children in a kind and unintrusive manner with [Y] being relatively responsive to his playfulness evident intermittently in his play with the children.
He went on to report that other professionals to whom he spoke “also stated that neither girl said bad things about their father and all believed the girls loved their father irrespective of their stronger alignment with their mother”.
The mother stated on more than one occasion that the girls love their father so I conclude that the children have warm and loving relation ships with both parents.
To her credit, the mother confirmed that the children have good relationships with their half-brother, [B]. Indeed, the mother herself clearly misses the good relationship that she once had with [B]. Because he is a regular part of the father’s household, I accept that the children have a normal and loving relationship with [B].
Similarly, I accept that the children have normal and loving relationships with their half-siblings in the mother’s household, [K] and [Z].
The strength of the relationship between the children and the mother’s new partner is unknown, because the mother did not provide any affidavit from him, despite the fact that she had been in a relationship with him for eight months at the time of the trial and he had apparently decided to accompany the mother in her proposed move to Queensland.
Mr D does not claim to have any sort of relationship with the children who are the subject of these proceedings and because he was not available to give evidence when required, I cannot place much weight upon his evidence, in any event.
The maternal grandmother said in her affidavit:
My husband and I have a very close relationship with the children. In addition to the time we spend with the children in Queensland, we speak to them by phone on between 1-3 occasions per week. [X] calls us regularly. We have undertaken many activities with the children and particularly enjoy swimming with them.
While I accept that she has a normal grandmotherly relationship with the children, that is to be viewed in the current context that they live a great distance apart and only see each other infrequently.
The willingness and ability of the parents to facilitate and encourage the children’s relationships with the other parent
I note that the father is quite willing to continue a shared care arrangement if the mother remains in Victoria. That suggests to me that he appreciates the need of the children to have a close relationship with both parents.
On the other hand I cannot be confident that the mother shares his appreciation of the children's need to have close relationships with both parents. The psychiatrist commented that “she did not appear insightful as to the importance of the children having ongoing contact and an ongoing relationship with their father”.
She certainly gave me the impression that she did not really appreciate that the children need meaningful relationships with their father, nor did she appreciate that their removal to Queensland could result in serious diminutions in the quality of those relationships. In some respects, I find this strange because the mother clearly conceded that the father is her “backstop” when it comes to her needing assistance with their care.
The likely effect of any change in the children’s circumstances
There is no doubt in my mind that a move to Queensland as proposed by the mother would result in significant diminutions in the quality of the relationships that the children currently have with their father. I say this for a number of reasons:
a)The mother proposes that the parties share the costs of the children’s travel between Queensland and Victoria three times per year and the father’s travel to Queensland up to six more times per year. However, I conclude that they will have great difficulty funding those trips. The mother was cross-examined at length in relation to her finances and it became very clear that, even with subsidised accommodation, she has found it very difficult to save much money. In four months, she had only been able to save $600. That is hardly surprising because she is in receipt of Centrelink benefits. Similarly, the father is only employed part-time currently and is not a high income earner. Even if he was working full-time, he would not be a high income earner. Given that the children will need to be accompanied on flights between Brisbane and Melbourne for some time, the costs of travel between those cities will be additionally expensive for some years yet.
b)As I have suggested above, I have real concerns about the mother's willingness to facilitate and encourage the children's relationships with their father.
I therefore conclude that a move to Queensland as proposed by the mother would result in a significant diminution in the relationships between children and their father.
I note that the Family Consultant did not recommend that the mother moved to Queensland to children. He said:
It is acknowledged that Ms Schultz still needs to work on achieving greater personal stability. Another interstate relocation for her and her children would risk the loss of the current supports in place both to her and her children and is therefore thought unwise. Furthermore both girls have moved substantially, and have only been at their current school for less than a year. Another interstate move would further perpetuate the transience of their life-situation. Ms Schultz’s reliance on a new place to escape old problems is indeed viewed as a risky and possibly superficial approach to resolving her personal problems. It is also acknowledged that it may be an advantage for her two young boys to live closer to their biological father so as to see him on a regular basis. The difficulty of Ms Schultz’s predicament however is that this would mean [X] and [Y] would be disadvantaged by being unable to see their father regularly if Ms Schultz relocates with her children. As it is clear that both girls have a loving relationship with their father irrespective of the possible difficulties they experience in their relationship with him it is believed in [X] and [Y]’s best interest to have ongoing regular time with him.
However, the Family Consultant recommended that there be a reduction in the amount of time children spend with their father and that they only spend four nights per fortnight with him during school terms. That recommendation was clearly based upon a perception that the children have closer relationships with the mother than with the father.
That recommendation was quite clearly opposed by the psychiatrist and he based his opposition to that recommendation on the need for stability and security in the children's lives. I infer that he believes that a reduction in the time spent the father could result in greater insecurity and instability. When he was questioned by counsel for the mother, the psychiatrist said:
…what I actually did mean was that (the father’s) relatively stable personality provides some security, if you like, for there to be an ongoing regular person in the children's lives, should another downturn occur where (the mother) develops a major depressive episode or attempts suicide or goes into an alcohol abuse or even drug abuse situation again, and he compensates in some way, so that at least there we have a person who is there on a regular basis looking after the children half the time and presumably would be able to pick up the slack should something go wrong.
When the psychiatrist was asked whether he agreed with the Family Consultant's recommendation that the children return to the full-time care of their mother, his response was:
I disagree completely with that opinion expressed.
When I consider the opposing opinions of the Family Consultant and the psychiatrist, I find the psychiatrist's opinion to be more persuasive.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
This consideration is dealt with above.
The capacity of the parents to provide for the children’s needs
In some respects this consideration is also dealt with above.
It is quite clear that the mother's capacity to provide for the children's needs is significantly reduced when she binges on alcohol. I do not need to say any more about that, other than to say that I accept the genuineness of her desire to abstain and hope that she takes advantage of the support that is available to her.
Notwithstanding this, the mother has shown that she has a good understanding of the children's emotional needs. In this regard, she realised that they needed counselling assistance and she made arrangements for that. Further, the reports obtained via the Family Consultant from the mother's doctor and the children's school principal show the mother to be generally loving, caring and nurturing of her children.
Despite her desire to get away from the father, the mother occasionally showed some rare insights into the need for the children to have both parents available to them. For example, when she was asked by the father’s counsel what was really in the children’s best interests, she said:
… I still believe, despite all of the negatives, we can pull from everywhere, under the circumstances that we are in, I can parent those children better if [Mr Schultz] is there to contact them as a backstop….
In my view, that was an admission that both she and the children need the father to be very involved in the children’s lives.
The mother clearly acknowledged that the father appreciates the children's educational needs. In this regard, when she was asked whether the father was equally responsible for the older child's unexplained school absences, she said:
No, [Mr Schultz] was very assertive on [X] must go to school.
The attitudes of the parents to the children and to parental responsibilities
In many respects this consideration overlaps with the one above, but I have absolutely no doubt that both parties are committed, loving and caring parents. By making the best use of the support facilities that are available to them, I am sure that they will succeed in being successful at the very difficult task of parenting all their children.
In relation to support, the psychiatrist has recommended that the mother have psychiatric assistance for at least five years and the Family Consultant also recommended that she receive psychiatric assistance. Further, the Family Consultant recommended that the father receive child focused parent work for an extended period of time to assist him with his understanding of the children’s needs and experiences. In this regard he recommended that the father contact Uniting Care in Ballarat.
I strongly support those recommendations.
Any family violence and family violence orders
Although the mother has had some form of intervention order in the past, it is no longer in force and it is clear to me that it related more to the mother’s annoyance at the father’s proximity than to any violence.
Should the parents share parental responsibility equally?
Both parties are seeking orders for equal shared parental responsibility and I consider that to be appropriate.
Section 61DA provides a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.
In my view, that presumption should apply in this matter.
Should relocation be permitted?
Although the mother says that she would have support in Queensland, the only people who had provided affidavits for her in relation to that were her mother and Mr D. In relation to those two supporters, I make the following comments:
·In her affidavit the maternal grandmother says that she will travel to see the mother “approximately every 2 weeks” (which is a journey of some three hours from Bundaberg to [C]) and that she and her husband will spend “approximately one week per month” with the mother and her children. I can only be somewhat sceptical about that statement of intention in light of the maternal grandmother's oral evidence that she only speaks to her daughter by telephone approximately once per month.
·Mr D could not even be contacted by telephone to provide evidence in support of the mother. Further, it was the mother’s own evidence that he does not pay any child support for her other two children (because “he works for cash”), he has lost his licence for a drink-driving offence and he gets “blotto” every Friday night. Consequently, I think it is very safe to assume that he will provide the mother with very little support or assistance, if any at all.
It is clear to me that both expert witnesses, the Family Consultant and the psychiatrist, are opposed to the mother relocating to Queensland children, and given what I have said above, it should be clear that I am also opposed to permitting the children’s relocation. It is quite clear to me that it would not be in their best interests.
On the second day of the hearing I asked the mother whether she would be moving to Queensland if I did not allow the children to go. Her response then was to say that she would be going without the children. To his credit, counsel for the father suggested that she may like to give further thought to that over the luncheon adjournment. However, it was not until the third day of the hearing (after the mother had considered the matter overnight) that the mother stated that she would not be living in Queensland without the children, but she did say that she would be travelling to Queensland “for a break”. It is because of the uncertainty in the mother's position that I will need to make orders that provide for both eventualities.
Should the children’s time with the parents be equal?
Sub-section 65DAA(1) provides that if a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
The expert witnesses have differing views about how the children's time should be shared. The Family Consultant is of the view that children should live predominantly with their mother in Ballarat; whereas the psychiatrist believes that they should spend equal time with each parent in Ballarat.
I am persuaded that the psychiatrist's opinion should be preferred and that it is in the children's best interests for the regime of equal time with the parents to continue. Consequently, I will make orders that are predominantly in terms of those sought by the father.
I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
[7] Paragraph 76
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