Secco and Reid
[2013] FCCA 2160
•13 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SECCO & REID | [2013] FCCA 2160 |
| Catchwords: FAMILY LAW – Children – relocation of child to (country omitted) for 3 years with mother and sister consequent upon mother’s posting – impact upon child of separation from father – impact upon child of separation from mother and sister – weighing up of competing applications. |
| Legislation: Family Law Act 1975 |
| Hepburn and Noble [2010] FamCAFC 111 Heath v Hemming (No 2) [2011] FamCA 749 |
| Applicant: | MS SECCO |
| Respondent: | MR REID |
| File Number: | CAC 1283 of 2008 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 18, 19 & 20 November 2013 |
| Date of Last Submission: | 20 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ridge |
| Solicitors for the Applicant: | Barker & Barker |
| Counsel for the Respondent: | Ms Curran |
| Solicitors for the Respondent: | Evans Family Lawyers |
ORDERS
Orders 4 to 14 inclusive of the Orders dated 16 December 2009 in relation to the child X born (omitted) 2005 be suspended for a period of 3 years commencing 27 January 2014.
The mother shall have sole parental responsibility for the child pending his return to live in Australia.
The mother shall inform the father of the school the child attends and all medical treatments performed on the child.
The mother be permitted to take the child out of the Commonwealth of Australia from 27 January 2014 for the duration of her posting to (country omitted).
From 27 January 2014 until 28 February 2017, the child spend time with the father in Australia as follows:
(a)For all of the child’s school term holiday periods being periods of approximately 2 weeks in each of April and December/January;
(b)For 4 weeks in the northern hemisphere Summer school holidays;
(c)For such times as are agreed during any period when the mother returns on leave to Australia;
(d)In (country omitted) at any reasonable time that the father notifies the mother in advance being 28 days and the mother will vacate her home and permit the father to live in her home in (country omitted) for no longer than 14 days unless otherwise agreed; and
(e)At any other time and place as agreed.
The father communicate with the child by telephone, Skype, email and written communications at any reasonable time.
Until the child reaches age 10 the mother is to ensure he is accompanied by his sister Y or another responsible adult for his flight from (country omitted) to Australia.
In the event the mother is unable to comply with Order 7 she is to pay:
(a)The father’s return flight economy class tickets to the transit destination for the final leg of the child’s journey from (country omitted) to Australia; and
(b)The father’s return flight economy class tickets to the transit destination being the first leg of the child’s return flight to (country omitted).
Upon the child reaching age 10 the mother may allow the child to travel as an unaccompanied minor internationally.
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 Secco & Reid is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1283 of 2008
| MS SECCO |
Applicant
And
| MR REID |
Respondent
REASONS FOR JUDGMENT
The application filed by the mother seeks permission to relocate with her son, X, born (omitted) 2005, to (country omitted) for a three-year period consequent upon the mother’s posting to (country omitted) with her employer (omitted).
In her initial application the mother’s sought to take X to (country omitted) for 3 years which has now changed to a posting to (country omitted). Initially, the father objected to the child being taken overseas for any period of time and said if the mother went to (country omitted) X would live with him in Canberra.
During the hearing the father changed his position and said X should stay with him for 18 months and then go to (country omitted) to live with his mother and sister Y for 18 months or even vice versa. The father put this alternate position after some cross-examination and a concession or realisation by him that there were advantages for X in living with his mother and sister in (country omitted) for the next 3 years.
I accept that the details of the (country omitted) posting only came to the father’s attention some few weeks ago as this is when the mother was advised of her successful application for a posting to (country omitted). However, as the evidence unfolded, the father has known since he and the mother commenced their relationship in 2007, that she was seeking an overseas posting at some point of time in her career.
The mother has made it clear she will move to (country omitted) with Y, X’s sister in January 2014 to commence her duties in February 2014 even if the Court does not permit her to take X with her.
Matters of relocation are extremely difficult matters for parents to deal with. One parent will always be distressed by the decision made as they will not spend time with their child that they are used to spending.
There cannot continue to be a regime of time where the father spends significant and substantial time with X if X is in (country omitted) unless the father moves to (country omitted). I accept the father cannot move to (country omitted) for 3 years.
In the alternative if X remains in Canberra, the mother will no longer have his primary care and she will not be living with her son and daughter and X and Y will not be living with each other as has always been the case.
However it is not primarily the impact upon the parents of a proposed relocation that is the important focus of my decision rather the impact upon X of the competing proposals. The impact upon the parent is relevant insofar as it has an impact upon their capacity to parent a child. The paramount consideration for me is the impact of the available options upon a child and after considering those options and applying the law making an order that is in his best interests in an imperfect world. Thus the impact of the proposals per se upon the parents from my decision has its relevance in any resulting impact upon their parenting capacities or their relationship with their child.
Both X’s parents are capable, hardworking upstanding citizens who although saddened by a decision contrary to their wishes, will not fall apart or wreak havoc upon their child’s emotional and psychological health. X’s needs have always been the priority for each of his parents even though they may disagree what those needs are at times.
Evidence
The evidence for the parties was as follows.
For the mother.
Her affidavits filed 2 April 2013, 8 October 2013 and 11 November 2013.
For the father.
His affidavits filed 3 May 2013 and 28 October 2013.
A family report prepared by Ms D was marked Court Exhibit 1.
I granted the father leave to issue a subpoena on short notice to Y’s father, Mr J, to give evidence and produce some limited documents. He, both parents and Ms D were cross-examined.
Exhibits
The mother’s exhibits.
Mother’s Exhibit 1, Minute of orders sought.
The Father’s exhibits. The father’s exhibits are voluminous.
Father’s Exhibit 1, Minute of orders sought.
Father’s Exhibit 2, a Department of Community Services ACT report made by persons unknown at ARK of concerns of the risk of harm to the child from the mother’s behaviour at changeover. This report was dated 2 April 2011 and says in part :
I am writing to you out of concern for the mental health of the child.
The report from ARK was read by the departmental officers who, on 30 December 2010 reported:
Having read the report from ARK, it raises concerns that the behaviours and actions of both parents are likely to impact on X. Need to discuss with both parents.
I accept the mother may have behaved poorly at (omitted) Centre, may have been unduly combative and difficult to deal with and there may have been concerns, but the decision to make a report to the welfare authorities was simply out of all proportion to the risk to the child. This was a waste of public money, caused the mother to believe the father had made the report when he had not, and was a reaction well out of proportion to the concerns for X of poor parental behaviour at changeover. This reporting fuelled the mistrust and hostility between the parents
Father’s Exhibit 3, a letter from ARK dated 11 November 2010 to both parents raising concerns of the parental conflict. X was aged 3 at this time.
Matters haven’t improved for X;
Both parents need to encourage X to have a good relationship with the other. They both take control of making the current care arrangements happen and prepare him for it. Changeovers happen in a neutral place –
The report commented on what a delightful child X was. This description of X continues to be true.
The mother did not receive this letter and I accept her evidence. She received a letter dated 5 November 2010 in relation to a complaint she made about (omitted) Centre. I will not take this matter much further.
Father’s Exhibit 4. An AVO made by consent and without admission by the mother on her undertakings in respect of she and the father dated 13 October 2009. It is clear that the mother has, in the past, behaved in a rude, offensive and aggressive manner towards the father, and I accept that evidence from the father. The mother now admits to this poor behaviour in her affidavit material. The mother is someone who reacts quickly and rapidly when she believes she is being threatened. The mother is a formidable personality.
Father’s Exhibit 5, a series of emails between the parties starting 5 July 2012. These are at the time when the mother requested the father care for X while she went on a short-term assignment to (country omitted) as the father did not agree to X accompanying her. On 5 July 2012 the father writes:
As I have repeatedly requested, please provide me with your proposed care arrangements and I will consider. If you do not respond by 2.30 pm tomorrow –
I will be picking X up from school and he will be with me for the first week of the school holidays.
The mother responds on 6 July 2013 as she was then in possession of her itinerary and was able to advise the father of the proposal. This series of emails do not cause me any concern.
Father’s Exhibit 6, the mother’s applications for overseas transfers in her employment. The mother‘s first application is dated June 2007. These applications speak in glowing terms of the mother as an employee, of her capacity to work in a team and of her value to the organisation.
The father was taken aback when he heard of the mother’s capacity to work in a team. I accept he has not seen that side of her behaviour. There was no evidence in this file to support the allegation raised by the father and set out in detail in the disappointing affidavit of Ms C, the fathers’ support witness, which affidavit was not ultimately read, that the mother had been banned from certain floors of her employer’s offices and was not regarded a team member. The Departmental records make no such reference to these matters and are to the contrary.
Father’s Exhibit 7, a series of emails commencing 28 May 2009.
Father’s Exhibit 8, X’s school reports.
Father’s Exhibit 9, a series of emails between the parents going back to 2009.
Father’s Exhibit 10, a series of emails regarding the 9 May 2012 incident where the child did not receive a merit certificate he was due to be awarded as his mother had unilaterally changed his school, a decision which was shortly reversed.
Father’s Exhibit 11, AFP incident report of 2005 between the mother and Y’s father Mr J.
Father’s Exhibit 12, further email exchanges commencing 17 June 2011 including a series of e-mails initially marked MFI 1.
Father’s Exhibit 13, the father’s contract of employment which is due to expire at the end of this month.
Father’s Exhibit 14, unaccompanied children on international flight airlines policy from Qantas.
Father’s Exhibit 15, an email from the mother to Y’s father, Mr J in 2013 in relation to Y travelling to (country omitted) with her.
Short Chronology
The mother is a (occupation omitted) working for (employer admitted) and was in that employment when the parties met in 2004.
The father is a self-employed (omitted).
The parties commenced a de facto relationship in about November 2005 and separated in January 2008.
Their son was born on (omitted) 2005. X has spent the majority of his life living between separated parents.
X has a sister, Y, born (omitted) 1999. Y is the child of the mother’s former marriage with Mr J.
Y and X have lived together all their life.
The parties separated on 26 January 2008.
Final parenting orders were made on 3 March 2009 for 5 nights with the father and 9 with the mother.
16 December 2009, the orders are amended for school holiday periods.
13 December 2012, the mother advises the father of a posting to (country omitted) for 3 years and her desire to take X with her.
31 January 2013, the father advises he does not consent.
2 April 2013, the mother files her application to take X to (country omitted).
The Family report is released 8 July 2013.
The mother is advised her posting to (country omitted) will not proceed but (country omitted) and (country omitted) are available on 13 September 2013.
The mother is advised her posting to (country omitted) is successful on 8 November 2013.
The Competing Proposals
The mother proposes that she be permitted to relocate with X to (country omitted), commencing February 2014. That he spend three periods of time with his father at minimum in Australia for the northern hemisphere long school holiday period which is in June/July/August for two other shorter periods during the year and that his father come to (country omitted) whenever he can. The mother said in cross-examination she would vacate her home in order for the father to spend time with X in (country omitted), to minimise the cost and expense for him of such travel.
To effect these orders, X will need to fly on a long haul international flight. The mother says he will be accompanied on the first leg of the trip to a transit destination in (country omitted) most likely by his sister Y. The mother says Y will accompany X to Sydney for the whole of 2014 as she too will be spending time with her father who lives in Canberra.
From October 2014 Y’s father will be living and working in (country omitted) with his family and Y may not then accompany X at all or on the Australian leg as her father may wish to share a holiday with her and his family in (country omitted).
The transit by X to Australia unaccompanied presents a problem for the father if he is to travel as an unaccompanied minor without his sister given he is would be only aged 9 in 2014. By June 2015 X will be 10.
The father says the child should remain living with him in Australia for the duration of the mother’s posting or as an alternative for at least for 18 months and then live in (country omitted) for 18 months or vice versa. That X spend at least two periods of one month with his mother in (country omitted) and at other times as agreed and the mother spend time with him in Australia whenever she is able.
One of the significant consequences of the father’s application is that X would be separated from his mother and sister, people he has lived with all his life.
Secondly, given the unusual circumstance of Y’s father also being overseas from October 2014, it will be very difficult for X and Y to spend time together let alone holiday time unless X is living with his mother.
The parents have an acrimonious relationship. They each acknowledge this to be the case. Orders were made by consent when the child was two and a half years of age for a five night/nine night care regime in the mother’s favour. As I understand the social science on attachment theory and appropriate care arrangements for young children, this was far too much time for a young child to be separated from his mother, who was his primary carer. It is clear the orders did not suit X as his father agreed, the child would become distressed at times and would be returned to his mother which was the right thing to do.
Both the parents attended the (omitted) Centre to improve their communication. The father said he found the centre assisted him greatly in parenting his son and in particular in dealing with what he finds is the mother’s difficult behaviour. I accept he finds the mothers behaviours difficult. The mother acknowledges in her affidavits filed, and in particular her last affidavit dated 11 November 2013 and confirmed in cross-examination, that she has not behaved well in the past and she has not.
It is clear she has behaved in a very angry and aggressive manner at times. The mother has been placed on an AVO in relation to behaviours between her and the father. The mother behaved poorly in front of Y with Y’s father in 2005.
The series of emails the parties have tendered are of an acrimonious, disrespectful, discourteous nature more so from the mother than the father, however, confirm a disrespect for each other as parents of their son and I will refer to them later. They formed the bulk of the tenders by the father.
Each believe that when the other seeks to vary a time in an order or when the other parent does not agree to a variation sought, that there is a hidden agenda or sinister motive and each is trying to “get back” at the other. This is simply not correct. In life one does at times need to be flexible and give the other parent flexibility.
The consequence of this inflexible attitude which is demonstrated more by the father than the mother is that X’s needs have at times been lost by his parents in their acrimonious, bitter dispute. Why X cannot spend time with maternal relatives and then have make up time with his father giving him the best of both worlds is beyond my understanding, however, that has occurred when the father would not agree to vary a weekend.
The significant mistrust between the parents was not helped when an employee at the ARK programme, run by (omitted) Centre, made a complaint to the Department of Community Services that the mother’s behaviour at changeover with the child and her behaviour towards the father was having a negative impact upon the child. Although this may have been correct, it was not of sufficient concern to make a report to care authorities in 2009.
However, it was reported and the mother, until these Court proceedings, believed it was the father who was the reporter. He was blameless. Due to the way these matters are dealt with, the mother did not find out who made the report and since about 2009 she has believed the father made a report to the Department of Human Services in Canberra that she was abusing the child. This incident has fuelled the fire for the parents.
The mother alleges the father has a poor view and attitude towards her as a mother and she is correct. His affidavit is testament to this and the running down of the mother commences at paragraph 94.
The father complains of the mother trying to vary dates and times of collecting this young two and a half year old in circumstances where she had another child and father to deal with, was working and supporting her children and carrying out her obligations as a sole parent to the best of her ability. Nowhere in the father’s affidavit does he acknowledge the difficulties the mother may have faced or how he may have been able to assist her to juggle the competing demands she was faced with when the father only had himself to organise.
He blames the mother when the child has said “go away, I want to stay with Mummy” in 2009 in circumstances where the care regime was inappropriate for his developmental needs. He complains of changes to the swimming classes and times, asserts the mother has prevented him playing Auskick or cricket; had his tonsils and adenoids removed without his consent; enrolled him in (omitted) Pre-school at times which did not suit the father, of her screaming and yelling at Y and X; of the children being frightened of her, ringing X repeatedly outside “her” time as prescribed by the orders.
I accept the mother’s complaint on this inflexible attitude displayed by the father. He rarely agrees to any variation of the Court ordered time with the child, despite the request to attend family events and the like being perfectly reasonable. This lack of understanding is a significant deficit in the father’s insight into the needs of his son and is at odds with his other significant strengths as a parent. It also engenders poor behaviour in the mother.
The mother says in her affidavit filed 11 November 2013 – paragraph 51:
As can be seen by both of Mr Reid’s affidavits, there continues to be a high level of conflict between him and me. After six years of conflict, I have resigned myself to the fact that it is unlikely to improve. I wish it was different. I am not proud of the way I have conducted myself some years ago, when it came to my interaction with Mr Reid and I accept in hindsight, I could have managed much better. I am supportive of X’s relationship with his Dad; try to continue to improve it for X’s sake. I treat him with respect in front of Y and X. I invite him to call X when X has exciting news to share.
He comes into my home if he needs to. There are numerous phone calls and Skype calls. My life has changed considerably. I am happier than I was five to 10 years ago. I have made positive changes including exercising. The children are close and happy in each other’s company. I have a great job and a wonderful circle of supportive friends. The children and I are close. I acknowledge X’s relationship with his father will be different when we are living in (country omitted), but I am also confident it can flourish in a different way. X loves his Dad. This will not change if X accompanies me on his posting to (country omitted).
The father’s affidavit made no such concessions. He painted the mother in a very poor light. He told Ms D that he had little trust in the mother’s abilities to care for the child.
The mother was clearly angry in 2009. The incident in 2009 when the father attended to collect X, as was provided for in the orders; the child did not want to go, he ran away from his father and from the father’s e-mail the mother did little to encourage him to go to his father. This was distressing for the father and he became emotional when recalling this event.
X’s behaviour in 2009 is not surprising to the Court. The parents were in high conflict at this time. Changeovers were emotionally abusive for X from both his mother’s high handed demands that the father collect the child from her home and not as the father properly wished from pre-school or another neutral place and the father’s lack of capacity to deal with his son’s turmoil.
Further I have formed the view that the time X was spending with his father was too long a separation from his mother and X’s behaviour is all the more understandable. Neither parent understood this at the time and blamed each other for their son’s behaviour when it was a combination of many factors.
The mother was writing rude and offensive Skype communications in the Father’s Exhibit 7 in 2011, telling the father:
Perhaps you should consider your child’s body temperature rather than your own. He says he is always freezing at your house. You know nothing, given that you have never taken a day off to care for either of them.
The father responds writes on 9 May 2011:
Do not attend my property. I do not consent to you attending my property at all with or without X.
It is also true the mother placed X in a preschool on the one day that the father wanted to have with the child, a Friday. The parents could not agree on this, the mother made a unilateral decision that did not suit the father but he accepted that decision nonetheless. The father says in an email dated 20 May 2009:
My motivation for X attending preschool on Fridays is clear and unambiguous. The only way I will change my decision is if he attends crèche on Fridays and I pick him up from there. You are well aware that during the negotiation process for settlement an extremely significant issue I raised was I pick up X from crèche.
The father wished to collect the child from a neutral place and not from the mother to avoid the escalating conflict between them. This was a proper approach for the father to take however the mother also had Fridays off, she did not want X to attend preschool on Friday and that meant she and the father came into contact at changeover. This made matters more difficult for X.
In 2009 emails from the mother to the father:
So he learns to be a couch potato like his father. You’re a sad pathetic man who blames everyone but himself for his lonely pathetic life. X will recognise the fact in the years to come as he grows into a man. I will always be the greater influence in his life
On 12 March 2010:
I’m sorry that X has you for a father.
An email from the mother to the father, 16 February 2010:
I hope you choke on your money arsehole.
In 2011 and 2012 the mother was in a relationship with Mr D. The mother is no longer in that relationship. In e-mails to the father, the mother said Mr D was a more appropriate parent for the child than the father. This was disrespectful of the father and does not speak well of her attitude towards the importance of the father in the child’s life in June 2011. The mother wrote many rude and offensive e-mails to the father telling him Mr D was a real man not the poor excuse he was.
The mother wrote to the father on 9 May 2012, a mere 12 months ago regarding his indignation at her conduct:
Oh and fuck off, Mr Reid, you’re a pathetic self-absorbed excuse for a father. Thank Christ for Mr D and his positive influence on X’s life.
You don’t deserve the title of father, you don’t even know what it means to be a dad.
As part of the series of e-mails in Father’s Exhibit 12 commencing 27 June 2012, a mere 15 months ago the mother writes:
You are a pathetic excuse for a man. Good luck with your deranged predictions. In the meantime pull your ugly head in and leave us alone.
The father writes:
The time will come when your children will want little or nothing to do with you. Their reaction will be hostile to say the least. You will blame everyone except the person solely responsible – you. This is very extremely easy to foresee yet you do nothing to prevent it.
27 June 2012, the mother responds:
You’re a lunatic. You need help. I’m a great mother. My children are living proof. Go attack someone else from your past. Who gives a fuck, Mr Reid, because I sure as hell don’t. X sees me the majority of time. I will always be the greater influence in his life. Amen to that.
The father responds:
Well at least your abusive and deflective response was predictable. Your actions continue to cause X distress and your reaction to that when confronted is hostility. At least you are consistent.
The mother responds:
I will never ask X to call you again. I will never suggest he speak with you, share his day or news with you. He never asks to speak with you, it’s hardly surprising.
There are many emails where the parents are able to discuss matters but there are many rude emails and in the main the offensive emails emanate from the mother.
From Father’s Exhibit 12, on 20 June 2011 the father wrote:
I do not consent to you picking up X on Friday 1 July.
The mother’s response:
Let me be very clear, I will collect on Friday 1 July as I have advised you. He will not miss another family birthday just because I made the mistake of having an affair with such a miserable excuse for a man.
The mother behaved poorly in 2011 and in 2012 at many levels. Her unilateral decision to change X’s school and cause him not to receive a merit award to which he was entitled was not child focused and inappropriate and simply caused more bad blood between her and the father and heightened anxiety for X for no good reason.
However despite her rude and offensive e-mails X’s father is extremely important to X and is a large part of and influence in his life. The reality here is that fortunately the mother’s words do not match her conduct, for if the mother did not promote X’s relationship with his father no matter how hard his father tried, it would not be the strong, secure, and supportive and beneficial relationship it is for X today.
The mother has behaved in this firebrand and inappropriate manner with Y’s father, Mr J, from police record. In 2005 when Y was 8, Y observed her parents arguing and her mother screaming at her father.
Even if the father shows scant regard for and has little consideration for the mother’s position in being a sole parent with two children to care for and making arrangements for Y, X and herself with two different fathers, the mother’s conduct is not justified.
However to the father’s credit in his oral evidence, the father presented differently to this presentation before Ms D. He agreed X loves his Mum. He said X, his mum and sister are very close and:
She is charming person. She has great leadership skills and she presents well and I hope X takes those traits from her. She cares well for X. She would never put him in harm’s way.
Thus, although the father’s affidavit is somewhat distressing concerning his opinion of the mother and the emails between the parties positively diabolical, these parents can and do realise that each are good parents, each care deeply for their son and neither would put him in harm’s way.
This must be the case as X has an excellent relationship with each of his parents. He would not have that close and supportive relationship with his parents if his mother did not support the relationship with his father and if his father did not support the relationship with his mother and sister. The father had not conceded this to be so at the family report interview or in his affidavit evidence but made the concession or perhaps came to the realisation in oral evidence that the mother was supportive of his relationship with his son because of the strength of that relationship.
Thus although, from an adult perspective and a reading of the parties’ affidavits and emails between them, they do not treat each other well, they have been able to, in large measure, protect X from the negative consequences of that behaviour. I accept the father’s position that the mother’s e-mails to him are a disgrace. If the mother could temper her “temper” things may be different for her.
However, this protective capacity is diminishing. Perhaps due to the application to relocate first to (country omitted) and now (country omitted). Perhaps due to X’s age and maturity. This is apparent from Ms D’s report marked Court Exhibit 1.
Both children appeared to be cautious during the assessment -
At paragraph 28.
and X’s wishes are: “they all would be friends and would never fight because I don’t want them to fight anymore. Usually when they fight, I don’t see them – to me, they just fight when I’m at school. I feel sad.”
X said he was scared of never seeing his other parent again. When this fear was explored by Ms D, it came out he meant that he would not see the parent he was not with. That is the same fear the father has and expressed in the witness box. The father said he believed, and confirmed in his affidavit that his relationship with his son would be severed, he would not see his son if his mother took him to (country omitted). He did not believe the mother would facilitate any order the Court put in place as he realises that an order can be put in place, but parties must make it work.
This is not a fear the mother has expressed if she goes to (country omitted) and X stays in Australia. Only the father has expressed this fear and I am concerned that despite his father’s best efforts, X has picked up on his father’s fears. I accept X is under pressure which is emanating unintentionally from his parents and this litigation is not assisting.
The mother left X with the father in 2012 for significant periods of time, all up about nine weeks. This is despite her saying to Ms D that she had concerns of the father’s care of the child.
The mother went to (country omitted) for work for 6 weeks and then on a holiday. The father did not agree to X going to (country omitted) and it was a short term assignment. The father cared for Y for some of this time as well. X was asked how it had been when he was with his father while his Mum was in (country omitted) he replied:
I missed Mummy a lot. I was sad. I didn’t see her for a while.
He was asked how it would be if he was in (country omitted) – would he miss his father? And he replied:
Yes, I will miss him.
X described his time with his father as fun. The relationship with the mother and the father was observed by Ms D to be close, attached and appropriate.
The father said in his affidavit and to Ms D he believed the mother is only making these requests for overseas posting to distance him from his son. That cannot be correct and is an immature and petulant reaction and is unsupported on the evidence.
The father agreed in his oral evidence, he has known since he met the mother that she wanted overseas postings and it is clear from her evidence and the subpoenaed material from (employer omitted), that in order to promote oneself in (employer omitted), one needs to make application for overseas postings and the mother is desirous of maximising her income earning potential and her advancement in the (employer omitted). The mother’s actions in this regard are not to do with the father and son’s relationship but are her own properly held desires for advancement and promotion.
The mother’s success in achieving this posting has nothing to do with removing the child from the father. It may have a consequence for the parents, X and Y and it would behove the father to understand the difference between intention and consequence.
X told Ms D that the person he would always rely upon was his sister. A consequence of the father’s application would be to remove that one person from his life for three years being the time of mother’s posting to (country omitted).
I accept the mother’s evidence that after the three year posting and upon her return to Australia, it would be two years before she could apply for or be successful in another overseas posting. At that time X would be 13 and the arrangements for X’s care at that time would likely be very different and may well reflect the arrangements for Y’s care which is as she said to Ms D:
I am planning on doing what I want.
I do not accept any assertion by either parent that they are neglectful of the children or there is a risk of harm to the children in either parent’s care given their prior conduct in leaving children with each other for lengthy periods of time. This attitude they both expressed to Ms D is their mistrust of each other and lack of respect.
These are good, committed parents, well capable of caring for the children and they have done an excellent job in parenting this child.
On the evidence I find that the mother was the primary carer of the child from his birth and he was breastfed for 16 months and is a committed, devoted and competent parent.
I find that when the father returned home from work he assisted the mother in the care of the child and he is a committed, devoted and competent parent.
The allegations of neglect and poor conduct raised have tended to cloud the main issue. The main issue, although difficult to decide, is clear – does X go to (country omitted) with his sister and his mother and spend as much time as he can with his father in (country omitted) or in Australia, having regard to the significant cost and difficulty that will attend, or does he remain in Australia with his father and be separated from his mother and sister if not for 3 years at least 18 months and spend as much time as he can in (country omitted) with his mother, or his mother in Australia with him, having regard to the significant cost and difficulties that will attend.
Ms D’s report made no recommendations and was not particularly helpful on the issues of the impact of change on X. The impact of change was not discussed with him nor was there much insight shown of how to best maintain the benefit for X of a meaningful relationship with his dad if X was in (country omitted), now (country omitted), or with his mother if X was in Australia and his mother in (country omitted), now (country omitted). There was little exploration of the impact on X of being separated from his mother, the person he has always and primarily lived with.
The mother has been X’s primary carer. The father’s affidavit supports this. The mother has made the arrangements for schools and pre-schools he attends, doctor’s appointments, operations and inoculations. It is clear that that mother does the running in this regard. The father has been as involved as he has been able to be and has a strong commitment to spending quality time with his son even when the mother’s behaviour made this difficult for him.
I accept the mother’s evidence in her affidavit of 11 November 2013 as to where she proposes to live in (country omitted) and its suitability. Despite the father’s affidavit complaining of the arrangements and not accepting the mother’s evidence, in cross-examination by Mr Ridge, the father has no difficulty with the apartment the mother is to rent in (country omitted) or the school she has preliminarily made enquires of being the International British School in (country omitted).
The school she proposes that X and Y attend is appropriate and boasts a high standard of education with some similar courses to that which X undertakes at his present school at (omitted), namely (course omitted).
The mother’s proposals for a nanny or housekeeper for before and after school care are appropriate and acceptable. The father did not believe the mother’s evidence that the children would not be left alone or that a nanny or housekeeper would always be available. I saw no evidence to doubt that the mother will do this, whether in (country omitted) or in Australia it is much the same.
I accept that the mother’s income will be doubled with this new position and that such a posting is an integral part of the advancement in her career that she is seeking. The father’s view that the mother’s intention in accepting this position was to minimise X’s time with his father is not only incorrect, it bespeaks of a somewhat immature and self absorbed attitude by the father.
However the mother’s conduct towards the father has been offensive on many occasions when he did not agree to vary a date or time for example. The mother must look to her own behaviour and shoulder part of the responsibility for their poor relationship today.
The mother was firm in her oral evidence; she and Y’s father had agreed to Y living in (country omitted) with her.
Father’s Exhibit 15, from the mother to Y’s father of last night:
I understand Y is definitely coming with me. I don’t know what the problem is. I’ve already said I don’t expect you to pay child support while she is in (country omitted), it’s also a given in the proposal for reunion trips. I’m actually pretty upset that you are now being called as a witness just because you wouldn’t put your consent in writing. You know full well X and Y want to stay with me wherever that may be. I have only been subpoenaed at the request of the magistrate to clarify your position because Mr Reid’s barrister kept inferring Y was not in fact accompanying me , based on information from you to Mr Reid. It would have been much cheaper if you had sent your consent through. Then you wouldn’t have had to appear at all.
That e-mail does not support the mother’s firm evidence.
Mr J’s evidence regarding the (country omitted) trip was interesting. He said he had not given his consent for Y to travel with her mother to (country omitted). He had received the request yet had not given his consent in stark contrast to the mother’s evidence that it was clear Y was going with her and that there was no issue about this between she and Y’s father. I accept that there is a significant difference in what Mr J said and what the mother would have the Court believe. However, having said that, I find that it is more likely than not if not inevitable that Y will be accompanying her mother to (country omitted) for the following.
Y said to Ms D when the relocation was to (country omitted):
I’m planning on doing what I want.
She was asked if there were difficulties with her dad in the past:
Not that much anymore because I can say what I want. I don’t see why I need to be part of this.
Thirdly, Mr J is on a posting to (country omitted) as part of his work with the (employer omitted) from October 2014 and will not be living in Australia from that time and her mother may not consent to Y living in (country omitted).
Fourthly, Y has always lived with her mother and has not lived with her father.
Fifthly, despite his knowledge of this event, Mr J has not brought an application to prevent this occurring or for Y to live with him.
Sixthly, there is some support for the mother’s statement that Mr J has not yet given his consent for Y to travel as the mother has not been able to sort out the suspension of child support and the arrears of support he currently owes which came from Mr J’s lips. Mr J’s current arrears of child support for Y are some $7,000.
I had difficulty in accepting Mr J’s evidence. Unlike the mother and father who were open and frank, Mr J was difficult to read and I do not accept that his attempts to portray himself as the victim of a ratty and difficult mother is how it is.
The mother has been highly successful in ensuring her children have strong relationships with their fathers, which is most impressive for Y as her father spends much time overseas in pursuit of his career advancement. He was in (country omitted) for many years and still Y spent time with him.
Y and X have excellent, strong and attached relationships with each of their fathers. Y said to Ms D at paragraph 31:
X, he is close to his mum. I think they are similar in personality. They have the same sense of humour: “I think I’m more like my dad.” Y wanted to go to (country omitted) and added, “I will see my dad for the holidays.”
I find it is more probable than not that in 2014 Y’s mum will be in (country omitted); Y’s dad in (country omitted) and that Y will be living with her mother despite the unhelpful evidence of her father on this issue. Y expressed she would be very upset if X did not go with them to (country omitted), now (country omitted) and that her mother would be particularly upset, as would X, because they are very close. Y said X and her mother are very similar people and she more like her Dad.
This is the scenario for Y. Y will live in (country omitted) with her mother and spend holidays with her father as she has always done, no doubt in some exotic and wonderful locations. Mr J agreed if Y is in (country omitted) he and Y may meet up in (country omitted) at times with his family for holidays.
Y has always lived with her mother and there is not one jot of evidence to support any finding that due to the mother’s posting in (country omitted), this stability will change for Y even though I accept this eventuality is not at this moment certain and the mother gilded the lily of she and Mr J’s “agreement” regarding Y.
The Law
The competing proposals are clear. For the mother, X lives with her and his sister in (country omitted) for the next 3 years.
For the father, X lives with him in Canberra for the next 3 years or he spends 18 months in Canberra and 18 months in (country omitted) or the reverse.
There are options generated by these proposals as well which I will discuss later.
In the Full Court’s decision in Hepburn and Noble[1] they held that A and A: Re-location Approach[2] is no longer good law after the 2006 amendments to the Family Law Act.
[1] [2010] FamCAFC 111.
[2] (2000) FLC 93-035.
In Cales & Cales[3] their Honours said at page 15 paragraph 65.
[3] [2010] FamCAFC 237.
The effect of the change introduced by the amending Act were explained in Goode & Goode as follows.
“In our view the Act makes it clear that when a parenting order is sought whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of a child that the child’s parents have equal shared parental responsibility as expressed in s. 61DA. subject to the qualifications in subsection (2), (3) and (4).”
The finding that such a presumption is in a child’s best interest necessarily leads to a consideration under section 65DAA of whether a child should spend equal time with or significant and substantial time with parent. This legislative intent and pathway when determining these proposals has been subject to a decision in the High Court of MRR & GR[4].
[4] [2010] HCA 4.
In Cales their Honours went on to discuss the principles arising out of MRR & GR concluding at paragraph 140 that:
In MRR the High Court has now made it clear that in making an order in a child’s best interests section 65DAA requires consideration of both “best interests” and “reasonably practicable” when considering making either an equal time or significant and substantial time orders.
The High Court went on to say that:
Section 65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.
The Court said it was clear that both questions need to be answered when reading paragraph (c) which refers back to the two preceding questions posed in paragraphs (a) and (b) namely whether it is both in the child’s best interests and reasonably practicable for such an order to be made. Further this two fold approach is a statutory condition that must be fulfilled before the Court has the power to make a parenting order of that kind.
Where, as here, there is a prospect of an international relocation, the High Court held in MRR & GR that section 65DAA(1) is concerned with the reality of the situation of the parents and the child and not whether it is desirable that there be equal time spent by the child and each parent, and sic I read, significant and substantial time.
The presumption in section 61DA(1) of equal shared parental responsibility is not determinative of the questions arising under section 65DAA(1) being the nature of the time to be spent.
The Court said section 65DAA(1)(b) requires a practical assessment of whether equal-time parenting is feasible or sic significant and substantial time is feasible.
The principles in a relocation matter were set out by Federal Magistrate Brewster, as he then was, in his first instance judgment in Taylor & Barker[5] and were confirmed by the Full Court at the Appeal and are:
a)The best interests of the children are the paramount consideration but not the sole consideration. This principle was confirmed by Justice Boland sitting as a single Appeal Judge in Morgan & Miles[6].
b)Secondly, and consistent with Justice Kirby’s decision in AIMS v AIF[7] freedom of movement is a factor in these decisions.
c)An applicant for orders permitting relocation need not show compelling reasons before such an order will be made. Indeed neither party bears an onus: that is to say neither parent has the onus to establish that a change in the current contact arrangements or a continuation of those arrangements will best promote the interests of a child.
d)The reasons for a parent wishing to relocate with a child are only one of the matters to be considered and it should not be dealt with as a separate issue. This principle was approved in Taylor & Barker.
e)The Judge must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages insofar as the best interests of the child are concerned.
f)The Judge is to indicate which matters are of greater weight and explain how the matters balance out.
[5] [2007] FamCA 1246.
[6] (2007) FLC 93-343.
[7] (1999) CLR 160.
The starting point is whether to rebut the presumption of equal shared parental responsibility. Although the parents do not get on nor communicate effectively neither sought I rebut the presumption
However, as I posed to the parties during the hearing if the mother is in (country omitted) with X or the father in Canberra with X, this responsibility cannot be shared. The time and distance that would separate the parents would of itself make sharing of parental responsibility not practical or realistic. That the parent with whom X lives for the next 3 years have sole parental responsibility was the most sensible approach.
If X lives in (country omitted) with his mother, she will have sole parental responsibility and will be required to notify the father of the school he attends, medical attention and the like, forthwith upon those decisions being made by her with the father being permitted to contact those authorities and professions to find out the prognosis of his child.
Similarly if X lives in Australia with his father, the reverse will apply.
I need not consider an order for equal or significant and substantial time having rebutted the presumption and neither order is possible or realistic given the parties will be living thousands of kilometres apart, the mother in (country omitted) and the father in Australia.
Thus, the real question is, with which parent will X live as the parents have effectively agreed upon the time he will spend with either of them being as much as is possible.
In the determination of where X is to live, I must follow the legislative pathway set out in Goode v Goode[8].
[8] [2006] FamCA 1346
In a decision of His Honour Justice Faulks DCJ in Khoury & Mills[9] His Honour was hearing a matter where a mother was wishing to relocate children in circumstances of extreme violence and mental health issues exhibited by the father. Happily for X, no such considerations apply in his life.
[9] [2013] FamCA 300.
At paragraph 33 and 34 His Honour said:
The pathway for making a determination in relocation matters has been explored in MRR & GR, Muldoon & Carlyle, and Sayer & Radcliffe & Anor. The case law makes it clear the principles to be followed in determining the best parenting orders in a relocation matter are:
a. The question of whether a parent should be permitted to relocate should not be the focus of the court’s inquiry as to the parenting orders that would be in the children’s best interests.
b. The court must consider each proposal in the context of what is in the best interests of the children by reference to section 60CC factors.
c. If an order is made for equal shared parental responsibility taking account of section 60CC and 61DA the court must consider whether equal or substantial and significant time are in the children’s best interest based on the section 60CC findings.
d. If an order for whether equal or substantial and significant time is in the children’s best interests whether such an order is reasonably practicable taking into account the matters set out in 65DAA(5).
Looking at the Act Section 60B of the Act sets out that the objects of part VII are to ensure the best interests of children are met and ensure children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children and protecting children from physical or psychological harm from being subjected to 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 concerned the care, welfare and development of their children.
Section 60CA determines that the court must, in deciding whether to make a particular order in relation to a child, regard the best interests of the child as the paramount consideration.
Section 65D gives the court the power to make a parenting order and section 64B defines the terms and identifies the matter that may be dealt with by a parenting order.
Goode v Goode[10] sets out the statutory pathway I must follow when determining what order to make in a child’s best interests. There is a distinct overlapping when considering all the factors under section 60CC (2) & (3) and 65DAA.
[10] [2006] FamCA 1346
In Heath v Hemming[11] the Court reviewed many authorities and determined:
Upon my review of the authorities, it seems to me that the following is a logical and practical approach by the Court and one which meets the statutory imperatives in a parenting case, including cases involving a proposed relocation:
(a) Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those put forward.
[11] (No 2) [2011] FamCA 749.
Secondly:
Be informed by the objects expressed in section 60B(1) and the principles underlying those objects in section 60B(2) and where relevant – and undertake consideration of and make findings about each of the best-interest considerations set out in section 60CC having regard to the prospective proposals. It may be preferable to look at the additional considerations under section 60CC(3) before a consideration about the finding of the primary considerations.
Thirdly:
Consideration of and findings about the section 60CC considerations will result in findings one way or the other about abuse, family violence within the meaning of those terms, as defined in section 4 of the Act.
Fourthly:
In determining best interests, the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties, touching upon each of the relevant matters. After consideration of all those matters, the Court should indicate to which of those matters greater significance is attached and how all of the matters balance see Sigley & Evor (2011) 44 Fam LR 439.
Fifthly:
Determine in accordance with section 61DA whether or not the presumption of equal shared parental responsibility applies having regard to findings as to abuse or family violence and findings on best interest.
Sixthly:
If, as a result, the section 61DA presumption is found not to apply or is rebutted, the considerations and the mandatory considerations under section 65DAA are not triggered. If the presumption applies the mandatory provisions of section 65DAA are triggered and the Court must consider whether an order for equal time or significant substantial time is in the child’s best interests and is reasonably practicable.
The question of parental capacity to implement arrangements and to communicate and resolve difficulties is at the fore in this matter given the distance the child will be from either parent. As the High Court highlighted in paragraph 15 of its judgment in MRR & GR, section 65DAA(1) is concerned with the reality of the situation of the parents and the child.
I am mindful of Justice Kay’s decision in Godfrey & Sanders[12]:
Even if the move results in a diminution of quality of the relationship what the legislation aspires to is to promote a meaningful relationship and not an optimal relationship.
[12] [2007] FamCA 102.
Looking now at the factors under section 60CC (2) and (3) of the Act. X benefits from a meaningful relationship with each of his mother and his father.
Whether his mother lives in (country omitted) and he lives with her, or he lives in Australia with his father, he will still benefit from those meaningful relationships. The distance between X and either parent will change his relationship, however, it will still be meaningful despite the distance.
I find that X’s closest emotional attachment is to his mother, she having been his primary carer. She is the parent with whom he has always lived and he has lived with her for the majority of his time in his eight years.
Ms D confirmed the mother sets appropriate parenting boundaries for her children. This is not so clear with the father. I, with the mother, am a little concerned that the father allows X to somewhat dictate the time and activities he and his father engage in and that the father’s attachment to his son may err on the side of indulgence with him for the following:
a)The father gave evidence that he no longer plays cricket because X, to use his words, did not like - “him spending time doing that when he was with him”. The father became emotional when talking of forgoing trip to Lords due to his decision not to have cricket interfere with he and X’s time
b)Y referred Ms D to a meltdown X had in 2012 to when they were living with X’s father and the mother was overseas. Y said she thought it was because she was sharing his time with his dad and she did not like to intrude on X’s time with his dad. Y said “Last year, it seemed X would be upset. He seemed angry the whole time I was there” (living with X’s dad.) “I went last week and it was fine. Before it was not bad, but now he seems closer to his father. X is happy to go.”
c)Y identifies that X is jealous of his father’s time and wants his father all to himself.
d)X still sleeps in the father’s bed. That is inappropriate for a child of eight and the mother had raised this properly and repeatedly with the father. The concern is that if the father is unable to have his son sleep independently on most occasions, either he is unable to set boundaries for his son or, as Ms D said, this activity is fulfilling his father’s emotional need. If that be the case, then this bespeaks of a possibly unhealthy relationship and attachment beginning to form going into the future.
Sleeping with a parent may be acceptable at age five but X is eight and needs to learn what the boundaries are and his father must set and enforce these boundaries. His father may have “given in” to X which is understandable at one level. However, Ms D said everyone needs to know they cannot have everything they want all the time including X.
I find on the evidence that the mother’s parenting style is more boundary focused and that she has a superior capacity in this regard to the father at this time.
X is not at harm or risk of harm in either parent’s care. The poor relationship between his parents and their lack of respect for each other as his parents is the greatest risk he faces.
X’s wishes. X is torn. His father became emotional when he spoke of that as did his mother. He loves both his mum and dad and wants to spend maximum time with them. His wishes at age eight are not matters I will necessarily take into account although I accept he would be very excited at the prospect of living in (country omitted). I agree with his father he may not realise the consequences of so living being the significant gaps in time he spends with his dad in the flesh. However if his father had given him permission to live in (country omitted) he would not be as torn as he is at present and be better able to deal with such an event. The mother has given X permission to live in Canberra with his father as she will be travelling to (country omitted) even if X is not with her
I do not see on the evidence that his mother has put the same pressure on X as has his dad has, perhaps unwittingly due to the emotional trauma his father is experiencing at the consequence of him living in (country omitted).
I am not satisfied his father can contemplate this outcome whereas his mother has contemplated living in (country omitted) without X. Although this is not her preference, she will make this as easy as she can for X if that be the outcome. I am not so certain of the father’s capacity in this regard, however, he is a most devoted and caring parent.
I accept X will suffer some emotional trauma in being separated from either parent in the short term and he may be devastated in being separated from either of them. I accept X will be devastated in being separated from his sister with whom he has always lived and in not sharing this experience with her contemporaneously. This experience is something that if shared will be a strong connection and treasured memory for Y and X throughout their lives.
Parent’s insight. Both parents show commendable insight into the needs of X educationally, emotionally and physically. The father has some limitations in setting appropriate boundaries for his son either because he does not want to cavil with his son by setting boundaries or because it fulfils his own emotional need. Perhaps there are other reasons. That is not a deficit the mother suffers. The mother has clear boundaries. The mother has successfully parented two children with two fathers, maintained a job and has been most successful in ensuring her children have strong relationships with their respective fathers.
On the other hand the father’s capacity to spend significant and substantial time with his son, care for him for extended period and for Y is testament to his capable parenting qualities.
Both parents are committed to their child’s educational, emotional and psychological needs. The father is very fixed on the (omitted) school. The father is very fixed on things being the same for X, on him maintaining his schooling and in there being no change.
Ms D said dealing with change is a life skill. The mother is aware of this and shows her own skill in helping her children manage change. The mother has a demonstrated capacity in managing change for her children as with Y.
In 2012 Y went to live with her father on (omitted) by agreement for a period of time whilst the mother was posted overseas. Y’s father had to concede that the child was only to live with him until the mother’s return to Australia.
When the mother returned, Y said she wanted to stay. Y’s father, rather than honouring his agreement with the mother, played into Y’s hands and agreed she could stay. Y’s father complained in his evidence of the mother pressuring Y to return, alleged she said to her daughter if you do not return you won’t see me again etc. I accept X was very much missing Y. The mother cajoled Y to return to Australia and bought her return ticket to (omitted) as a show of good faith. Unsurprisingly when Y came home she wanted to stay with her mother, brother and friends.
Both Y and X’s fathers endeavoured to convince me this incident demonstrated the children are frightened of their mother; she pressures them and always gets want she wants. I do not see that as the appropriate way to view this event in hindsight. Y’s father failed to honour the agreement he reached with the mother and he and not the mother is to blame for this debacle. Where children live in the circumstances set out above is a matter of parental decision making not wishes. The mother acted in an appropriate way.
The mother has the skills to ensure X will spends time with his father as I am satisfied this is her strong wish and she will not let X dictate such matters. The mother has parented Y in this fashion as well. I am not so certain that the father could be as firm as the mother if X put up opposition to travelling to (country omitted) and he may fold to his son’s wishes as he currently does in many areas.
Further, the father has a more limited picture for his son than does the mother. He had great difficulty in agreeing his son will benefit from the big world picture that living in (country omitted) for 3 years will provide for him let alone the joy of a shared experience with his sister as the idea of X being separated from his father and his usual life in Australia is one the father struggles to contemplate.
The father struggled to disassociate this benefit for his son from the strong negative emotional impact such a consequence would have upon him. The father will be devastated if his son goes to (country omitted) for 3 years. X will not be as devastated in not seeing his father as his father will in not seeing X. The father nearly came to this realisation under cross-examination.
He said, “I can see it’s a wonderful opportunity to live in (country omitted) for three years and learn another language,” and stopped himself. When asked what was best for X, he said “his mother and sister not going to (country omitted)”. When asked, “What then? Because they are going to (country omitted)?” He replied “That he lives with me in Canberra.” That is the father’s focus and he cannot see past it.
Curiously the mother said in her affidavit and to Ms D that X does not enjoy school and he is struggling. This is not made out on the evidence and is to the contrary. In X’s school reports he is a well-liked member of the class, he plays well in the playground and is progressing well. He told Ms D he only had one friend, and that this friend’s name is (omitted). I do not accept the mother’s position in this regard.
Despite the father telling me his contract of employment expires at the end of November 2013, I do not accept the father will be without employment into the future. He has always been employed and this will continue. I find he will have funds to travel to (country omitted) should he so chose.
Ms D believed that the parents being apart may make communication easier for them and agreed travelling to (country omitted) and living in (country omitted) would be a wonderful experience for the children.
Ms D then went on a little frolic of her own and said as an aside that the mother may not be available to X because she is taking up this job in (country omitted) and will need to devote so much energy and time to her new job. There was simply no evidence to support that view and the reality is the mother’s position in (country omitted) is at the same level she has in Sydney although she now works part time and it will be full time in (country omitted). I am satisfied as to the mother’s hours of work and her proposals for the care of the children when they are not at school and she is at work.
Ms D agreed that at X’s age it is not the quantity of time you spend with the child, it is the quality of your time that maximises your relationship with the child. This is particularly so as X has a strong and established relationship with each of his parents. Ms D reiterated the relationship would change whatever order is made however I did not take that to mean any change would necessarily be a negative.
Ms D agreed if X lived with his father in Canberra or his mother in (country omitted) he should be able to Skype the other parent every day as is the mother’s proposal when he lives in (country omitted). Ms D agreed that if the father’s proposal was X should only Skype his mum or telephone his mum once a week this would not be a child focused approach and would show that he was not thinking of X and did not have the insight into X’s needs. This is the father’s pleaded proposal.
I am tasked to look at all the options and weigh up the positives and negatives of each having regard to the factors under the Act in section 60CC (2) & (3) in particular.
There are four options generated by the parties’ proposals.
a)The first is Y and X live in (country omitted) with their mother.
b)Secondly, X Lives in Canberra with his father and Y goes to (country omitted) with her mother.
c)The third, X lives in (country omitted) with his mother and Y lives with her father in Australia and then in (country omitted) from October 2014.
d)Fourthly, the second proposal put up by the father is that X either be delayed for 18 months or thereabouts in going to (country omitted), or he go to (country omitted) for 18 months and then return to live with his father.
Going to the fourth option. If X lives in (country omitted) for the first 18 months he will have adjusted to that life and then have to re-adjust to life in Australia without his mother and sister which will not be the case if he stays in (country omitted) for 3 years.
If he stays in Australia for 18 months he will have adjusted to that life then have to re-adjust to life without his father in (country omitted) where his sister has lived for 18 months without him, having learnt the language and formed friendships and a routine X has had no immersion in. X will be unable to speak (language omitted) and he may feel totally lost in those circumstances. He and Y will not share the experience together.
The father’s amended proposal has many inbuilt hurdles and difficulties for X yet would assuage some of the father’s needs. This proposition is further evidence of the father’s inability to contemplate X’s needs and best interests over his overwhelming need to have his son with him. This proposal would be the most damaging of all to X and compound what is already a difficult set of circumstances for X to deal with namely not having both parents in his life weekly. This proposal would maximise the impact of changes upon X not minimise them and was more focused on the father’s needs than X’s.
The mother has a 3 year posting and X will either go with her or stay with his father.
As to option 3, I have already determined the probable outcome if not the most likely or in reality only outcome is that Y will be living in (country omitted) with her mother and not in Australia and later (country omitted) with her father.
Going now to options 1 and 2.
If X is living in (country omitted) or Australia, there is a significant cost and expense in X spending time with either parent. To spend time with his other parent he will undergo lengthy international return flights at least 3 times a year as will his parents. However the cost and difficulty is the same whatever order I make. The parents know that whatever order I make X will engage in overseas lengthy travel at significant cost to his parents.
I accept the mother’s evidence that if X lives with her in (country omitted) her employer will fund 2 return flights to Australia for X.
The unaccompanied airlines policy exhibited by the father states children over the age of 5 years may travel internationally unaccompanied provided the flying time does not exceed six hours. That policy may be adhered to more in the breach than in practice. Ms D said she thought once X had travelled a few times on an international flight he would be able to adjust to travelling as an unaccompanied minor.
I accept the concerns the father has regarding X’s travel at age 9 as an unaccompanied minor if his sister is not with him. I agree with his father and if this be the position I reach I will order that until X is aged 10 in June 2015 X must be accompanied by either Y or an adult for the necessary transit between (country omitted) and Australia. Thus if Y is not accompanying X to Australia the mother is to arrange for him to be accompanied by a responsible adult or pay the father’s economy return airflight tickets to and from the transit destination.
The impact of change on X. There will be a significant impact whatever order is made. Ms D said whichever decision I make, X will have a different relationship with the parent he does not live with, as he will not be spending the same time with that parent as he is used to spending in Canberra, being five nights with his dad and the other 9 nights with his mother.
If X is in (country omitted) he will be taken out of his school and that will be a change. He will miss friendships. He has one good friend, (omitted). Most importantly, he will miss his father and that missing will be a significant loss as they have such a strong relationship. There will be a period of adjustment and upheaval, new culture, new language, new school, new systems to learn and deal with.
On the positive, he will be immersed in a culture that his parents are unable to offer him in Australia. He will learn another language. He will be at a school that the mother and father could not afford for him to attend in Australia that is, a private school teaching the (country omitted) system with access to the International Baccalaureate, which both the children will be engaged in.
X will have an opportunity to live in a country which is part of our (religion omitted) background and as the mother described, will walk past the (omitted) every day to go to school. He will be living with his mother and sister with whom he has primarily lived all his life. He and his sister will share this experience.
The advantages for X staying in Australia are that he maintains his strong relationship and time with his father; he maintains his schooling, where I accept, despite the mother’s claims, he is doing well. I accept he enjoys his school and he said so to Ms D. He will be able to maintain his relationships here in Australia.
His father will be able to engage him in extra-curricular activities. I accept that his father will continue to pick him up from school, and he will not be required to have after school care or a nanny, which he would require to have in (country omitted). I accept that living in Australia is an environment which he is familiar with.
The negatives are he will be separated from his mother and his sister, with whom he has always lived. He will be denied the opportunity of being immersed in another culture, learning another language, attending a school, and being involved in an environment very different to Australia.
He will not be able to share a common experience with his sister of a new life for 3 years which they will have with them for the rest of their lives. He will be separated from his mother and sister for three years. The longest period in one block that he has been separated from his mother was perhaps no more than 7 weeks in 2012 and he said he missed Mummy a lot.
He will not be immersed in the (country omitted) culture for 3 years. He will not have the opportunity of attending the school in (country omitted) for 3 years which is based on the (country omitted) system, and learning the language and another culture and be exposed to the experiences of living in (country omitted).
Life for him will be as for him as it is albeit without his sister and mother in his life daily.
Much has been made of Y and X’s relationship - as it should be. It is an important relationship and X has always lived with Y, save for a period of seven weeks last year when he lived with his dad and his mother went on a short term posting to (country omitted).
Y has had X in her life since she was age six. Y is certainly approaching age 14 and, as Ms D said, her own social behaviours and attitudes and needs will change and her relationship with X will change as she grows into the teenage years and then adolescent years. The posting is for three years. Those three years are a crucial time. There is a vast difference between Y now at age thirteen and a half and in three years when she will turn sixteen and a half going on seventeen.
For X and Y to be separated now would mean they miss out on the natural progression of their relationship as Y matures into adolescence.
Secondly, Mr Ridge raised a very important submission that Y and X will benefit from the shared experience and adventure of living in (country omitted), learning a new language, going to a new school and the myriad of other shared experiences such a significant change to their usual routine attends. They will be for each other an important focus and centring when they are in a new country with new language in a new environment. This mutual support is an important matter to X as he told Ms D his sister is the first person he would always go to if he was in difficulty. He will not have this support if he remains in Australia.
Separating X from Y may have profound and long term negative effects for X as she appears to be a rock for him even though I accept their relationship will change in the following 3 years.
Y clearly has a strong attachment to and relationship with her brother however the focus of this matter is the nature of X’s relationship with Y. Even if Y as a teenager begins the process of distancing herself from X over the next 3 years, Y will continue to remain for X an important part of his life.
The father’s proposal of X remaining in Canberra for 3 years or the 18 month proposal will cause a chasm in X and Y’s relationship.
If Y is living in (country omitted), Y will be spending her holidays with her father, which may in 2014 be in Australia, or perhaps in (country omitted) and after 2014 in (country omitted) or (country omitted) or maybe Australia.
I am not satisfied having heard Mr J’s evidence that he would agree to his holidays with Y being interrupted so that X and Y could spend time together. Mr J sought to minimise Y’s relationship with X and compared this life long relationship to Y’s relationship with his son A which I have no doubt is strong and positive. I do not see Mr J helping X on this issue.
When Y is in (country omitted) visiting her father or even if she is to live with him there is no prospect of X spending time with her unless X’s father takes him to her.
If X does not live with his mother and thereby Y as well he will spend very little, if no time at all, with his sister unless Y is spending time with her mother at the same time X does. With the differences in school holidays in Australia, (country omitted) and (country omitted) this may be difficult to achieve.
If X remains in Australia he will spend time with his mother in (country omitted), and in Australia when she can get here. If Y is with her mother then he will spend time with Y in his school holidays which are school times in (country omitted).
Even if I am incorrect and Y lives with her father in Australia and then (country omitted) and X with his father in Australia, X’s relationship with her will be fractured as they will no longer be living together sharing an experience and will be separated by significant distance. In those circumstances it will be very problematic for X to see his sister at all if he is not living with his mother in (country omitted).
Conclusion
Children are better able to deal with change if they are with the adult they are most closely, emotionally bonded and attached to and have always lived with. I find this to be X’s mother with the bonus of Y the one person in his life he said he could always rely upon.
X will suffer the loss of not seeing his father weekly. Their bond is strong. It will not be broken. His mother is skilled in assisting her children to deal with change and has a more positive attitude to X’s relationship with his father than the father demonstrated he has to X’s relationship with the mother. Ms D said the relationship will change. It will never be severed.
In oral evidence on the telephone, Ms D, when asked of the impact on X of being separated from his mother and his sister said, “well, that would be a double whammy for him. That is two people he has always lived with no longer living with him, his mother and his sister.”
On balance, I find that the mother’s application is the order that is in X’s best interest having weighed up all the evidence and the competing proposals. The worst option for X would be to separate him from his mother and sister, or if I am incorrect and Y is to stay in Australia then to separate him from his mother. I find this option may have a far greater negative emotional and psychological impact upon X than would be the case in being separated from his father.
I find it more likely than not that Y will be in (country omitted) with her mother and to use Ms D’s words this separation would be “a double whammy for X”.
The experience with his sister of living and schooling in (country omitted) for 3 years will be a shared experience which they will carry with them for the rest of their lives.
I find that the mother is superior to the father in setting boundaries for X and that the father may struggle to help X adjust to living without his mother and sister day to day which is not a concern I have of the mother’s parenting capacities in helping X to adjust to living without his father day to day for 3 years.
The father’s overwhelming need to have his son with him has made it difficult for him to see the benefits of the child living in (country omitted) for three years.
Having so found however the mother’s past conduct towards the father is bordering on reprehensible. The mother must desist from sending offensive, rude and disrespectful emails to X’s father. It does no good and the reality is X has a wonderful relationship with his father who is an excellent competent and caring parent.
The mother knows that if she does not make these orders work, and X does not spend the time with his father he should, in Australia and in (country omitted), the consequences will flow for her upon X’s return to Australia.
The only risk of harm to X is from their poor communication, and conduct, and attitude towards each other.
On the evidence I find the greatest negative impact on X will be being separated from his mother and sister with whom he has always lived rather than in being separated from his father.
As his mother and sister are going to (country omitted) in February 2014 I find the order in X’s best interest is that he accompanies his mother and sister to (country omitted) in 2014.
I certify that the preceding two hundred and fifty-three (253) paragraphs are a true copy of the reasons for judgment of Judge Henderson.
Date: 13 December 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Jurisdiction
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Remedies
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Statutory Construction
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